Tag: Unnecessary hardship standard

The notion of a house without a garage is “disagreeable in Wisconsin”

by Kaitlin Heinen

State of Wisconsin v. Manitowoc County Board of Adjustment
(Wisconsin Court of Appeals, February 13, 2013)

In 2010, Rebecca Rach built a house on Wilke Lake in the Town of Schleswig.  When she purchased another piece of land at the back of her residence, the Town built a road on part of it to give 4 lake residents access to a main road. The remainder of the land is wetland. Rach petitioned the Manitowoc County Board of Adjustment for a variance to construct a 4’ x 50’ walkway and a 40’ x 40’ patio adjacent to a concrete porch on the east side of her house, facing the lake.  The patio would intrude 49 feet into the 75-foot required shoreland setback.  Rach argued that without the variance, she would suffer an unnecessary hardship because there was no other place on her lot to construct a patio. Board members conducted an on-site inspection of Rach’s property and held a hearing on her request.  Rach and her husband presented a landscaping plan showing that the patio would be built with materials and plantings to aid infiltration and catch any runoff.  The Town stated in a letter that its board and planning commission both approved Rach’s variance request.  However, the Wisconsin Department of Natural Resources, by a letter from a shoreland zoning specialist, opposed the variance, citing the lack of unnecessary hardship and the negative effects the patio and walkway encroachment would have on the lake.

Rach’s husband testified that they could not have built their house further back because the land behind their house was for sale after they had built and that, with the remainder of the land being wetland, there is no room to build a patio.  A Board member even commented, “I don’t think [the DNR shoreland zoning specialist] realized that…. He wasn’t there [at the property].” So the Board concluded that Rach faced an unnecessary hardship because the wetlands behind the house is not suitable for a patio; the landscaping of the patio would handle runoff; and the variance would not be against the public interest because the landscaping would screen the patio from the lake, beautify the shoreline, and create a buffer to prevent runoff.  The Board reduced the walkway’s width from 48 to 42 inches and the patio’s length from 40 feet to 20 feet, cutting the setback intrusion to 29 feet. The variance was approved as modified.  The State filed a complaint in the circuit court, which affirmed the Board’s decision.  So the State appealed to the Wisconsin Court of Appeals.

The Wisconsin Court Appeals reviewed the Board’s decision by applying the substantial evidence test to determine whether the evidence before the Board was sufficient. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” In its review, the court must presume the correctness of the Board’s decision. When a variance request is before the Board, it must decide whether denying the variance would impose an unnecessary hardship on the landowner. Unnecessary hardship must be based on conditions unique to the property itself and cannot be self-created. The State argued that Rach failed to produce sufficient evidence of “unnecessary hardship” and that the hardship Rach faced was self-created because she built the house a year before applying for the variance, choosing its size and where to situate it on the lot.  The State also argued that a patio is not essential and if Rach wants one she can build it, instead of a garage, at the back of the house. However, the court reasoned that even if Rach could construct the patio on the wetland, substantial evidence existed to support the Board’s decision because the State’s arguments ignored that building the patio behind the house would leave Rach without a garage—”disagreeable in Wisconsin.”

The Board must evaluate the hardship with the purpose of the zoning restriction in mind, and a variance cannot be against the public interest. The purpose of a shoreland zoning ordinance “is to protect navigable waters and the public rights therein from the degradation and deterioration which results from uncontrolled use and development of shorelands.” Since the Board considered the purpose of the ordinance and after viewing the site and taking testimony from the Town and the DNR, it modified the variance by imposing conditions designed to protect the shoreland setback zone. It found that, as modified, the construction would not be against the public interest. The Board acted within its authority, so the Wisconsin Court of Appeals concluded that the Board’s decision to grant the variance to Rach was supported by sufficient evidence.

