The Free Press, Mankato, MN

March 16, 2013

Stakes are high on Marigold variance issue

North Mankato City Council to meet Monday night to consider contentious project

By Mark Fischenich
The Free Press

NORTH MANKATO — When the North Mankato City Council meets Monday night to decide the fate of a $10 million apartment building development on a long-vacant downtown lot, council members will have to do more than decide if they like the project or not.

They'll also have to go beyond deciding if support for the contentious Marigold complex outweighs opposition.

Because the project requires a series of variances, the council will be tasked with interpreting state law -- maybe even case history -- about the legal meaning of terms like "in harmony" and "reasonable use" and "essential character of the locality." Both project developer Van Moody and neighboring homeowners opposed to his plans have hinted that the issue could go to court if they don't like the council's decision.

So, whatever the council decides, the city may end up revisiting the issue in a courtroom.

Following is some information from the League of Minnesota Cites and a Twin Cities land-use attorney about the reasons cities are restricted by state law in issuing variances and some of the issues the council must wrestle with.

"Safety, morals and

general welfare"

A variance, essentially, is permission from a city council for a property owner to break the rules. The rules are land-use restrictions in the city code that regulate where certain types of buildings can be built, how they can be used, how big they can be, how much open space must be left around them, and much more.

State law explains why an individual's property rights can be restricted, saying the rules promote "the public health, safety, morals and general welfare ... ."

The ordinances also protect the value of neighboring properties by preventing, say, a hog rendering plant from sprouting up next to restaurant or a 20-story  office building from being placed in a housing development.


 In the Marigold case, a four-story 58-unit apartment building is proposed for a lot between the Belgrade Avenue business district and the single-family homes just north of Belgrade.

City code restricts apartment buildings to 12 apartments -- about one-fifth as many as planned. A building of the size proposed also must be on a lot nearly twice as big, under the code.

Other provisions of the code -- regulating the amount of open space, lot width, a building's distance from neighboring properties, and the percentage of a lot that can be covered by structures -- are also violated by the Marigold project. So for the project to be constructed, multiple variances must be approved.

With the idea that there's an exception to every rule, state law allows cities to approve building projects that don't meet standards set in the city code. These variances, however, can be granted only if a series of tests are passed and only if the variances are "in harmony with the general purposes and intent" of the zoning ordinance.

"Practical difficulties"

Cynthia Kirchoff, a St. Paul attorney who practices in the area of land-use law, said she isn't sure how "in harmony" would be defined in this particular context. But the big test for granting variances is a three-parter, and the developer must bat three for three.

"Variances are allowed when the applicant demonstrates 'practical difficulties,'" Kirchoff said.

The first part of the "practical difficulties" test is that the applicant has to be proposing to use the property "in a reasonable manner." The second part is that the "plight of the landowner is due to circumstances unique to the property not created by the landowner." Thirdly, the variance can be approved only if the project does not "alter the essential character of the locality," according to state law.

The second part of the test involving unique characteristics of the Marigold lot could be a challenging one for project supporters to pass based on case law. According to a League of Minnesota Cities' guide to variances, "... the focus of this factor is whether there is anything physically unique about the particular piece of property, such as sloping topography or other natural features like wetlands or trees."

The Marigold lot is a perfectly flat gravel lot. Developer Van Moody has noted that the soils are somewhat problematic for construction purposes and that one corner of the rectangular lot is lopped off.

Moody has also told the council that city staff didn't inform him of the need for variances until after he had invested years of time and substantial money into the development.

Kirchoff, speaking in general terms and not about the North Mankato case, said the failure of staff to inform a property owner about needed variances isn't relevant to the unique circumstances test.

"No," said Kirchoff, citing a 2010 appeals court case. "Those who deal with government are expected to know the ordinances."

Variances also can't be permitted solely to help a property owner recover investments, according to the LMC.

"State statute specifically notes that economic considerations alone cannot create practical difficulties," the LMC guide states. "Rather, practical difficulties exists only when the three statutory factors are met."

"Essential character"

The third part of the test is that variances aren't allowed if they would "alter the essential character of the locality."

The LMC guide suggests a city council (or board of adjustment), when looking at the "essential character" part of the test, "consider whether the resulting structure will be out of scale, out of place, or otherwise inconsistent with the surrounding area."

 Whether the Marigold project clears this hurdle has been debated at recent North Mankato council meetings, and it sometimes appears that the opposing  opinions  literally reflect different viewpoints.

People looking to the north and northwest from the vacant gravel lot see a working-class neighborhood of single-family homes with small yards and large trees. A four-story, 58-unit apartment building, opponents say, would obviously alter the character of a traditional residential neighborhood.

People looking south see a small-town business district with one and two-story shops, offices and eating and drinking establishments. Opponents and supporters of the apartment building strongly disagree about whether the building does or doesn't fit with the character of the Belgrade Avenue business district.

Moody has also asked the council to look to the east side of the lot, where a fence blocks an expressway off-ramp, suggesting that the "essential character" of this particular locality is almost impossible to label.

Trustee, delegate

and lawyer

Bottom line for the city council members? They will be tasked with going beyond the traditional conflicting roles of elected officials of being a delegate or a trustee.

When it comes to variances, the LMC warns council members that being a delegate -- someone who simply reflects the will of the majority of his or her constituents -- doesn't work: "If neighborhood opinion is a significant basis for the variance decision, the decision could be overturned by a court."

Just being a trustee -- an elected official who simply judges what's best for the city and its future, regardless of public opinion -- won't cut it either under variance law. The council's decision on whether or not to grant the variances has to be in accord with the law, and the LMC  advises a city council to document that in a very lawyerly way -- listing the relevant facts and conclusions as to how and why each of the three Òpractical difficulties' factors were or were not met.