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Minutes - 02/02/2010 - Zoning Board of Appeals2. 9 MINUTES OF THE FEBRUARY 2, 2010 REGULAR MEETING OF THE ZONING BOARD OF APPEALS OF THE VILLAGE OF OAK BROOK APPROVED AS WRITTEN ON APRIL 6, 2010 CALL TO ORDER: CALLTOORDER The Meeting of the Zoning Board of Appeals was called to order by Chairman Champ Davis in the Samuel E. Dean Board Room of the Butler Government Center at 7:35 p.m. ROLL CALL: ROLL CALL Gail Polanek called the roll with the following persons PRESENT: Chairman Champ Davis, Members Jeffrey Bulin, Natalie Cappetta, Baker Nimry, Joseph Rush and Steven Young ABSENT: Member Wayne Ziemer IN ATTENDANCE: Mark Moy, Trustee, Mark Sterk, Village Attorney, Robert Kallien, Jr., Director of Community Development and Michael Hullihan, Village Engineer/ Director of Public Works Chairman Davis announced that the agenda items would be taken out of order. APPROVAL OF MINUTES: MINUTES There were no minutes presented to be approved. UNFINISHED BUSINESS BUNFINISHED S WESS A. ZUBI — 3719 MADISON STREET — .APPEAL DECISION OF THE MADISON 673719 CODE ENFORCEMENT OFFICER — FENCE HEIGHT — NATURAL APPEAL - FENCE GRADE NATUR- ATURALGRADE Chairman Davis called this agenda item last, which was delayed due to technical issues with the conference call equipment. Prior to this hearing; the applicant's attorney, Mark Daniel had requested that there be a full complement of the Zoning Board of Appeals present for the hearing, and the board granted the request. The technical difficulties could not be correbted and the attorney was asked if he would like to proceed or to continue the hearing, knowing that there was not a guarantee that all seven members could be present at the next meeting. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 1 of 9 February 2, 2010 Mr. Daniel thanked the board for its patience and attention to detail, but requested the public hearing be continued to the next regular meeting date, but asked to review the exhibits and letters that had been sent to the board since the regular January meeting. Mr. Daniel reviewed exhibits to be included or excluded as follows: They did not refer to Exhibits EE, X and Y and asked all but those be admitted. Chairman Davis reviewed the letters to see which should be included as part of the case file. The letters received from resident Thomas Volini dated January 6, 2010 (to be labeled Exhibit II) and from resident James Doehring dated January 11, 2010 (to be labeled Exhibit HH) were accepted by Mr. Daniel and made part of the case file. He objected to the letter from Sharilee Smentek dated January 28, 2010 because much of the content is regarding the enforcement of private covenants and contracts. There is a substantial dispute involving some conclusions in the letter and he did not believe that it would be appropriate for an attorney to submit a letter when there was an opportunity for an appearance at the hearing on this appeal on three different occasions. Mr. Kallien did not oppose to the inclusion of the exhibits. Mr. Daniel noted that he would limit his closing argument to five minutes at the next hearing. Chairman Davis noted for the record, that due to the absence of Member Bulin at the January 16, 2010 special meeting, a copy of the CD was given to him. Member Bulin confirmed that he watched the CD of the January 16, 2010 Zoning Board of Appeals meeting in its entirety. Tim Racke, 3708 Madison Street was sworn in by Chairman Davis. He said that he lives north and west of the Zubi property and is particularly bothered by a couple of aspects of what he has heard going on and seen being constructed at the Zubi property. He would call the sequence of construction, particularly of the fence located on the northwest corner (at Madison), that he referred to as the levitating fence. The pillars were built first and the horizontal members were built so that the fence was basically suspended in mid -air. The berm was then built underneath it and not matching the normal grade as he would call it. The other thing that was bothersome was the rhetoric about preserving the character of the Village of Oak Brook and there is nothing about the Zubi fence or coach house that matches the character of Madison Street and anything else in Fullersburg Woods. He did not understand the zoning ordinances or processes, VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 22oof�9 February 2, 2010 . zz or the lack of alignment with the goal of the character of this village. He urged the board to not approve the construction as it exists with the Zubi fence. No one else in the audience testified regarding this matter at the hearing. Chairman Davis asked Mr. Kallien what he was seeking out of the process should the appeal be denied. Village Attorney Sterk responded that Mr. Kallien was not seeking anything from this appeal process. If the appeal were denied then it would go back to the Community Development Department and the