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Minutes - 05/03/2011 - Zoning Board of Appeals01 3. 5. MINUTES OF THE MAY 3, 2011 REGULAR MEETING OF THE ZONING BOARD OF APPEALS OF THE VILLAGE OF OAK BROOK APPROVED AS WRITTEN ON JUNE 27, 2011 CALL TO ORDER: 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 7:02 p.m. ROLL CALL: Gail Polanek called the roll with the following persons PRESENT: Chairman Champ Davis, Members Jeffrey Bolin, Natalie Cappetta, Baker Nimry, Joseph Rush, Steven Young and Wayne Ziemer. IN ATTENDANCE: Mark Moy, Trustee, and Robert Kallien, Jr., Director of Community Development APPROVAL OF MINUTES: There were no minutes to be approved. UNFINISHED BUSINESS CALL TO ORDER ROLL CALL MINUTES UNFINISHED BUSINESS A. PRIDMORE — 15 GLENOBLE COURT — VARIATION — FENCE FRIoMOu - 15 GLENOBLE CT - HEIGHT VARIATION - FENCE HEIGHT Chairman Davis noted that counsel for the Forest Glen Homeowner Association had requested the public hearing be continued to the next regular meeting. The applicant did not object to the request. Motion by Member Rush, seconded by Member Nimry to continue the public hearing to the June 7, 2011 meeting. VOICE VOTE: Motion carried. NEW BUSINESS NEW BUSINESS A. GROTTO OAK BROOK — 3011 BUTTERFIELD ROAD — SPECIAL GROTTO - 3011 BUT ERFIELD RD - USE — AMEND CONDITIONS CONTAINED IN ORDINANCE S -1117 sPEciAL um - AMEND ORD S -1117 VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 1 of 14 May 3, 2011 �irJ Chairman Davis swore in those that testified at this hearing. Don Lullo, General Manager of the Grotto Italian Steakhouse restaurant, said that granting approval of the special use would allow them to bring more guests into the Oak Brook area and would increase tax revenue. Over the last three years they have paid almost one million in sales tax. Many restaurants in the DuPage area are now providing live entertainment and speaker music on their outdoor patios such as in Lombard and Oakbrook Terrace. Some of these restaurants are located right across the street in another community and takes away sales and tax revenue from Oak Brook, and also creates a disadvantage and hardship for their facility. As a restaurateur, they respect the neighbors and surrounding communities in making sure that the Village ordinances are adhered to. It is their understanding that the more recent approved outdoor dining special uses no longer are restricted by dates to utilize the outdoor dining area, and they have requested that relief as well. In response to the standards for the special use, he stated that all ordinances for the health, safety and welfare of the public as required by the Village would be strictly adhered to. They are not seeking any changes to the zoning and the request would not injure or devalue property in the neighborhood. Live entertainment will help to enhance the viability of the restaurant by allowing them to offer those same amenities to their customers that are available in nearby communities. Live entertainment is allowed on the patio at Redstone on Wednesday, Thursday and Friday nights. Weber Grill has live entertainment on Friday evenings. Champps has live entertainment on Thursday and Friday and Gibsons has live entertainment on Saturday and Sunday. They are only asking for a fair chance to earn the same revenue as some of the other nearby restaurants in the nearby communities. At the Plan Commission meeting, questions were raised as to how they would handle complaints or problems with live music. He responded that they would handle each complaint with immediate attention by documenting all information received from residents and have a follow up plan of action to ensure that the resident is satisfied with the course of action. As of January 1, 2011, they started a log book, which strictly details the date, time, manager, incident and action taken. Since that time, he has not received one phone call, or email or physical complaint from anyone in the community complaining about live music. If he had, measures would have been taken to make sure that the music would be at acceptable levels. Another question was raised on how they would control the issue, should noise become a problem. He responded that besides the above plan, they have a VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 2 of 14 May 3, 2011 manager walk- through, where they physically check on the sound and they drive out to the surrounding communities. He has taken managers out of the operation to further insure that they are respecting the neighbors. They have moved the speaker locations to other areas and have faced them inward to help bring the noise more inside to the event, than outside the event, away from the street or nearby community. The volume control for the music will be strictly controlled by management. Music is controlled through volume. If it is too loud, it is turned down. He has been with the Grotto since last July and has over 100 employees. They are asking that the special use be amended. They want to do what is right. Chairman Davis questioned his meaning of live music. Mr. Lullo