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Minutes - 02/04/2003 - Zoning Board of AppealsVILLAGE OF OAK BROOK ZONING BOARD OF APPEALS MINUTES February 4, 2003 1. CALL TO ORDER The regular meeting was called to order at 7:34 p.m. MEMBERS PRESENT: MEMBERS ABSENT: ALSO PRESENT: A quorum was present. H. APPROVAL OF MINUTES Chairman Champ Davis Members Richard Ascher George Mueller Robert Sanford Manu Shah Ayesha Zaheer Member Steven Young Village Trustee Alfred Savino Plan Commission Chairwoman Barbara Payovich Plan Commission Members David Braune Jeffrey Bulin Marcia Tropinski Gerald Wolin Director of Community Development Robert Kallien Village Attorney Richard Martens Member Mueller moved, seconded by Member Sanford to waive the reading of the November 5, 2002 Regular Zoning Board of Appeals meeting minutes and to approve them as amended. VOICE VOTE: All in favor. Motion carried. Ill. ZONING WORKSHOP - REVIEW OF RULES OF PROCEDURE WITH THE PLAN COMMISSION This was a joint meeting with the Plan Commission, Village Attorney, Director of Community Development and Trustee Savino. Richard Martens, Village Attorney conducted a review of zoning and its effects on the village districts as well as a review of code requirements. Some of the areas reviewed were as follows: Zoning is about uses and structures that are permitted in certain districts. There are use and bulk regulations and the code requires minimum setbacks and allows only a certain percentage of a lot be improved with durable hard surfaces. There are height and intensity of use regulations, controlling how high and how many units may be allowed on a certain lot. ZONING BOARD OF APPEALS Minutes 1 ZBA- MTG.2003 -FEB February 4, 2003 People who own property believe they should be entitled to put on certain structures and use their property in a certain way. They often come before the village and request zoning relief, which can take any number of forms. Different forms of zoning relief will effect different hearing bodies. Some situations are heard by both the Plan Commission and the Zoning Board of Appeals, others are heard by one or the other. Appeals are only heard by the Zoning Board. Few are heard and it is the only situation in Oak Brook where the Zoning Board makes the final decision. Variations are heard by the Zoning Board. A variation is a granting of relief from the strict provisions of the ordinance where such a strict interpretation would create a hardship on the property owner. It revolves heavily upon hardship. Hardship is defined by the standards set forth in the Ordinance. There are three main requirements to demonstrate hardship, as follows: 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. b. The plight of the owner is due to unique circumstances. c. The variation, if granted, will not alter the essential character of the locality. If there is an irregular shaped piece of property that restricts development, a variation may be granted to give some relief so that the owner can make some economic use of the property. A variation is not about a personal situation of the owner, it is about issues with the property or its previous development. If the owner simply wants to enlarge a structure to get a better return on their money, that is not an appropriate hardship. The ordinance also has additional standards that are also taken into consideration as follows: For the purpose of supplementing the above standards, the Zoning Board of Appeals, in making the determination whether there are practical difficulties or particular hardships, shall also take into consideration the extent to which the following facts, favorable to the applicant, have been established by the evidence that: a. The particular physical surroundings, shape, or topographical 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. 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. 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. 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. e. That the purpose of the variation is not based exclusively upon a desire to make more money out of the property. f. That the alleged difficulty or hardship has not been created by any person presently having an interest in the property. The Zoning Board of Appeals may recommend and the Board of Trustees may require such conditions and restrictions upon the premises benefited by a variation as may be necessary to comply with the standards set forth in this Section to reduce or minimize the injurious effect of such variation upon other property in the neighborhood, and to implement the general purpose and intent of this Title. The Zoning Board makes a recommendation to the Village Board to grant or deny the request. The Zoning Board can condition or recommend certain restrictions. For example, they may suggest conditions that further the goals and objectives of the standards so that there is not an adverse effect upon adjacent property. The requirement can be made pursuant to plans and specifications. Typically, the Village Board will look to the findings of fact of the hearing body. The findings of fact are very important in the event, the ZONING BOARD OF APPEALS Minutes ZBA- MTG.2003 -FEB 2 *-loft February 4, 2003 Village would end up in litigation. The Zoning Board is the statutory hearing body and it must be demonstrated to the court that there is evidence to support the findings that are later adopted by the Village Board and that the grant meets the standards. This is called an administrative review where the court goes through the village record of the case and reads it to determine whether the evidence supports the standards. In the event, it is denied, then it takes an extraordinary majority on the Village Board (2/3) to grant the relief. Special Uses are only allowed if it meets certain standards. A special use is listed in the particular zoning district. There are permitted