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Claimants fail to demonstrate unnecessary hardship in request for variance from 5-acre minimum lot size

by Kaitlin Heinen

Gordon & Kathy Michaels v. Town of Farmington, et al.
(Wisconsin Court of Appeals, January 3, 2012)

Gordon and Kathy Michaels have operated a 340-acre dairy farm in the Town of Farmington since the 1970s and hoped to develop or sell the land to fund their retirement.  In 2005, the Town adopted a new zoning code and revised its subdivision ordinance.  The zoning ordinance established 5-acre minimum lot sizes.  The subdivision ordinance limited the number of building permits that could be issued per year. The Michaelses sought a variance to allow them to develop their acreage into 1½-acre lots.  They claimed they could not sell their farm to a developer due to a unique and unnecessary hardship as a result of the ordinances and other stray voltage issues.  The circuit court ordered the Town to convene the Board of Zoning Appeals and allow the Michaelses a hearing, but the BOZA denied their variance request.

When the Michaelses appealed this decision, the circuit court remanded the case and ordered the BOZA to issue a decision that stated its reasons for denying the variance. The BOZA clarified that the Michaelses’ evidence was based solely on economics, and the stray voltage issues did not qualify as an unnecessary hardship because the Michaelses still operated their dairy farm.  The circuit court concluded that the BOZA’s decision was not arbitrary, oppressive, or unreasonable and that the BOZA could reasonably deny the Michaelses’ variance request, which the Michaelses appealed to the Wisconsin Court of Appeals.

The Michaelses argue that since they spent six years trying to get the hearing, it was unfair for the circuit court to allow the BOZA a “do-over” to supplement its earlier decision.  The Wisconsin Court of Appeals disagreed and held that the circuit court properly remanded the case to the BOZA for it to better express its reasonings for denying the Michaelses’ variance request.

Next, to determine whether a variance imposes an unnecessary hardship depends on whether compliance with the restrictions would unreasonably prevent the owner from using the property for a permitted purpose. The BOZA noted that to grant a variance to the zoning ordinance, it had to find beyond a reasonable doubt the existence of all of the following:  “(1) preservation of the intent of the ordinance; (2) ‘exceptional, extraordinary, or unusual circumstances or conditions’; (3) preservation of the property rights of others; (4) the variance request was not due to self-imposed hardship or solely on the basis of economic hardship; and (5) the absence of decrement.” The BOZA found that the Michaelses proved none of these criteria.  Instead it found that the primary use for the Michaelses’ property is agricultural; that granting a variance to allow 200+ residential building sites is not consistent with the primary zoning; that the Michaelses continue to farm the property despite the stray voltage issues; that the Michaelses’ motivation was based solely on economic considerations (the property would be sold for less than they hoped without a variance); that granting a variance is not necessary to preserve their property rights to farm their land; and that granting a variance is contrary to the purpose and spirit of the zoning code because it would change the agricultural conduct of the area and would alter the density and distribution of the Town’s population.

The Michaelses also argued that the 2005 ordinance severely limited growth with no sunset provision, which causes an unconstitutional permanent moratorium. However, this claim applies to a  rate-of-development (ROD) bylaw enacted fifteen years earlier, which limited the number of building permits the town could issue in a year.  Although similar to the Town’s subdivision ordinance, the ROD ordinance was not at issue in case because the Michaelses never applied for a number of building permits over the limit. Furthermore, the Michaelses failed to demonstrate, beyond a reasonable doubt, that an unnecessary hardship results from compliance with the Town’s ordinances.

Finally, the Michaelses argue they are entitled to attorney fees under 42 U.S.C. § 1988(b) in this action. However, the circuit court concluded that the Michaelses’ procedural and substantive due process rights were not abridged.  They were afforded a remedy by getting the hearing to which they were entitled. They also did not establish either that the 2005 ordinance is “clearly arbitrary and unreasonable,” with “no substantial relation to the public health, safety, morals or general welfare,” or that they were the victim of administrative action that “shocks the conscience.” Public welfare certainly can be related to the orderliness of community growth by the minimum-lot size ordinance in question.  Thus the Michaelses have not shown that the circuit court erroneously exercised its discretion in denying their bid for attorney fees.