Village Board on whether they would direct Mr. Zubi to take the fence down. If the fence did not come down, then they would have to resort to whatever remedies are available to the Village. They could fine him on a daily basis or seek a court order requiring the removal of the fence. Director of Community Development Kallien added that in his original letter to the Zoning Board of Appeals, he summarized the issue and indicated that there were things that the applicant could seek to clarify the issue relative to either a text amendment or as Member Nimry brought up the suggestion of a variation request. Mr. Daniel said that in the closing argument they talk about the lapse of time between 2007 and 2009. With this appeal they have tried to avoid the burden of seeking a text amendment or variation or the alternative of going to the Village Board to admit the grade issue and ask them to set another grade, which they are not going to do, because they cannot. The three remedies are very costly and carry substantial risk to vested rights and the chances are that there would be an appeal from the decision before any of the rights occurs. Motion by Member Rush, seconded by Member Young to close the public hearing portion of the appeal and continue the public hearing on the appeal for closing arguments and deliberation to the next regular Zoning Board of Appeals meeting on March 2, 2010. VOICE VOTE: Motion carried. 5. NEW BUSINESS /:4\N6,11F. m ENCROACHMENT INTO THE FRONT SIDE AND REAR YARD SETBACKS TO ALLOW THE CONSTRUCTION OF THE SOFFIT AND FASCIA VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 3 of.9 February 2, 2010 NEW BUSINESS AKHTAR - 10 KINGSTON DR. - VARIATIONS - TO ALLOW ROOF OVERHANGS IN REQUIRED YARD SETBACKS Chairman Davis swore in all that would testify at this hearing. Robert Kirk, architect for the property owner reviewed the request for approval of a variation that would allow the soffit and fascia to encroach into portions of the required front, side and rear yard setbacks. The front and rear setbacks are both 40 feet and the side yard is 12 feet. The lot has a unique shape and there is no neighbor on one side and there is approximately 40 feet separation to the neighbor facing the side yard He said that the permit was issued showing the edge of the building almost to the setback Imes. During construction, construction was halted and they were informed that a variation would need to be sought for three areas of the roof overhang. The front yard variation request is to allow a roof overhang projection of 6- inches, for a width of approximately 3 feet. The side yard variation request is to allow a roof overhang projection of approximately one- foot seven - inches (17), for a width of approximately 17 feet. The rear yard variation request is to allow a roof overhang projection of approximately one- foot one -inch (11"), for a width of approximately 60 feet into the 40 -foot setback. Mr. Kirk summarized the variation standards as follows: 1. a. The property in question cannot yield a reasonable return if permitted to be used only under the conditions allowed by the regulations governing the district in which it is located. RESPONSE: If the roof overhang would be cut back to the required non- infringement, the architectural integrity of the design would be severely affected. It was cut back for a while, but the whole integrity of the architecture was affected and they are seeking to allow all of the overhangs to be consistent. 1. b. The plight of the owner is due to unique circumstances. RESPONSE: The unique circumstance was that the building permit was issued allowing for the roof overhang infringements. The owner proceeded in good faith to build the residence. 1. c. The variation, if granted, will not alter the essential character of the locality. RESPONSE: The locality will not be altered by granting the requests and would not affect the character of the neighborhood. 2. a. The particular physical surroundings, shape, or topographical VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 4 of 9 February 2, 2010 conditions of the specific property involved would bring a particular hardship upon the owner as distinguished from a mere inconvenience if the strict letter of the regulation were to be carried out. RESPONSE: It is a unique site being a curved comer lot and caused the unique shape and location of the building footprint. 2, b. The condition upon which the petition for variation is based would not be applicable generally to the other property within the same zoning classification. RESPONSE: A building permit to allow the infringements was issued. Other properties would generally not be applicable in the same zoning classification. 2. c. The granting of the variation will not be detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located. They think it is a minor change and if anything adds to it. RESPONSE: It would not be injurious or a detriment to the public or adjacent property owners. 