The Free Press, Mankato, MN

Local News

March 16, 2013

Stakes are high on Marigold variance issue

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




 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."

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