The Wisconsin Court of Appeals affirmed the Town of Farmington’s Board of Zoning Appeals’ decision.

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Business growth is a self-created hardship for variance purposes

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by Kaitlin Heinen

Larry Hacker et al. v. Sedgwick County, Kansas Board of Zoning Appeals
(Kansas Court of Appeals, September 14, 2012)

Norman and Leatha Hein have operated a lawn care business from their rural home for 30 years. Their property is zoned as RR Rural Residential. In 2010, the Heins filed a petition with the Sedgwick County, Kansas Board of Zoning Appeals for three variances: “(1) to allow up to 20 employees with no more than 15 on site in excess of 1 hour per day; (2) to allow the use for business purposes of existing outbuildings with a combined floor area exceeding 3,000 square feet; and (3) to allow outdoor storage closer to the street than the buildings used for the business and closer than 200 feet from property lines.” The Heins alleged that these variances were necessary because they had acquired additional customers. Also, more equipment was stored at their property, and the new variances would allow the employees to perform necessary equipment maintenance on the property, especially during inclimate weather.

In October of 2010, the Board held a meeting at which the Heins’ petition was considered. The Board looked at the five criteria under K.S.A 12-759(e)(1) that must be met before the Board can grant a variance as well as the Board staff’s report, which recommended that only two of the three variance be granted under certain conditions. At this meeting, Norman Hein explained that the first variance was necessary to allow six drivers to transport lawn care equipment instead of the four needed in the past. It would also allow employees to gather at the property and share rides with each other to the job sites and account for the need to perform equipment maintenance on the property.

Several neighbors and customers spoke in support of the Heins’ petition at the meeting.  The exceptions were Richard Gronniger and Terry and Larry Hacker.  Gronniger owned property south of the Heins’, and Hacker operated Kansas Paving (a sand pit) on Gronniger’s property. Kansas Paving was paying for maintenance of the road (~$15,000 per year) that separates Gronniger’s and the Heins’ properties in accordance with the conditional use permit given to operate the sand pit. Gronniger and Hacker argued that the Heins should also be required to apply for a conditional use permit and contribute to road maintenance costs.

The Board initially found that all five criteria under K.S.A. 12-759(e)(1) had been met for each variance and granted all three for the Heins.  Larry Hacker, Terry Hacker, Richard Gronniger, and Kansas Paving filed a petition in the district court challenging the reasonableness of the Board’s decision. After the district court twice reversed the Board’s decision, the Board appealed to the Kansas Court of Appeals, arguing that the plaintiffs lacked standing to appeal the Board’s decision, and so the district court, by extension, lacked jurisdiction to rule on the matter. The Board also argued that there was substantial evidence to support its finding of a hardship that was not self-created by the Heins in accordance with 12-759(e)(1)(C).

The Board argued that the plaintiffs’ only way to appeal its decision was under K.S.A. 12-759(f), which allows appeals from any person “dissatisfied with” a board of zoning appeal’s decision. The Board urged that the district court interpret the phrase “dissatisfied with” so as to give standing only to the original parties of a board’s proceedings, which is a smaller class of persons than those who may be “aggrieved by” a board’s decision under K.S.A. 12-760. The Board also argued that the plaintiffs did not have a particularized interest affected by its decision. To the contrary, the plaintiffs argued that they can appeal under both K.S.A. 12-759(f) and K.S.A. 12-760. The plaintiffs alleged that the Board’s above interpretation would prevent neighbors from appealing a board’s decisions that adversely affect their interests. The plaintiffs also held that they have a particularized interest in the increased traffic on and the increased maintenance costs of the road in question.