2. d.The proposed variation will not impair an adequate supply of light and air to adjacent property, or substantially increase the danger of fire, or otherwise endanger the public safety or substantially diminish or impair property values within the neighborhood. RESPONSE: Granting the variation would not affect property values in the neighborhood. 2. e. That the purpose of the variation is not based exclusively upon a desire to make more money out of the property. RESPONSE: There is no financial consideration associated with the requested variances. 2. f. That the alleged difficulty or hardship has not been created by any person presently having an interest in the property. RESPONSE: A building permit to allow the requested overhang variances was issued by the Village of Oak Brook. The alleged difficulty or hardship was not created by any person associated with the property. Chairman Davis asked if the surrounding neighbors were notified. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 5 of 9 February 2, 2010 Mr. Kirk responded that they were. Michael Cho, 13 Kingston Drive questioned the permit process and asked what kind of environmental impact could there be on the neighbors, if approved. Mr. Kirk responded that the granting of the variation would not cause a negative impact on the locality or be injurious to the neighborhood, because it is a very minor request. The distance to the neighbor to the rear is about 100 feet; the neighbor to the side is approximately 34 feet; and the area to the front and the side with the garage there are not any neighbors. They feel there is very little impact to the neighborhood. There is no impact to light and air because that would refer to the structure being built higher, which they are not. Chairman Davis responded that in order for the Zoning Board of Appeals to recommend the variation, they must see that the standards have been satisfied. Chairman Davis asked whether some other communities measure setbacks from the foundation wall rather than the roof overhang. Director of Community Development Kallien responded that there are communities that measure to the foundation wall. He added that there appears to be somewhat of a contradiction in the Code, because a house can have awnings, which can encroach into all of the yards by three -feet. However, eaves on a house are not allowed. William Lindeman, 11 Pembroke Lane, resident said that his property was not directly affected by the relief being sought, but questioned whether any objections were received from properties located closer to the subject property and said that he would support the opinion of those more directly affected than himself. Planning and Zoning Administrative Tech, Gail Polanek, responded that all required surrounding properties had been sent a public hearing notice and no objections had been received. Director of Community Development Kallien also noted that a letter of support had been received from the Brook Forest Homeowner's Association. Mr. Lindeman said that he had a curiosity as to how this was allowed to happen and suggested better controls be set at the Village level to keep this type of error from happening again. He said that the applicant benefitted from the mistake VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 6 of 9 February 2, 2010 FeM by allowing a larger home to be built. He suggested the addition of foundation landscape to reduce the appearance of the additional bulk of the house. Consideration should also be given during the review of the zoning code regarding the eaves, because a Frank Lloyd type house would have a much larger eave. Member Nimry responded that the Village did not spring anything on the applicant, because the case file contains a copy of the approved plan with the notation that all eaves had to meet the setback requirements, so they were aware of the requirement in 2008 and it was nothing new to the architect or the property owner. The Village staff did their job 100 percent. Mr. Lindeman said that he made his comments based upon the presentation made by the applicant. Mr. Kirk reviewed each picture and identified the specific areas where the variation was being requested. He added that he did not receive the permits that were picked up by the general contractor; and he did not know that the overhang was going to be an issue. The areas in question are very small areas that would have a minimal impact. Member Rush noted that there was a letter in the file from Mr. Bill Hudson (Community Development Dept.) to Mr. Kirk, the architect, prior to construction, stating that the setbacks could not be met and that if construction were continued it would be at the applicant's risk. Mr. Kirk noted that the letter was received after they were under roof. Member Bulin disagreed and noted that notification was made at the time of the backfill/foundation inspection on April 24, 2009, noting that the "setbacks were not approved with the current