A discussion with Dan Petrik (shown at right), land use specialist with the Department of Natural Resources
Making decisions on variances is an important but challenging responsibility for local governments, especially when such requests affect the state’s shorelands and other protected waterways. Cities must make sure to follow state law when issuing variances for shoreland properties. Minnesota Cities talked with Dan Petrik, land use specialist with the Department of Natural Resources (DNR), to shed some light on this topic.
Minnesota Cities: What exactly is your role at the DNR?
Dan Petrik: My role is to coordinate the implementation of our statewide shoreland programs, which means that I work with the DNR’s area hydrologists throughout the state to administer the programs through cities and counties. I’m also involved with the agency’s rulemaking and training.
MC: Could you explain what shoreland is and why the DNR has a shoreland management program?
DP: Shoreland is defined as any land within 1,000 feet of a public water body, and land within 300 feet or the furthest extent of a floodplain for rivers and streams. The DNR program guides land development within these boundaries, including its location with respect to sensitive resources, development density, and measures for protecting and restoring habitat and water resources.
MC: What do the shoreland rules address?
DP: The rules primarily deal with the setback of structures from the ordinary high water level. They also deal with lot sizes, lot widths, vegetation management procedures, and the amount of impervious surface allowed on a lot. There are other regulations, but those are the most important for protecting water bodies.
The above photo shows an example of shoreland development that meets setback and vegetation regulations.
MC: Can you talk about what the DNR expects cities to do in terms of administering these rules?
DP: The expectation is that, when a property owner wants to build on or redevelop a shoreland area property, the city ensures compliance with the rules in its own ordinance. So, for example, if somebody wants to build a new house, the city makes sure it is set back 150 feet from the water or whatever the requirement is for that particular water body.
MC: What is a shoreland variance?
DP: Technically, a shoreland variance isn’t any different than any other variance from a city’s zoning code. However, shoreland variances are different from a policy perspective because we are dealing with public waters, so we feel the city should give shoreland variances a higher level of scrutiny and really consider the public value of these resources.
MC: Can you give an example of how a variance might relate to different kinds of rules?
DP: A property owner may want to exceed the impervious surface requirement to add on a new garage. In a non-shoreland area, that may violate a city’s zoning ordinance, but it wouldn’t have the same level of importance that it would in a shoreland area. These areas are more susceptible to runoff, and the more impervious surface you have, the greater amount of runoff and pollution that can go into the adjacent water body.
MC: What should city officials think about when deciding whether to grant a variance?
DP: There are five criteria outlined in state statute. Three of those deal with practical difficulties, which is probably what most people think about. The other two criteria that must be considered are: (1) that a variance be consistent with the city’s comprehensive plan, and (2) that it should also be in harmony with the purposes and intent of the city ordinance.
MC: You mentioned “practical difficulties,” and sometimes people talk about “hardship.” Can you discuss those terms?
DP: The three other criteria are the standards needed to prove practical difficulties. State rules say you must show that practical difficulties exist in order to grant a variance. “Practical difficulties” is the new term for “hardship.” It was included in the 2011 update to state statute. So if a city’s ordinance still talks about hardship, it should be updated.
MC: What are these three criteria to prove practical difficulties?
DP: The first one is that you need to show there are unique circumstances to the property that were not created by the landowner. The second one is that the variance would not alter the essential character of the locality. And the third one is that the owner proposes to use the property in a reasonable manner not permitted by the ordinance.
MC: What are some of the challenges of assessing these criteria?
DP: With the unique circumstances requirement, it’s important to keep in mind that we’re talking about a shoreland area that’s adjacent to a public resource. For example, people talk about physical characteristics of a piece of land, such as steep slopes or a wetland, as being unique circumstances. These might be unique in some areas, but in shoreland areas, these are not unique—they are typical characteristics of the landscape.
The above photo shows an example of a deck that encroaches intp the bluff, increasing the risk of soil erosion and water pollution.
MC: The essential character of the locality factor—are there many challenges in meeting that standard?
DP: This also can be difficult. People might think essential character means, how does this building plan fit into the neighborhood? Does it look like the neighbors, or is it earth tone to fit into the natural landscape? It could be those things, but character is more about shoreland characteristics. One example is hydrology. Hydrology within the landscape of a lake or river is very different than a non-riparian area. And when you build structures or remove vegetation, you’re affecting the hydrology on and below the soil in terms of how and where the water flows. If you have steep slopes or bluffs, you can have additional problems with slumping or eroding soils. So it’s important to think about these real physical issues. If the project is affecting the hydrology, that may be a more important local character issue than how the structure aesthetics fit into the landscape.
MC: Sometimes when a city issues a variance, it will put conditions on the variance. Does that make sense in a shoreland context?
DP: Yes, we think it often makes sense. And, in fact, Minnesota Statutes 462.357 discusses conditions for shoreland areas. The statute says that communities shall require property owners to address stormwater management by reducing impervious surface, increasing setbacks, and restoring wetlands and vegetative buffers as conditions to offset the deviation from the rule. The idea here is to try to mitigate some of the protections lost through the variance by adding a shoreland buffer or putting in some type of stormwater filtration system or something else. Any conditions need to be related to the deviation in the rule, and have to be proportional to the amount of the deviation that somebody’s requesting.
MC: Why is it important to protect shoreland areas?
DP: Within a watershed, there are a lot of opportunities for pollution to get into our water bodies. But the reason we protect the shoreland area is that, in many ways, it’s the last opportunity to protect the quality of the water body before stormwater runoff goes into it, and that’s why vegetation along that riparian edge is important. Especially in residential areas, vegetation is a far more practical and effective means of lasting stormwater protection or treatment than engineered solutions. It looks better, and it’s easier to manage for the long term. But it can be easily removed by landowners, so cities need to think about how they administer conditions of approval. Ideally there would be some way of monitoring these conditions, and assuring that they remain in place.
MC: Is there anything else local officials should keep in mind when considering variance requests in shoreland areas?
DP: I think one of the most challenging things is the difficulty of saying no to your neighbors, or placing conditions on them. But rigorously assessing each variance application on the five statutory criteria will help overcome this difficulty. It’s important for city officials to see their role as a judge, not as a neighbor. That’s your role as a member of a planning commission or board of adjustments in considering variances—you’re a judge applying the rule of law in a fair and equitable manner, and you’re considering facts in making a decision. If you put that hat on, perhaps it will make your job a little easier. MC
Need more information? Check out the DNR’s shoreland variance resources.
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Got questions about shoreland variance regulations?
Contact Jed Burkett
Loss Control/Land Use Attorney
(651) 281- or (800) 925-1122
Contact Dan Petrik
Land Use Specialist
Minnesota Department of Natural Resources
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