The Kansas Court of Appeals addressed the two relevant statutes at issue in this case: K.S.A. 12-759(f) and K.S.A. 12-760. The court held that a specific statute will control over a general statute. Since K.S.A. 12-759(f) applies only to decisions made by a board of zoning appeals, it is more specific than K.S.A. 12-760, which applies to multiple kinds of boards. Even so, the court ruled that the test for “dissatisfied with” in K.S.A. 12-759(f) should be considered the same as the test for “aggrieved by” in K.S.A. 12-760. The Kansas Court of Appeals cited its former decision in Tri-County Concerned Citizens, Inc. v. Board of Harper County Comm’rs that found that the plaintiffs had standing under K.S.A. 12-760 because the plaintiffs would suffer a pecuniary loss as a result of the county’s decision to allow a waste disposal company to build a new landfill nearby. Applying this decision to the current case, the court ruled that the Hackers, Gronniger, and Kansas Paving had a substantial grievance and a pecuniary interest in the effects of the Board’s decision, granting them standing under K.S.A. 12-759(f).

The Kansas Court of Appeals stated that under K.S.A. 12-759(e)(1), a board of zoning appeals is authorized to grant a variance only if all five statutory criteria are met. The only criterion at issue was the finding of an unnecessary hardship. In the past, the Kansas courts have held as a general rule that a variance may not be granted to relieve a self-created hardship. The Board argued that an unnecessary hardship may be found where hardship is imposed by self-created business growth. The plaintiffs argued that it cannot.  Citing four different cases as precedent, the Kansas Court of Appeals found that there was no indication that the Heins would lose their business without the variances; the business would simply be less profitable. Considering this, self-created business growth is not an exception to the general rule that an unnecessary hardship may not be self-created.

The Kansas Court of Appeals concluded that the district court rightly found that the Board acted outside its scope of authority in granting the variances. The Heins expanded their business with full knowledge of the zoning regulations under which they were operating. Because the Board’s findings were not supported by substantial evidence, the district court’s rule to vacate the variances granted by the Board was affirmed.

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Minn. shoreland zoning variance requirement of unnecessary hardship still applies to requests for area variances

Gary Taylor

by Victoria Heldt

Ed Mutsch, et al. v. The County of Hubbard, et al., Daniel J. Rehkamp, et al.
(Minnesota Court of Appeals, April 30, 2012)

The Rehkamps own property on Fifth Crow Wing Lake in Hubbard County (County) that is operated as a resort.  The property includes 11 boat slips.  In November 2009 the Rehkamps applied for a conditional use permit (CUP) to convert the resort into a residential planned unit development (PUD).  The request was heard by the County Planning Commission, the Zoning Board of Adjustment (ZBA), and the County Board of Commissioners.  The Board of Commissioners initially approved the CUP with three permanent boat slips and one access dock, per the County’s Shoreland Ordinance.  It recommended that the Rehkamps apply to the ZBA for a variance in order to retain all 11 boat slips.  The Rehkamps did so and were granted a variance.  The entire plan was approved by all necessary boards in April 2010.  Days after approval, Ed Mutsch (a resident on Fifth Crow Wing Lake) filed a complaint challenging the issuance of the variance.  The district court reversed the granting of the variance, concluding that the ZBA’s decision was arbitrary, capricious, and not according to law since it did not consider all the factors required by law.  This consolidated appeal followed.

On appeal, the Rehkamps first argued that Mutsch lacked standing to appeal the ZBA’s actions because he did not participate in the hearings and meetings regarding the variance.  The Court dismissed this argument, noting that Minnesota statute grants the right to appeal a ZBA decision to any aggrieved person without any requirements to participate in initial proceedings.  Since Mutsch is a property owner on Fifth Crow Wing Lake and evidence shows his property value will likely decline as a result of the additional boat slips, he qualifies as an “aggrieved person.”