responded that would be live bands, singing, or a DJ that has their own speaker system on the outdoor patio. Chairman Davis noted that the special use factors were addressed in writing in the case file. Mr. Lullo addressed the questions raised by the Village Board as follows: a. How do you control the volume level? One band may be quiet and the next noisy. One day the speakers are down low and the next day they are turned up loud. Response: The volume levels will be strictly controlled by management and set to decibel levels in compliance with all village ordinances. The music is controlled through volume, if it is too loud, they will turn it down. They will physically check all volume levels by traveling to neighboring locations while live music is being played, so that they can insure that all ordinances are being adhered to. b. What will he the location and direction of the speakers? Response: Speakers will be located on the south side. The small speakers will be pointed in towards the building and down on the patio floor away from the outer parts of the patio. These speakers usually play dining music They are trying to contain the noise more inside the event, rather than outside the event into any community nearby. c. What can be done to deaden the sound? Response: The subwoofers will also be controlled, which tends to produce a louder decibel and can carry sound. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 3 of 14 May 3, 2011 d. How would they control this issue if noise would become a problem? Response: They started a tog book to track any resident complaint, logging the date and time. They will do everything in their power to make sure that the music does not disturb the residents in the area by adjusting volume control. They will also provide contact information to the residents to address any concerns or questions they may have. e, What hours of operation are being requested for the music on the patio? Response: They are requesting approval to have music on Thursday from 8 to 12:00, Friday from 9:30 to 1:30, and Saturday from 9:30 to 12:00. How will noise or complaints be handled by the Grotto? Response: They will handle each complaint by documenting it and getting all information from any resident and do a follow up plan of action to insure that the resident is satisfied with their course of action. Special Use Standards 1. Is of the type described in subsection Al of this Section, is deemed necessary for the public convenience at that location. This does not apply to this request. 2. Is so designed, located and proposed to be operated that the public health, safety and welfare will be protected; They will adhere to all DuPage County and Village ordinances for the health, safety and welfare of the public as required by the Village and will be strictly adhered to. 3. Would not cause substantial injury to the value of other property in the neighborhood in which it is located. The request for special use for music on the patio area will not injure or devalue any other property in the neighborhood in which they are located. This will help enhance the viability of their restaurant by allowing them to offer the same amenities to their customers as are available in other nearby communities. Chairman Davis asked if the Grotto would be willing to adhere to the conditions stated in response to the questions he answered at this hearing and made part of the special use. Mr. Lullo responded that they would. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 4 of 14 May 3, 2011 Member Young asked if the Grotto would be willing to adhere to the sound ordinance and accept any penalties and fines. Mr. Lullo responded that they would. Member Nimry noted that moving the speakers toward the wall would bounce the music out, unless there has been some modification made to the wall. He also questioned where the measurement would be taken. Director of Community Development Kallien responded that there are two clauses in the Zoning Regulations; one would be at the property line and or twenty -five (25) feet from the source. In this instance that would be in the middle of the pond. Member Young questioned how the noise would be controlled. Mr. Lullo responded that they are in the process of getting a decibel meter. If the special use is approved, the acceptable decibel level and the location of where the reading is to be taken is identified, they would then follow those requirements. They would start and maintain a decibel log book with decibels recorded every 30 minutes, if required. Member Young said that it would be difficult to monitor it without a decibel meter. There is a local health standard as well for decibels. He questioned whether there was any baffling. Mr. Lullo said that they are currently looking at trying to use sound curtains. Member Young questioned where the complaints are coming from and from whom. He asked for more data from the complaints. Member Ziemer questioned whether the subwoofer was independently controlled from the rest of the volume of the speakers. Mr. Lullo responded that they are controlled by the DJ's. The speakers that were installed in the restaurant wall of the patio area are background music speakers that run the length of the patio, so that the direct music is right fiom the DJ area, which would be a subwoofer into regular speakers. Member Ziemer noted that lower decibels are usually harder to control and reverberate much louder, which seems to be the source of irritation. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 5 of 14 May 3, 2011 Mr. Lullo said that the DJ booth is located directly across from the two doors that come from the lounge to the patio. The subwoofer sits on the ground and faces directly into the building with the doors open to the restaurant. Member Bulin questioned if there was any flexibility with the hours being sought. Mr. Lullo responded that a good portion of their revenue is made on Friday between 10:30 and 1:30. It is a late night group of all ages that like to dance. The Grotto takes in almost $5,000- $12,000 in a three hour period. Four times a month that covers the rent each month, so it has become very important to them and they are willing to work with the village. He noted that he has not received one complaint or phone call. It appears from the complaints it was the music from Friday evenings, not Thursday or Saturday. On those two days, sometimes they shut down earlier than midnight, depending on the crowd and the weather. They are willing to work with a middle ground. There are a lot of late night people that like to dance. Member Ziemer questioned the possibility of a lower threshold of sound after midnight. Mr. Lullo said they would. Chairman Davis asked what kind of response had been received form the neighbors at the Promenade. Mr. Lullo responded that there were letters submitted from the General Managers of both the Kona Grill and McCormick and Schmick in support of the amendment. They have a good working relationship. They network and are a community. The property owners, NAI Hiffman support the amendment. He has not received any negative response from within the Promenade. Member Cappetta said that the sound ordinance applies to both the commercial and residential properties within the village. She asked that if a complaint was taken from a resident with noise in the backyard, would a sound meter be used. She noted that the police reports indicate that the noise did not seem loud. Director of Community Development Kallien responded that when the police department goes out, it is subjective judgment. The village has sound meters that can be used. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 6 of 14 May 3, 2011 vi-11— Member Cappetta noted that the sound ordinance breaks down the allowed decibels during certain periods of time. If the Grotto is within the allowable limits, they are okay. If there are residents who believe it is too loud, then it is not the Grotto issue, the ordinance would need to be addressed, if the numbers are bad. Director of Community Development Kallien questioned Member Young that certain lower sounds may be within the decibel limits, but can be heard. Member Young noted that the lower decibels sounds can be impacted by age, pressure, weather, time of day, and other outside mitigating factors, so, it is very possible. There are a lot of variables, depending on where the reading is taken. As an example if the reading were taken from across the sheet at the Inland building at 4:00 p.m., just as rush hour is beginning, the number would probably be exceptionally high, because of all the traffic. The music could be played as loud as you wanted at that time, but it might not be the mitigating factor, it might be the traffic that is causing the problem. Member Nimry said that the numbers used in the sound ordinance were developed from community health standards. Member Cappetta said that the ordinance cannot be open - ended. The residents and commercial owners must have a standard that can be worked with. Member Young said that it is enforceable if there is a meter used. In other communities it usually falls within the police department or a dedicated code enforcement officer. Director of Community Development Kallien said that it was created because there was a debate in a residential area as to what was too loud. The sound ordinance was created after analyzing other communities' standards and it was determined to be a reasonable standard. Member Young noted that the intensity is to be measured as well due to short loud blasts of sound versus constant sound. The average number is taken after multiple readings are taken. The pond at the Grotto could amplify the sound; the surrounding streets are a contributing factor, as well as the time of day. Turning the speakers in toward the building can force the sound up the walls and can carry it. It would be a great idea for the Grotto to have a noise decimeter, with a physical printout. Dominic Ruggerio, 3 North Tower Road, President of the Oak Brook Towers VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 7 of 14 May 3, 2011 -�Z� townhome and homeowner associations said that they