uses, which allows the developed providing the bulk requirements, etc. There are the special uses, which are uses that the Village wants to review case by case to determine that the standards are met. The standards are also set forth in the ordinance as follows: No special use shall be authorized by the Village Board unless the special use: 1. Is of the type described in subsection Al of this Section, is deemed necessary for the public convenience at that location; 2. Is so designed, located and proposed to be operated that the public health, safety and welfare will be protected; and 3. Would not cause substantial injury to the value of other property in the neighborhood in which it is located. The ordinance looks out for the community at large and for the neighbors in particular so they want to know what effect there will be if granted. A recent case called Klaeren vs. Village of Lisle has changed zoning in Illinois. In this case, the Meijer Corporation wanted to construct one of its superstores in Lisle. A substantial segment of the community was opposed to the project. On the day of the hearing, there were hundreds of people in the high school auditorium. The public hearing for this case was on a Saturday morning and the Village Board, Plan Commission and Zoning Board heard the matter all at the same time. The thought was to save some time so that it was not replicated down the road. Limits were set on the amount of time the public could speak. The president of the Village was running the meeting and he instructed the public to direct the questions to the dais and the board would decide how it would be handled. The court ruled that it was a quasi - judicial proceeding with the full right of cross - examination. The ruling has somewhat changed the hearing process because, unlike lawyers, most citizens are unaccustomed to the procedure. As a result of this case, another change was brought was that a special use permit granted by an ordinance was a legislative decision, which was reviewable in the courts. If a municipality said no to the proposed special use, then the petitioner would start all over again in court. They would have to go through the entire request process in front of a judge in order to get a declaratory judgment from the court that the proposed request was constitutional as applied to the standards. The court determined that the court was just an administrative review. Because of this determination, it is very important to have a very good record before the hearing body. If the Village ends up in litigation, what was said under oath before the Zoning Board and whether there was substantial evidence presented for the ultimate decision made by the Village Board. Amendments can be either a text amendment or a map amendment. Both are heard by the Plan Commission and Zoning Board of Appeals. The Plan Commission provides a report to the Zoning Board and Village Board. The Zoning Board holds the statutory public hearing. Both groups submit their recommendations to the Village Board, which approves or denies the request. There was a parcel of property approximately 3.8 acres on Midwest Road just south of 31St (next to the Frank Thomas house). Through extensive marketing, the property owner determined that he could not sell the property at that size and the property was not large enough to subdivide (2 -acre minimum requirement) in the R1 zoning district. He petitioned to rezone the parcel to R2 (1 -acre minimum). As part of the standards the applicant used the surrounding development of R3, the impact of facing Midwest Road, the land not having been sold or developed due to its inability to be subdivided (due to land taking in the widening of Midwest Road) and he was successful. ZONING BOARD OF APPEALS Minutes ZBA- MTG.2003 -FEB February 4, 2003 Most of the CR (conservation /recreation) district was rezoned from residential in 1986. A text amendment changes the words in the zoning ordinance. The parcel at 31st and Jorie (DuPage Mayors and Managers) sought changes in the special use text of the zoning ordinance. They wanted specific text added that would cover exactly what they do on the site. The Village Board agreed. During that process, they sought not only the text amendment to change the language of the text, but also the special use that would allow them to operate in accordance with the text as amended. Many conditions and restrictions were included in the Special Use. Text and Map amendments do not have standards, but there are factors that need to be addressed before the Plan Commission and Zoning Board of Appeals as follows: (a) The character of the neighborhood. (b) The extent to which property values are diminished by the particular zoning restrictions; (c) The extent to which the removal of the existing limitations would depreciate the value of other property in the area; (d) The suitability of the property for the zoned purposes. (e) The existing uses and zoning of nearby property. (f) The length of time under the existing zoning that the property has remained unimproved, considered in the context of land development; (g) The relative gain to the public as compared to the hardship imposed on the individual property owner; (h) The extent to which the proposal promotes the health, safety, morals or general welfare of the public; (i) The relationship of the proposed use to the Comprehensive Plan; and Q) The community need for the use proposed by the property owner. Flood Plain Special Use also has a list of factors that must be met. Copies of the factors are included with the case file when one has been requested. This request is heard by both the Plan Commission and Zoning Board of Appeals. The Plan Commission provides a report to the Zoning Board and Village Board. The Zoning Board holds the statutory public hearing. Both groups submit their recommendations to the Village Board, which approves