The second issue questioned what type of zoning variance the ZBA granted since it was never specified during the trial.  Mutsch purported that it was a use variance, which requires a showing of “particular hardship” while the Rehkamps argued it was an area variance, which only requires a showing of “practical difficulties” according to the Minnesota Supreme Court’s opinion in In re Stadsvold (2010). The Rehkamps argued that Mutsch waived the argument that it was a use variance when the issue was not property raised in district court.  The Court agreed, and declined to address the question since it was not properly raised in initial proceedings.  Consequently the Court of Appeals analyzed the variance as an area variance.

Next, the Rehkamps and the County challenged the district court’s determination that the ZBA’s decision was arbitrary and capricious.  The district court concluded the decision was arbitrary because the ZBA failed to consider all of the required factors.  In regard to variances, there are two relevant guidelines for the Court to consider.  Section 1104 of the local Shoreland Ordinance provides a list of factors to consider and requires applicants to show an “unnecessary hardship” to receive a variance.  In addition, a list of factors provided in the Stadsvold opinion is applicable when determining whether an area variance is warranted.  The County first argued that, in light of the Stadsvold decision, section 1104 of the Shoreland Ordinance (unnecessary hardship) no longer applies to area variances in the shoreland zoning area, but rather the “practical difficulties” test solely should be applied.  The Court rejected this argument, ruling that the Stadsvold opinion did not render section 1104 of the Shoreland Ordinance inapplicable to area variances requested on land to which shoreland zoning applies.

The Rehkamps next argued that the BOA “melded” the factors in the Stadsvold opinion with the factors in section 1104.  The ZBA was required to “articulate the reasons for its ultimate decision, with specific reference to relevant provisions of its zoning ordinance.”  The ZBA used a worksheet addressing each of the six Stadsvold factors (practical difficulties) when making its decision.  The Court concluded that, since those six factors are not the same as the factors listed in section 1104, it did not “sufficiently articulate its reasons for ruling that the section 1104 factors (unnecessary hardship) were satisfied.”  It found the ZBA’s decision to be premature, not necessarily arbitrary and capricious.  It therefore remanded that portion of the decision to the ZBA for further consideration of the section 1104 standards.

The Rehkamps’ last argument was that the district court erred when it determined that not all of the ZBA’s findings in regards to the Stadsvold factors (practical difficulties) were supported by the record.  The Court reviewed the evidence that supported each of the ZBA’s findings and found each to be supported by the record.  It therefore reversed that part of the district court decision which found that the ZBA’s decision regarding the Stadsvold factors were not met.

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Court affirms decision to approve renovation of historic hotel

Gary Taylor

by Victoria Heldt

Frederic E. Mohs, et al. v. City of Madison
(Wisconsin Court of Appeals, October 27, 2011)

In this case, Mohs, among other landowners, challenged the City of Madison Common Council’s decision to grant a Certificate of Appropriateness to Landmark X.  The Edgewater Hotel, owned by the Faulkner family, was in need of renovation in order to be “economically sustainable.”  Landmark X, a development company, planned to purchase the property for redevelopment.  Since the building was located within an historic district, Landmark X needed a Certificate of Appropriateness from the City’s Landmarks Commission.  The Commission denied the certificate, but the City’s Common Council overruled that decision within its jurisdiction and granted the certificate.  The case went to the circuit court, which affirmed the Council’s decision.

The Court begins its analysis by noting that, in a certiorari review, the appellants (in this case the landowners) have the burden to show whether 1) the governmental body’s decision was within its jurisdiction; 2) the body acted according to law; 3) the decision was arbitrary or oppressive; and 4) the evidence of record substantiates its decision.  The Court found that the landowners failed to meet the burden.  They based most of their argument on the governing ordinance which read:

“The Council may, by favorable vote of two-thirds (2/3) of its members, based on the standards contained in this ordinance, reverse…the decision of the Landmarks Commission if, after balancing the interest of the public in preserving the subject property and the interest of the owner in using it for his or her own purposes, the Council finds that, owing to special conditions pertaining to the specific piece of property, failure to grant the Certificate of Appropriateness…will cause serious hardship for the owner, provided that any self-created hardship shall not be a basis for reversal…”

The Landowners first took issue with the word “owner” that appears within the ordinance.  They argued that since Landmark X did not own the property, it could not experience any hardship from the withholding of a Certificate.  The Court rejected this argument, concluding that the existing condition of the building (which the granting of the Certificate hopes to alleviate) presents a hardship for anyone who owns or intends to own the building.

