Posted by: Patricia Salkin | September 11, 2010

MN Supreme Court Adopts Stricter Meaning of Phrase “Undue Hardship” for Variance Requests

The Supreme Court of Minnesota adopted a stricter meaning of the term “undue handship” with respect to variance applications, departing from the theretofore prevailing standard.  The appellant sought judicial review of his neighbor’s successful application for a variance to a nonconforming detached garage.  Both the District Court and the Court of Appeals had affirmed the grant of the application to replace a “leaky flat roof” with a pitched roof.  Minn. Stat. § 462.357 states that to satisfy the definition of “undue hardship” the variance applicant must establish the “the property in question cannot be put to a reasonable use” without the variance.  The court of appeals relied on Rowell v. Board of Adjustment of Moorhead, 446 N.W.2d 917 (Minn.App. 1989), in which an applicant can satisfy the “undue hardship” standard by showing that the “property owner would like to use the property in a reasonable manner that us prohibited by that ordinance.”  But the Supreme Court couldn’t reconcile this interpretation with the “plain language” of the statute.  The court relied instead on its decision in Curry v. Young, 285 Minn. 387 (1969), holding variance applicants to a stricter standard for establishing “undue hardship.”  Under the Supreme Court’s construction, applicants must establish that the property would be essentially unusable without the variance.  The court remanded the case for review under the appropriate standard.

Krummenacher v City of Minnetonka, 2010 WL 2517702 (Minn. 6/24/2010)

The opinion can be accessed here

Read the case summary by the Minnesota League of Cities here: http://www.lmc.org/page/1/varianceruling.jsp

Special thanks to Deborah Rosenthal, Esq. of Sheppard Mullin for providing this case summary at the 2010 ALI-ABA Land Use Institute.


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