by Sarah Squires
Rules within Winona County’s new draft zoning ordinance are more strict than ever, and plenty of existing homes and structures are currently breaking them. And while many property owners are familiar with “grandfather” clauses that let those rule-breaking uses continue, the new ordinance poses several situations in which property owners can’t expand or could be forced to get compliant.
The rules come from Minnesota Statutes which address nonconforming structures, homes and uses: those which were legal when they were built, but new regulations since make them “nonconforming.”
The new zoning ordinance will make many structures and uses throughout the county nonconforming. For instance, current structures along ridgetops and on steep slopes may soon be considered nonconforming, and setbacks from trout streams have been proposed to quadruple to at least 200 feet.
When the Winona County Planning Commission reviewed the new ordinance, it asked that nonconforming homes for the most part be easily rebuilt if destroyed by fire or other natural disaster. But after legal review of the proposal, county staff have found that such rebuilding will require that a property owner get a permit within 180 days or become compliant. A nonresidential structure damaged more than 50 percent by fire or other act of God will not be allowed to be rebuilt unless it conforms to the new rules.
For a home situated close to a bluff’s edge, for instance, becoming compliant could mean finding level ground or moving the structure hundreds of feet back from the edge. In some situations, there may be no way for a structure to become compliant within the new ordinance.
And, for structures and uses deemed a “threat to general welfare,” property owners could be forced to raze a structure, discontinue a use, or also become compliant with the new rules. The draft language suggests that the County Planning Director determine if a property is considered such a threat with documented evidence, and upon his direction, an owner will have two years to either conform to the new rules, or terminate the structure or activity.
The county sought a second legal opinion on this part of the ordinance from the law firm Springer & Gumbel. And although that firm agreed that the nonconforming provisions were in line with state statute requirements, it did pose some objections to the rules for properties considered a threat to general welfare.
“... I would caution the County Board that setting a time limit of two years for the amortization of terminating nonconformities may be deemed by a finder of fact as arbitrary or capricious,” wrote Scott Springer of Springer and Gumbel. He continued, adding that while amortization is allowed, “grandfathered use of property is a property right protected by the United States and Minnesota Constitutions.” And, wrote Springer, such amortization of nonconforming property without “just compensation” is a case-by-case determination, and should weigh the detriment to the property owner against the benefit to the public.
Under the draft ordinance language, a nonconforming structure or use destroyed by fire or other disaster would be allowed to be rebuilt without conforming to the new rules, but only if the property owner applies for and receives a zoning certificate to do so within 180 days. Certain flood plain properties would have to adhere to state law on whether they could be rebuilt in the same location.
That old farmhouse that has been sitting empty for years? Under the new ordinance, if it is not compliant to the rules and remains abandoned for over a year, it will have to be razed or changed to meet the new rules of the ordinance.
Additionally, any nonconforming structure won’t be allowed to expand, unless the expansion does not increase the nonconformity.
During the County Board’s review of the nonconformity section of the ordinance, board member Jim Pomeroy said that in most instances, a nonconforming structure or use won’t be eliminated. He said that most of the ordinance rules were more ideological than practical, and that the county would likely continue to have nonconforming structures and uses for 100 years or more.
County Planning Director Brian Bender said that some of the rules, such as prohibiting expansions that further break the rules, will help stop people from buying an old cabin next to the Mississippi and erecting a large riverside home against the new rules. That, he said, is where the development pressure is in the county. It becomes a question, he said, “Do you want to cut them off at the knees, or allow provisions for that use to continue?”
The board agreed the changes are in line with state statute and will continue its review of the new zoning ordinance next month.