Next, the landowners turned to the ordinance’s requirement that the governing body balance the public and private interest in the property.  They claimed that the Council failed to address this within their ruling.  Landmark X supported the claim with the ruling in Lamar Central Outdoor, Inc. v. Board of Zoning Appeals of Milwaukee in which the Court reversed a municipality’s decision because it lacked an explanation of reasoning.  Here, the Court found that the Lamar claim was forfeited because it was not preserved in trial court.  The claim appeared for the first time in a reply brief, which is disallowed.  The Court clarified that, even if it had reviewed the Lamar claim, it would have been rejected.  It found that comments made by a Council-member expressed that the renovation would serve both public and private interests in the dilapidated building.  These comments constituted a showing that the Council analyzed the situation in light of both public and private interests.

Under the umbrella claim that the Council failed to make required findings Landmark X made several more arguments, all of which the Court rejected.  They argued that the Council failed to meet the “special condition” requirement of the ordinance.  They interpreted the ordinance to mean that the hardships endured by the owner must be unique and, in this case, the conditions were not specific to Edgewater.  They purported that this situation could be similar to that faced by other building and hotel owners.  The Court rejected this argument due to lack of analysis and support.  In the remainder of the opinion, the Court dismissed three more minor claims due to a lack of support and a failure to present a logical argument.  The trial court’s decision was affirmed.

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Minnesota amends code to change variance standard

Gary Taylor 1 Comment

by Gary Taylor

In the 2010 decision Krummenacher v. City of Minnetonka (our post on the decision can be found here) the Minnesota Supreme Court adopted a restrictive interpretation of “undue hardship” for city boards of adjustment to apply when deciding on variance applications, similar to the interpretation of unnecessary hardship applied by the Iowa courts throughout the years.  Unlike Iowa, however, the Minnesota Legislature quickly remedied the situation by passing legislation that put a “practical difficulties” standard into Minnesota state code (Minnesota House File 52 can be found here).  Under the new law, practical difficulties means (1) the property owner proposes to use the property in a reasonable manner permitted by the ordinance, (2) the owner’s plight is due to circumstances unique to the property not created by the owner, and (3) the variance will not alter the locality’s essential character.  If the variance is granted with conditions, those conditions must be directly related to, and bear a rough proportionality to the impact of the variance.

The difference between “undue hardship” as applied by the court, and “practical difficulties” as passed by the legislature, is the absence of the requirement that the landowner show the property cannot be put to a reasonable use but for the variance.  Again, this is nearly identical to the challenge facing landowners and boards of adjustment in Iowa.  There was a bill introduced in the last Iowa legislative session to put “practical difficulties” in the Iowa Code, but it did not make it out of committee.

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Minnesota Supreme Court adopts restrictive interpretation of “unnecessary hardship”

GT NOTE:  This is an interesting case for Iowa planners and board of adjustment members because the Minnesota Supreme Court is interpreting variance language in the Minnesota statutes that is identical to that found in the Iowa Code.  They reach the same conclusions as previous Iowa court cases.

by Melanie Thwing

Krummenacher v. City of Minnetonka
(Supreme Court of Minnesota, June 24, 2010)

JoAnne Liebeler owns property in Minnetonka, MN. There is a detached garage on the property, which sits 17 ft from the property line. Minnetonka City Code §300.10 states that a detached garage must be set at least 50 feet from the property line, but the structure was built before this ordinance and thus grandfathered in. In March 2008, a variance was filed by Liebeler, which is required by Minnesota Stat. to add a living space above the nonconforming garage.