configuration. Okay to backfill at owners risk — anticipating failure and architectural corrections. No construction above foundation." The contractor was obviously aware of the situation at that point. Mr. Kirk noted that he never received the inspection report. Director of Community Development Kallien said that with all new construction, after the foundation is poured a spot survey is required to show the actual setbacks, and a copy of the spot survey has been included in the case file. He added that although the permit was approved in October of 2008, the permit was not picked up until February 24, 2009. So between February 24, VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 7 of 9 February 2, 2010 M 2009 and April 24, 2009, is the 60 day window from when construction commenced. The Village was in continuous contact with the applicant to prod him along, because the permit had expired and additional fees to the Village were invoked. Member Bulin asked if Mr. Kirk had been notified. Mr. Kirk responded that he was not involved in picking up the permits. The first time he found out about it was when he received a phone call. Dr. Akhtar, owner of the subject property, said that he believed it was an oversight on their part as well as that of the Village, because when the permit was issued in 2008, there were no remarks regarding the eaves. They did not discover a problem until the concrete had been poured, and after $80,000 worth of concrete is poured, it is very difficult to change. It does not impact any of the neighbors. The overhang in the front section is for only six - inches and only for a length of three feet; and then there are and additional 40 feet to the end of the property, plus a forty -foot wide road and an additional 40 feet to the neighbor, which will not impact the neighbor at all. The side is for a one -foot one -inch overhang and was an oversight. The construction was stopped and they said that they would apply for a variance. hi the rear, the overhang on the one -story portion of the house would encroach approximately fourteen- inches into the setback. The foundation of the entire structure is completely within the required setbacks. He asked the Zoning Board of Appeals to please approve the request, because if they are required to cut back on the overhangs the whole architectural integrity of the building would be gone. They attempted to eliminate those areas of the overhangs and it looked like someone forgot to build it. A letter of approval from the homeowner's association, for approval of the requested encroachments has been included in the case file. He apologized for overlooking this, and they have nothing against the Village, but would appreciate approval so that they can continue with the permit. (Note: the property owner confused some of the numbers during his testimony, but the formal request and presentation were for the accurate relief being sought.) Member Young questioned whether sanctions could be imposed against the roofing contractor or architecture firm. Village Attorney Sterk responded that a citation could probably be. written for an ordinance violation, but the maximum fine could be approximately $750.00; but that would probably be the first time, but realistically, $200 would probably be the most. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 8 of 9 February 2, 2010 ME Gej 7. Director of Community Development Kallien commented that in his eleven years at the Village, there have been approximately 200 house permits issued, and this is the fast time that this has happened. Staff was diligent and identified the issue up front and unfortunately the construction progressed. Chairman Davis noted that a movement was made by the applicant to admit that a mistake had been made and it was an unfortunate situation. It is one that can be remedied. If it is recommended, he would also recommend that the Village Board undertake a review of the ordinance in view of the inconsistency between the overhangs and other accessories that are permitted to infringe. This is a slight infringement, no immediate neighbors complained and the homeowner's association has approved the request. It appears that the standards were satisfied and it is an unfortunate situation. The request did not appear to present any infringement upon any of the neighbors or on the neighborhood. Motion by Member Nimry, seconded by Chairman Davis to recommend approval of the variations as requested. ROLL CALL VOTE: Ayes: 4 — Members Bulin, Cappetta, Nimry and Chairman Davis Nays: 2 — Members Rush and Young. Absent: 1 — Member Ziemer. Motion Carried. OTHER BUSINESS There was no other business to discuss. ADJOURNMENT: Motion by Member Bulin, seconded by Member Nimry to adjourn the meeting at 8:30 p.m. VOICE VOTE: Motion carried ATTEST: Robert Kallien, i +ector o ommunity Development Secretary VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 9 of 9 February 2, 2010 V44- OTHER BUSINESS ADJOURNMENT