or denies the request. Amendment to the Comprehensive Plan — This matter is heard only by the Plan Commission. To prepare and recommend to the corporate authorities a comprehensive plan for the present and future development or redevelopment of the municipalities is called the Official Comprehensive Plan. Our Comprehensive Plan needs to be updated, and Director of Community Development Kallien with the Village Board's blessing is going to begin that process this year. The present plan dates back to 1988 so the text of the document needs to be updated. The map may not need many changes. In the state of Illinois the courts have determined that the Zoning Ordinance controls over the Comprehensive Plan. The Comprehensive Plan is advisory only, not mandatory, as viewed by the court. The Comprehensive Plan is very important when someone is looking for rezoning of the village map. It is good planning tool for what the Village aspires to do ten years or so at a time. ZONING BOARD OF APPEALS Minutes 4 ZBA- MTG.2003 -FEB February 4, 2003 Subdivisions are only heard by the Plan Commission. In the event that someone requests a variation or amendment to the Subdivision Regulations and the standards are relatively open- ended. The Plan Commission and Village Board, in its opinion, such variations would not be contrary to the purpose or intent of the comprehensive plan and official map or the spirit of this Title. Director of Community Development Kallien said that we have seen a few variations. There will probably not be too many variations in the future. However, several have been the result of larger parcels being split into two. The type of variation to the subdivision regulation would be a waiver to the requirements of the sidewalks, streetlights, etc. If the area that the proposed subdivision is in does not have those items in place, and there are areas in Oak Brook where those items are not common, they would seek a variation to those requirements. The Plan Commission and Village Board have found that it is unreasonable to require those facilities in areas where they do not exist. CASE FILES - Director of Community Development Kallien said that by the time the Commission and Boards receive a case, quite a bit has been done already by staff. Sometimes several meetings have taken place with the applicant. After receipt of the application and prior to preparation of the case files the request must first be sent to the Village Board. If it is accepted, it is referred to the appropriate hearing bodies. Included in the case file will be the completed application form, legal description, plat of survey, legal notice published in the newspaper, letters sent to resident within 250 feet and all of the homeowners associations. The applicant provides a very detailed synopsis of what they would like to do. We are interested in how they propose their project to meet all of the required standards. The file will contain a written response to the standards. The appropriate hearing bodies will concur or not with the standards provided by the applicant. It places the burden on the applicant to prove that their case meets the ordinance. After the file has been heard by the Plan Commission, a recommendation report is prepared and forwarded to the Zoning Board of Appeals that summarizes the actions of the Plan Commission. The Zoning Board of Appeals holds the official public hearing. They review the findings of the Plan Commission and if anyone from the public is interested in the matter, they can ask questions or make comments to the Board. The Zoning Board of Appeals makes a recommendation and takes into consideration the findings from the Plan Commission. The report from the Zoning Board of Appeals is forwarded on to the Village Board. When the case gets to the Village Board, they will have a report from the Plan Commission and a report and findings from the Zoning Board of Appeals. The Village Board reviews the matter. They have the ability to take additional testimony. The Trustee liaison, Al Savino usually makes a presentation at the Village Board meeting, and the Board will vote accordingly. In Oak Brook, the Village Board is not interested in rehearing the case. They take all the materials in the case file and ultimately make the decision. Trustee Savino said that he usually would make a presentation to the Village Board. The members of the Board do have the right to ask the petitioner and witnesses' questions, as well as take comments from the public. Normally, they do not hear the entire presentation from the applicant. They cover areas of concern or items that need clarification. Normally, the petitioner is limited to 30-40 minutes of testimony; however, the Plan Commission and Zoning Board hold hearings that are not limited, and at times last for several meetings. Member Sanford asked, if the Zoning Board is the public hearing body, hears the deliberation and makes a recommendation to the Village Board; the Village Board does not have a hearing, but disagrees with the Zoning Board recommendation. If all the evidence was taken by the Zoning Board and if there is eventual litigation, isn't the recommendation of the Zoning Board really used by the court to go against the Village? ZONING BOARD OF APPEALS Minutes February 4, 2003 5 ZBA- MTG.2003 -FEB Village Attorney Martens responded that would certainly be a problem in that situation. If the Village Board would go contrary to the Zoning Board recommendation, they would need a basis to do that, which would require testimony and evidence. The court is now reviewing the record back before the administrative bodies. In order to be protected they need some record of why it voted contrary to what the hearing body found and recommended. Member Sanford asked that most subdivisions have homeowners associations, which has rules and standards for their particular subdivision. If the homeowners