A public hearing occurred in March where her neighbor, Krummenacher, spoke against the variance. He argued that this addition obstructed his view. The request was ultimately approved with the planning commission stating: 1.) an undue hardship would occur without it, 2.) a unique circumstance of nonconformity,  3.) compliance with the intent of the ordinance, and 4.) the variance would not alter the neighborhood character.

Krummenacher challenged the Commissions decision with the City Council, who ultimately sided with the Commission. Krummenacher then filed an appeal in district court, which affirmed, and the Court of Appeals, which also affirmed. Finally he appealed to the Supreme Court of Minnesota.

He argued that 1.) Minnesota Stat. § 462.357 does not allow the City to grant a variance that would expand a nonconforming use, 2.) the approval was arbitrary and 3.) the district court erred because they did not require the City to produce additional documents.

Krummenacher first argues that Minnesota Stat. § 462.357 1(e) does not allow the expansion of a nonconforming use. The statute itself states in part A. that any nonconforming use in place before the statute may continue to be used but not expanded. However, part B. states that they may permit expansion to, “prevent, and abate nuisances and to protect the public health, welfare, or safety.” Section B. also grants cities discretion to issue permits.

The Supreme Court looks at Minnetonka City Code § 300.29(g)(1) which allows for expansion as long as a variance is obtained. Because the State entrusted the power within the city to issue permits, and because Liebeler did this, the City was within its authority to consider a variance for a nonconforming use.

Next, Krummenacher argues that the decision was arbitrary because the correct standard to define “undue hardship” was not applied. He argues that the standard in Minnesota Stat. § 462.357 subd. 6., requires proof of the property not being usable, that the landowner is in a difficult spot because the structure was in place before the property was bought, and the essential character of the neighborhood would not be altered.

The City urged that the “reasonable manner” standard set forth in the Minnesota Court of Appeals case of Rowell v. Board of Adjustment of Moorhead. was used, and is an appropriate interpretation of state law.  It claimed the variance was a reasonable request because of the overall topography of the land. The Minnesota Supreme Court, however, declined to follow the lead of the Court of Appeals in Rowell.  It pointed out that the plain language states that the property must show that it cannot be put to “reasonable use” without the variance.  The Supreme Court looked to a decision in Stadsvold where they defined the difference between “undue hardship” which applies to Minnesota municipalities, and “practical difficulties” which applies to area variances in Minnesota counties. This distinction does not leave any room for the “reasonable manner” standard from Rowell. Instead the precedent from Curry v. Young is the correct to use, which establishes a more rigorous standard for “undue hardship.”  Thus the “reasonable manner” standard used by the City, although it has been used for over 20 years, cannot continue to be used.  The Court explained:

We recognize that the Rowell “reasonable manner” standard represents a longstanding interpretation of the undue hardship standard in Minn. Stat. § 462.357, subd. 6, and that Minnesota municipalities have been granting variances under the “reasonable manner” standard for many years. We also recognize that our decision will result in a restriction on a municipality’s authority to grant variances as compared with the “reasonable manner” standard. But whatever value we may find in a more flexible standard, particularly with regard to area variances, we cannot ignore the plain language of the statute. See State v. Peck, 773 N.W.2d 768, 773 (Minn. 2009) (“We have no opportunity to ignore part of the legislature’s definition.”). We are unable to interpret the statutory language to mean anything other than what the text clearly says—that to obtain a municipal variance, an applicant must establish that “the property in question cannot be put to a reasonable use if used under conditions allowed by the official controls.” Minn. Stat. § 462.357, subd. 6. Therefore, unless and until the legislature takes action to provide a more flexible variance standard for municipalities, we are constrained by the language of the statute to hold that a municipality does not have the authority to grant a variance unless the applicant can show that her property cannot be put to a reasonable use without the variance.

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