§ 36-68. Powers and duties of board.

(a)

The board of appeals and adjustments shall have the power and duty of hearing and deciding, subject to appeal to the city council, the following:

(1)

To hear requests for variances from the requirements of this chapter, including restrictions placed on nonconformities. Variances shall only be permitted when they are in harmony with the general purposes and intent of this chapter and when the variances are consistent with the comprehensive plan. Variances may be granted when the applicant for the variance establishes that there are practical difficulties in complying with the zoning ordinance. The term "practical difficulties," as used in connection with the granting of a variance, means that the property owner proposes to use the property in a reasonable manner not permitted by this chapter; the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the essential character of the locality. Economic considerations alone do not constitute practical difficulties. The term "practical difficulties" includes, but is not limited to, inadequate access to direct sunlight for solar energy systems. Variances shall be granted for earth-sheltered construction, as defined in Minn. Stats. § 216C.06, subd. 14, when in harmony with this chapter. The board of appeals and adjustments or the city council, as the case may be, may not permit as a variance any use that is not allowed under this chapter for property in the zone where the affected person's land is located. The board or city council, as the case may be, may permit as a variance the temporary use of a one-family dwelling as a two-family dwelling. The board or the city council, as the case may be, may impose conditions in the granting of variances. A condition must be directly related to, and must bear a rough proportionality to, the impact created by the variance;

(2)

Appeals in which it is alleged that there is an error in any order, requirement, decision or determination made by an administrative officer in the interpretation or enforcement of this chapter;

(3)

Requests for variances from the literal provisions of article XI of chapter 26;

(4)

Requests for modifications from the requirements of article II of chapter 34;

(5)

If a variance request is part of another land use application, including, but not limited to, a conditional use permit, rezoning and preliminary or final site plan, the decision by the zoning board of appeals is automatically appealed to the city council. The city council would then take official action on the applications, including the variance. If a variance request is made along with a certificate of appropriateness for the heritage preservation board, the zoning board of appeals decision is not automatically appealed. The final decision of the board of appeals would stand unless appealed; and

(6)

If a land use or zoning permit or approval for a building in such location is denied, the board of appeals and adjustments shall have the power, upon appeal filed with it by the owner of the land, to grant a permit or approval for building in such location in any case in which the board finds, upon the evidence and the arguments presented to it, that:

a.

The entire property of the appellant, of which such area identified for public purposes forms a part, cannot yield a reasonable return to the owner unless such a permit or approval is granted; and

b.

Balancing the interest of the municipality in preserving the integrity of the official map and of the comprehensive municipal plan and the interest of the owner of the property in the use of the property and in the benefits of ownership, the grant of such permit or approval is required by considerations of justice and equity.

(b)

In addition to the notice of hearing required by Minn. Stats. § 462.354, subd. 2, a notice shall be published in the official newspaper once, at least ten days before the day of the hearing. If the board of appeals and adjustments authorizes the issuance of a permit or approval, the city council or other board or commission having jurisdiction shall have six months from the date of the decision of the board to institute proceedings to acquire such land or interest therein, and if no such proceedings are started within that time, the officer responsible for issuing permits or approvals shall issue the permit or approval, if the application otherwise conforms to local ordinances. The board shall specify the exact location, ground area, height and other details as to the extent and character of the building for which the permit or approval is granted.

(Code 1970; Code 1992, § 850.04(2)B)

State law reference

Power and duty of board of appeals and adjustments, Minn. Stats. §§ 462.357(6) and 462.359, subd. 4.