association is bypassed and a resident goes directly to the Zoning Board, it almost makes the homeowners association impotent. Village Attorney Martens responded that the homeowner's subdivisions always has their private right to enforce its rules and regulations in court. When the parcel was purchased, the buyer knew from the examination of the title that they were subject to the association requirements. This is totally separate from the Zoning Ordinance. Director of Community Development Kallien said that whenever there is an action involving the homeowner's association, they are notified by mail so they can participate in the process and provide their input. Another issue is a building permit. If someone applies for a permit to build an addition and it meets all the building codes and complies with the ordinance, there is really no way that the Village can stop the permit from being issued. We are aware that several of the subdivisions have private covenants that are far more restrictive than the ordinance. We try to make the homeowners association aware of the request. If we hear nothing and it meets the regulations, we have to release the permit. When we realize there is a conflict, we try to make sure the applicant and homeowners associations are working together ahead of time. Member Shah said that it was his understanding that permits are not issued without approval from the homeowners association. Director of Community Development Kallien said that we try to communicate, but if a letter has not been received, we cannot refuse to release the permit. Member Shah said that if the applicant does not meet the association's approval, a letter cannot be issued. Village Attorney Martens said that the homeowners association has a private covenant that is enforceable in civil court. The covenant in the homeowners association is not the law of the Village Oak Brook. The Village covers the town and not the individual subdivision, which may be more restrictive that what the Ordinance would allow. The homeowners associations can be advised, but we cannot hold the citizen hostage because the association does not agree, even though it complies with the village codes. We are limited as to how far we can go, although we try to work together. Director of Community Development Kallien said that it puts the Village in an awkward position, knowing that the permit has to be released, even though we know there may be issues down the road. Nonconforming Use and Structures are uses and structures that predate the Zoning Ordinance. The York tavern is an example of a nonconforming use that existed prior to the zoning of the Village. The problem with amortizing uses is that the court would allow towns to make a use extinct, and force the business or operation to cease. However, a town would have to compensate the owner for being deprived the economic use of the property. It is like condemnation that is so regulatory and severe that it would be like taking away the owners business. Legally it is called a regulatory taking and ultimately the Village Board did away with amortization for that reason. There are certain restrictions to a nonconforming use and structure. It cannot be made bigger and the footprint of the building cannot be increased. Rules of Procedure are guidelines and information. There is one for the Plan Commission and one for the Zoning Board of Appeals. The Rules describe the process and procedures each hearing body. They should be used for reference. ZONING BOARD OF APPEALS Minutes ZBA- MTG.2003 -FEB t February 4, 2003 Trustee Savino asked when the Plan Commission and Zoning Board make the motions to recite the applicable standards in the motion. Village Attorney Martens added that courts require that the evidence and testimony be tied to the standards. The motion needs to relate why the standard was met. Chairman Davis said that they make sure that all the standards are satisfied by the evidence and it is repeated two or three times during the hearing, however, it is a hindrance to make a motion and recite them again. The standards are also set forth in writing in the case file. Village Attorney Martens suggested that in the motion to reference, for the reasons set forth in the application, that will help. Director of Community Development Kallien said that it is very important to become familiar with the request. The applicant also questions how long it will take to process the request through the system. He reviews the meeting schedule, but he said that it is not uncommon for the hearing bodies to take one or more meetings to fully evaluate the case. The applicant believes their cases are cut and dry. However, as a case is presented questions or issues may come up that may require additional information from the applicant. The applicants have been advised that it may take more than one meeting by the hearing. Member Braune commented that complex matters might require more than a weekend to review the case file. The property may need to be visited, etc. Member Wolin asked if it would be reasonable to get the files a week in advance of the hearing. Director of Community Development Kallien said that the process could be reviewed and it may require in the future, for the applicant to provide materials sooner than has been required in the past. We want the hearing bodies to really look at the project and become familiar with it. We will work with the applicant to obtain documents sooner so that they can be provided to the hearing bodies sooner. Each member identified themselves IV. OTHER BUSINESS There was no other business discussed. V. ADJOURNMENT Member Zaheer moved, seconded by Member Shah to adjourn the meeting. VOICE VOTE: All in favor. Motion carried. Meeting was adjourned at 8:45 p.m. ZONING BOARD OF APPEALS Minutes 7 ZBA- MTG.2003 -FEB Director of Com • nit ent Secretary April 1, 2003 Date Approved February 4, 2003