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Minutes - 07/07/2008 - Zoning Board of AppealsQ 3. Ell W MINUTES OF THE JULY 7, 2008 REGULAR MEETING OF THE ZONING BOARD OF APPEALS OF THE VILLAGE OF OAK BROOK APPROVED AS WRITTEN ON SEPTEMBER 2, 2008 CALL TO ORDER: 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 7:30 p.m. ROLL CALL: ROLL CALL Gail Polanek called the roll with the following persons PRESENT, Chairman Champ Davis, Members Jeffrey Burn, Glenn Krietsch, Baker Nimry, Joseph Rush, Steven Young and Wayne Ziemer IN ATTENDANCE: Robert Sanford, Trustee and Robert Kallien, Jr., Director of Community Development APPROVAL OF MINUTES: MINUTES REGULAR ZONING BOARD OF APPEALS MEETING OF JUNE 3,2008 Motion by Member Krietsch, seconded by Member Ziemer to approve the minutes of the June 3, 2008 Regular Zoning Board of Appeals meeting as written. VOICE VOTE: Motion carried UNFINISHED BUSINESS B BUSINIS rNESS There was no unfinished business to discuss. NEW BUSINESS NEW BUSINESS A. PARKS -- 3701 MADISON STREET -- VARIATION — ZONING ORDINANCE SECTION 13 -3 -6B FENCES — TO ALLOW THE CONSTRUCTION OF A WIRE FENCE IN EXCESS OF 42 INCHES WITHOUT A TOP MEMBER OR ADDITIONAL LANDSCAPING Chairman Davis stated for the record that Christina Morrison from Day and Robert Law office was a former student from a course that he taught at Kent Law School. He said that would in no way affect any decision that he would VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 1 of 14 July 7, 2008 I M� make in this matter and he would render a fair and objective decision. He asked whether anyone had any objections and if so he would step aside. No one spoke in the audience voiced an objection. Chairman Davis swore in those that would testify in this matter. Mrs. Morrison reviewed the background and variation requests. They are requesting S variations. • The first variation is to allow the installation of the Omega fencing, which is a wire fence that the village does not allow. • The second variation is to allow the fence to be 72- inches high. The current restriction is 42- inches. • The third variation is not provide a top member or brace as required, since the Omega fencing proposed does not include those. • The Omega fence is a 6 -gauge wire, which is stronger and thinner than the Code requirement of 9- gauge. • The fifth variation is a request to not provide the required landscaping that on either side of the fence since the property is very heavily wooded. The proposed fence will be located within the tree line and traditional landscaping will not grow beneath the tree canopy and would look out of place. The area is secluded with large spaces between the homes. Several years ago, the Parks were victims of a break -in and assault in their garage and the assailants fled into woods. The Oak Brook Police recommended that the Parks get a dog, so they purchased a German Shepherd. The dog accompanies Mrs. Parks everywhere on her property and as she goes through the neighborhood. A neighbor complained to the police department of alleged trespassing by the dog and Mr. Parks was prosecuted under an Oak Brook Code violation for not confining the dog on the site. The case was dismissed when the complainants did not appear in court. The Parks have invested in an invisible fence and dog training, but neither has proven successful in keeping the dog on the property. The dog was taken to an animal behavioralist who stated that the dog could not be trained to remain on the property without a fence, but could be trained to do so with a fence. The Parks proposed this fence hoping that it would allow the dog to have free access while outside, and preventing the dog from disturbing the neighbors and avoid further police intervention. The fence would be placed in a way to fill in areas along the property line without an existing fence, which would remain and not be replaced. The property is traversed with a tributary to Salt Creek. There are steep grades over most of the property and the fence will follow the topography. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 2 of 14 July 7, 2008 0-00k John Eifler, Architect, Eifler & Associates, said that when Mr. Parks approached him regarding a fence around the property he immediately thought of the Omega fence as being a solution. Recently they were involved with the restoration of the Alfred Caldwell Lily Pool in Lincoln Park. With that and other landscape oriented projects including Graceland Cemetery in Chicago they learned of the Omega fence as being an appropriate solution for parks, primarily because it is a new technology and it goes away as much as possible in this heavily landscaped site. In addition to its transparency, the absence of the top bar is actually a good thing because anyone attempting to get over the fence would have difficulty, so the looseness of the top is a good positive attribute. They have looked at other types of fences and have been involved in many kinds of fencing problems and solutions. The fence is black and comes in a very dark brown color. Winter or summer, the fence becomes almost transparent. He would recommend this fence for Parks as well as other properties in Oak Brook. Mrs. Morrison noted for the record the response to the variation standards were submitted as part of the application. Mr. Eifler noted that a variation would not be needed for the proposed 6 -gauge wire since it is actually thicker than the minimum requirement of 9- gauge. Member Bulin asked what the height was of the existing fence on the property. Mr. Eifler responded that some sections are 48 -inch high cyclone fence and the wooden fence located at the front portion of the property is 60- inches in height. Member Bulin noted that approximately 536 feet of existing fencing around the property is 48 inches high and questioned why 72 -inch fencing is needed for the remaining 950 feet. Mrs. Morrison responded that the Parks are trying to do all they can to keep the dog from the neighbors property that is having trouble with the dog. For some reason the dog does not go onto the other properties. Member Bulin said that in theory the dog could jump over the 48 -inch fence and go around so he questioned whether a 72 -inch fence would be necessary to hold him in the yard. Mrs. Morrison responded that they would like a 72 -inch fence as well as having a trainer teach the dog to stay within all of the fencing on the property. The VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 3 of 14 July 7, 2008 height of the fence is to keep the dog inside, in case the training does not work. Member Young said that he had spoken with the DuPage County Sheriffs office Canine Unit as well as the Oak Brook Police's Canine Unit and they said the existing four -foot fence would not hold the dog. Member Bulin questioned that if the dog does not get out of the existing 48- inch high fence, then why would it be necessary to have a 72 -inch fence around the whole property to keep him in. The