appeared before the Plan Commission last month and submitted written complaints. They also believe, before music is played a permit should be issued. They are primarily a senior community. They have residents who called the police and some of the answers received were unacceptable. They appreciate the Grotto's endeavors to provide entertainment, but at 1:00-2:00 in the morning it does affect their senior representation of their community. Chairman Davis asked him for comments regarding Mr. Lullo's efforts to address the problem, such as the log book, contacting him, etc. Mr. Ruggerio responded that the late night at that decibel is unacceptable. He did not know if any of their members ever attempted to call the Grotto, but the police were called. Baffling the sound may help. Chairman Davis noted that this is a different procedure in where the complaints would be directed right to the Grotto for handling. Robert Mesch, 20 North Tower Road, P floor, located northeast on the opposite side of the building and does. not directly face the Grotto. He hears base, mid tone and high tones. He questioned if the other restaurants play the music on the outside. He searched various problems from other areas in the country. The primary concern is the time in the evening when the music is played. Most prohibit noise after 10:00 p.m., including Ravinia that ends at 10:30 p.m. He suggested different venues of music later in the evening. He has been a resident since 2000 and has seen the growth in the area and understands progress. He has always known that Oak Brook is a quiet, classy, dignified place. The live music will permanently change the complexion of what Oak Brook is all about. Chairman Davis questioned if the observations expressed were current, happening now from this year or were they from last year. Mr. Mesch responded that there were a few incident over the fall and winter season, where he heard the music. Last summer was awful. He said that if no music has been played recently, then there may not be complaints since January. Chairman Davis asked if he heard anything in 2011. Mr. Mesch said that there was one evening in April and he did call the restaurant. He spoke with someone and the music was turned down. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 8 of 14 May 3, 2011 70e- Chairman Davis asked how he determined that the music was coming from the Grotto when he faces the opposite side or if it could be coming from another restaurant source. Mr. Mesch responded that it travels across the pond, across the road and reverberates off the walls of the other buildings. Mr. Lullo responded that research was done on the live entertainment of the other restaurants played last year. He personally called the restaurants a couple of weeks ago, acting as a guest and asked when they would be having live music on their patio. He testified as to what they told him and that it would be exactly the same time that they had last year, which included, Red Stone, Gibson, Weber Grill and Champps. Joe Weidman, 20 N Tower, (west side facing the Grotto), If" floor said that there is no sleeping on Thursday, Friday or Saturday night with the windows open because of the noise. The air conditioner must run in order to drown out the noise, which must be at the highest level in order to watch TV. He appreciates what the Grotto is attempting to do this year and hopes that it would make a difference. He did not want to see the Grotto lose their big revenue stream, which would be great for everyone involved. If it would be at the levels over the last couple of years, there will be many more police reports. He did call the police on several occasion and the gentleman on the phone explained to him that they were not allowed to address the issue, so obviously he did not continue to make complaints because it fell on deaf ears. If he stands on his balcony on a clear day he can hear people conversing from the Grotto. It sounds unbelievable, but he can he them talking. There is a sound phenomenon happening from the water, He could tell every song played, including the crowd trying to talk over the band. He would be willing to donate his condo or time to visit. It would be great if there were an agreed upon decibel level. Chairman Davis asked if music had been played this year and whether he had heard the music since the beginning of the year. Mr. Lullo responded that they have had music every Friday night since April 1. Mr. Weidman responded that said that no one has complained yet because the covers have been up and they have recently been taken down. He is concerned that there will not be a genuine effort to remedy the situation. Member Ziemer asked if the music had been acceptable over the last month. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 9 of 14 May 3, 2011 Mr. Weidman responded that it has been acceptable only because he has not as yet had their windows open. Through the closed window he could tell they were playing music. He would be willing to use a decibel meter. Barbara Richards, 20 North Tower Road, unit 8g, said that they are just about on the opposite side of the restaurant. Last year after midnight, she stood on her patio and wrote down the names of the songs announced on the play list. She went over there the following day and talked to George the day manager. Since the hearings have begun, she has heard music on Saturday evenings. She did not think that much has changed. When it first happened at Volare, she spoke to the manager and he told her that they had a keyboard and moved it. It is difficult to watch TV. There has to be a solution, which would be to reduce the decibel level. They are being negatively affected by it and does not want to go through another summer. Margaret Langer, 20 North Tower Road, Unit 8d, facing the Grotto, said that the noise is unbearable during the summer. She uses earplugs to sleep. Many of the residents work and she gets very few hours of sleep. She hopes that they can come to some sort of an agreement. She likes music and they can play it 24 hours a day, but not so that they can hear the music. It can be played quietly. She complained to the police and submitted a copy of the report to the village. She did not call the Grotto. She must have called the police department 10 times but they did not want to talk with her because she did not live in Oak Brook and was told to report it to another jurisdiction. She was basically pushed around and no one took her complaint seriously. The subwoofers are very loud. Mavis Koopman, 20 North Tower Road, 6h floor and said that she testified last time that she has taken her pillow into the bathroom to sleep at times. They are not seeking to put the Grotto out of business; it is about the time the music is being played. There are restaurants located west of them and they had an issue when they moved in. Each one of them took the issue at hand and changed the hours and moved their music to the inside. She did not believe the Grotto should make their money on the back of senior citizens who are having their health impaired by not getting a decent night sleep. William Linderman, 11 Pembroke Lane said that a restaurant should be able to make a reasonable return on their investment without asking for extraordinary relief. Oak Brook does not impose a food and beverage tax or levy a real estate tax on the structures in the Promenade. If you can't make it there maybe you cannot make it anywhere or maybe they are looking for too much return on VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 10 of 14 May 3, 2011 their investment. Any action taken here will set a precedent for the Village. The violation has been going on for two years. They don't feel they need to abide by the rules. He noted that the sidewalls were installed without a permit and violations exist. He questioned if another restaurant in the area would like to have the same thing on their patio. Oak Brook has always set the tone for class and to allow excessive profit at the cost of offending nearby residents and not complying with the desires of management of NAI Hiffman. They are hying to keep the stores rented. Mr. Lullo noted that the canopy and canvas was built when the original building was constructed. It was all permitted and inspected with fire suppression systems to pass inspection, which are on file with the village. Chairman Davis said that many comments made were about finding a solution, which is a positive comment. He suggested that the positive comments be distributed to Mr. Ruggerio. He asked if a sound expert has been consulted regarding sound baffling. Mr. Lullo responded that recently he had asked how to baffle the sound and to try to understand it. He has learned a lot at these meetings as well. They have been looking into sound curtains and whatever they need to do in order to find a middle ground. He does care about people, but it's confusing, because listening to these residents, when there are many other residents within sound range in high towers and complex's behind Champps and down Meyers Road north and to the south and no one else has complained in the many of these other areas. The only complaints are from the tower, although he respects what is being said. Member Young said that he should get in touch with some sound engineering firm familiar with white buildings. He understands that there are a lot of complaints from only one section of the community, which could do with age, height, and position of the building or the water. Chairman Davis suggested further investigation and to continue the matter. It seems like an issue that both sides would like to see resolved. Jane Henrickson, 20 North Tower Road, Unit 9g, on the northeast side of the building, said that the music bounces off the apartment building to the north. It has been going on for over two years. It is extremely frustrating. She said that the Plan Commission voted that they were not to play music until this was resolved and they have not stopped. VHLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 11 of 14 May 3, 2011 13�— Chairman Davis said that the Zoning Board wants to see that it gets resolved correctly to