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Court ruling sets stricter limits on property variances

Building a garage or expanding your home just got trickier, thanks to a recent ruling by the Minnesota Supreme Court.

When Chester Park's Doug Breiland showed up at Duluth's Building Safety Office this summer with plans to replace his single-car garage with a two-stall garage, he recalls receiving assurances that getting the variance wouldn't be a problem.

"I was told: We see the same kind of thing all the time. It's not going to be an issue," he said of the request to deviate from requirements that structures be built a set distance from property lines, streets or neighboring buildings.

But when Breiland appeared before the Duluth Board of Zoning Appeals for a hearing on his variance request, he learned that the Minnesota Supreme Court had dropped a bomb on his plans.

The dealbreaker was called Krummenacher v. the city of Minnetonka, a case that involved a dispute between neighbors over plans to expand a garage. In deciding the case, the Supreme Court ruled that following the letter of state law, a variance could be granted only if denial would cause the property to have no other reasonable use. The court raised the bar on property owners, requiring them to demonstrate a genuine "undue hardship" in order to qualify for a variance.

Under this interpretation, wanting a two-car instead of a single-car garage doesn't cut it in a variance request, Duluth Assistant City Attorney Alison Lutterman said.

She said the recent ruling overturned more than

20 years of legal precedent. In 1989, the Minnesota Court of Appeals, decided in Rowell vs. the Board of Adjustments of Moorhead, that the "undue hardship" standard could be met when an owner wanted to put his or her property to use in a reasonable manner prohibited by ordinance.

"Under this standard, a variance could be granted even if the property owner already enjoyed a reasonable use of the property and simply wanted to change the use to a different reasonable use," said Lutterman.

"The decision definitely impacts people's ability to get a variance, and it also impacts their decision to even submit an application," Lutterman said.

The filing fee for a variance is $125 in Duluth.

All told, Breiland figures he had invested about $1,000 to draw up plans for a garage and submit all the necessary paperwork for his project to the city. He appealed to the City Council, which ultimately overturned the zoning board ruling and granted him a variance in September.

Still, Breiland said that uncertainty about the legitimacy of the variance has kept him from starting work on a new garage. Although his current neighbors are supportive of his building plans, he worries that a future neighbor could challenge his right to put up a garage after it was already built and maybe even force him to tear it down.

"I'm not going to build it until the law changes, given the amount of money at stake," Breiland said. He estimates the new attached garage will cost $35,000 to $45,000 to construct.

The recent Supreme Court decision has caused heartburn for cities across the state, said Tom Grundhoefer, general counsel for the League of Minnesota Cities.

"Obviously, it dramatically limits the circumstances under which cities can grant variances," he said. "The decision is most detrimental to property owners."

But Grundhoefer said cities lose out, too.

"From cities' standpoint, it limits their ability to approve projects they would want to see happen. It's hurting development at a time when cities can least afford that," he said.

Grundhoefer said the League of Minnesota Cities has discussed their concerns with a number of lawmakers, and he's optimistic a legislative change will occur to grant cities more latitude in granting variances.

In the meantime, a lot of new garages or home additions will have to wait.