Property developers must have their tongues hanging out all over Duluth as they enviously see how readily the City gives in to the School District for Red Plan variance requests.
Here’s an email sent by City Councilor Jim Stauber to the City Attorney on that subject.
Mr. Johnson, we (the Duluth City Council) have granted numerous variances based upon our own beliefs of the definition of “hardship.” Many of the most significant recent variances have been granted (with more to come) to ISD 709. The most prominent ones in my mind are those for the new Eastern High School.
The memo we received from your office on “Variance Policy Update” and in specific regarding “hardships” referencing the MN Supreme Court decision on
Krummenacher v Minneapolis seems to make it clear that our interpretation and subsequent decisions in many cases may not have been according to state law. Specifically, “The property in question cannot be put to reasonable use if used under conditions allowed by the official controls.” This memo to the BZA regarding Resolution 440 seems to make it clear we need to stop granting these under our current practice.Since the Municipal Planning Act has been around for decades and this language has remained the same, our granting of these variances in the past could be challenged in court, assuming there are limitations on how far back someone could go. My guess, however, is that all of these variances to ISD 709 could be subject to challenge as they are fairly recent and according to the MN Supreme Court, “too bad so sad,” but unless and until the state legislature takes action, that’s what the law says.
While I believe municipalities should have a little more latitude on granting variances, today, that’s not what the law says. I also believe that challenges would have a very high chance of success based on the ruling of 24 June 2010.
Gunnar, I’m looking for feedback on my logic here.
Thanks, Jim.