everyone's satisfaction. He suggested the resident's look over what the Grotto plans to do and discuss it. Director of Community Development Kallien said that many things were discussed at the Plan Commission meeting and there was a suggestion that live music should not be played on the patio until the special use was reconciled. He passed that information on to the Village Manager and the new Village president elect and there is discussion going on between them. Jane Henricksen, 20 North Tower Road, noted that there were questionnaires submitted to the Plan Commission and noted that they were sincere and heartfelt. Chairman Davis suggested the matter be continued. Member Nimry said that he did not know there was a liquor license that allowed liquor to be sold for hours after food service stopped, which would mean that it is acting like a bar. Director of Community Development Kallien said, that he would check into that. Member Cappetta commented that as sound travels it does not get louder it becomes less. If the decibels are measured 60 at the Grotto are in compliance, then it would not be out of compliance farther away. Member Young agreed. He added that it would not be out of compliance, but there could be other contributing noise added to it. Given the location of the towers it would not be surprising if traffic amplified the sound. Member Nimry said that the noise from I -88 would add to it. Member Cappetta suggested that some sound levels should be taken to see if they are in compliance. There are two issues in front of the Zoning Board and if there is a problem within the ordinance that would need to be addressed at another time, but it can't be fixed just for the Grotto, it would also impact those that were having a party and how the sound impacted the neighbor's house. Member Young said that some villages take on ambient noise studies. They measure every level of noise, every hour of the day for a period of time and create a noise level map. The map would indicate the average of the noise VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 12 of 14 May 3, 2011 level for specific areas at specific times. Until the village could afford sound level trucks and that type of engineering study, which would take over a year to accomplish that. At this time, only the measurements can be taken at the site over a period of time. Member Ninny said that I -88 and Butterfield road would amplify the noise from the restaurant. Member Young agreed. Member Cappetta said that the residents complain that the noise is to loud, but yet the police officers do not hear it that way when they go to the restaurant. Joe Weidman 20 N Tower, questioned what they could expect between this meeting and the next, since there has been an ongoing violation of the ordinance over the last two years. Chairman Davis responded that the Zoning Board does not have any control over those issues, although Mr. Kallien has assured that it will be addressed. Mr. Lullo will get together the things that the Grotto has done with the log book and the proposal and get them to the Homeowner's association with Mr. Ruggerio. The Grotto and Mr. Kallien will have further discussions on the expertise on baffling the sound. Any issues should be reported to the Grotto. Director of Community Development Kallien said that he takes his direction fiom the Village Board of Trustees. Jan Szalaj, Property Manager of the Oakbrook Towers, questioned why they were allowed to play music without a permit and should not be allowed. Chairman Davis responded that each of the Village's commissions have different bailiwicks and that is an issue that they do not have any control over. It is under a different element of the village and the Village Board. All comments are recorded, but it is not a matter that can be addressed by the Zoning Board, whose limited responsibility is changes to the zoning laws, which is only a recommendation made to the Village Boatel. Ms. Szalaj, commented her concerns regarding food being served until 11:30 yet alcohol is seined until 2:00 a.m. Member Young commented that the drinking issue would be a police issue. He questioned if the Tower condominiums had any sound baffling, noise VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 13 of 14 May 3, 2011 R1 protection, or the thickness of the walls on the buildings. Ms. Szalaj responded that she was unaware whether the building had any sound or noise protection and noted that they only high -rise condo buildings in the western suburbs, constructed in the 1970's and were originally constructed to be apartments. Motion by Member Rush, seconded by Member Bulin to continue the public hearing to the June 7, 2011 meeting. VOICE VOTE: Motion carried. OTHER BUSINESS There was no other business to discuss. ADJOURNMENT: Motion by Member Rush, seconded by Member Bulin to adjourn the meeting at 8:56 p.m. VOICE VOTE: Motion carried ATTEST: Robert Kallien, Direct r of go unity Development Secretary (-1--_ w..- - VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 14 of 14 May 3, 2011 I Y71gt�:rrby JefM ADJOURNMExr