proposed fence, without a top bar, would also limit access by people as well. Chairman Davis questioned if making it more difficult for someone to get onto the property was a factor in the request. Ms. Morrison responded that was also a factor. The assailants came into Mrs. Parks' garage through the woods and had access to other neighbors' homes that same day. With this fence, the Parks are trying to balance what the neighbors will see, with security and their desire to restrain their dog. They would like the existing fence to remain as it is because it has been in place for years. The neighbors have either not opposed it or said it was fine. This is the Parks attempt to change the least amount of the feel of the neighborhood as possible. Chairman Davis noted that the property is very secluded and nothing is visible from the street. All members of the audience were sworn in prior to providing testimony. Michael Scheer identified himself as the neighbor that had been attacked by the applicant's dog. He provided some background regarding the break -in that occurred. The Parks were not the only one's where the break in occurred. Two young males that worked at Fullers were responsible. They would take the uncles car and cruise the neighborhood and their agenda was simple. They would ring the doorbell and knock on the door and if no one answered, they would break in. If an alarm rang, they would leave. They attempted to break -in in their home as well and they had a 21 -year old in the house at the time. Their response to the attempted break -in was to install a wireless security system. He and his wife also carry a pager so that they could communicate if anyone would attack them at home. With respect to the cases, only one was dismissed against the dog. In the first case, they did go to court and the Parks were fined $75.00 and instructed to keep the dog on a muzzle or in a dog run. The second time it happened the VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 4 of 14 July 7, 2008 M a� police went over to the Parks' home and no one answered the door. The third time, the dog came across the yard, attacked their dog and knocked down his wife. They could not attend that hearing and the matter was dismissed. There were separate incidents where his wife was involved and two others where no one was hurt, so they simply did not call the police. Over a year, there were 5 incidents and DuPage County said there was nothing they could do, but advised them they could file a civil suit. He noted that in the summer, the area is wooded, but in the fall through spring, it is not, and you can see directly across the ravine and there is nothing that would keep them from seeing a fence. They also consulted a trainer and they were told that the only way to restrain this dog is to make sure there is a muzzle on it when outside or that it is otherwise confined to a dog run. They do not see any reason why a fence would keep the dog out. Eventually, it will tunnel under it or if it is in ravine, it will jump over it. He is very concerned that the request is to protect a dog fxom getting off the property. The dog is a guard dog, it goes after people and animals and they oppose the fence. When the dog does not get through the electronic fence, it stands on the property and barks from 8 a.m. to 5:00 p.m. It has not been happening recently because they have been putting it into the dog run. When they purchased the dog it was relatively small and they got along. As it grew, it came across and in the last year has become dangerous. Allowing a high fence would gust encourage the dog to bark. They do not believe a fence is the answer whether it is 4 feet or 7 feet, they think the answer is to keep the dog restrained. The wild life run through the ravine and a fence would restrict that. This kind of dog should not be allowed to roam within a 3 -4 acre neighborhood and should be kept in the dog run. They oppose the fence. Member Nimry questioned why the electric fence did not keep the dog on the property. Mr. Scheer said that it did not because the dog learned how to take the hit, especially if he runs quickly. Member Young said that when he had a conversation with the Canine Unit they said that dogs struggle out of the hit even if it is a long -term hit depending upon the age and the fur of the animal. He also called the electronic fence company and they said that the dog could struggle out of it. Mr. Scheer said that the last thing they want is for the dog to sit 75 yards from the fence on lugher property and bark incessantly, which happened for a year. Member Young questioned whether the complaints were for a vicious dog, which is different from a dog not being leashed, going onto another property. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 5 of 14 July 7, 2008 The Village Code contains provisions for "running at large." Mr. Scheer responded that they were told this type of violation did not exist in the Village Code. Director of Community Development Kallien responded that the Zoning Board has the responsibility to act on the request regarding the zoning matter, which is the request for the fence variation to height and style. Although the other issue is germane, the Board must try to separate it. Member Nimry said that the issue of the dog could not be separated from the issue, because without the dog, the applicant does not need the fence, so the justification for the fence could not be separated from the request. Director of Community Development Kallien said that the board could look at whether there might be other alternatives for keeping the dog on the property, such, as reducing the height of the fence, or the type of fence, etc. Chairman Davis said that the direction to the Zoning Board is not to grant any variation to the Zoning Ordinance unless the circumstances are unique. From time to time arguments are made that if a variation is granted in a certain situation it may set a precedent for other situations. In the many years that he has been on the Zoning Board, he has never heard that precedent argument made. The reason that it has not been made, and why it does not set a precedent, is because each application that comes before the Zoning Board must have something very unique about it or the Zoning Board is not authorized to recommend approval of the request to the Village Board, which ultimately approves the request. Member Young questioned the statement made by Mr. Scheer that the fence as proposed would interfere and displace wild life forcing them into other yards. Mr. Scheer agreed and said that it would interfere with the natural transportation of the wildlife. They border the county parks, so animals coming up the roads would not be hindered from going up and down the ravines. If a fence would be installed, their main concern is that there would be additional dogs. Member Krietsch asked if Mr. Scheer would have the intention of seeking a variance to install a six -foot fence, Mr. Scheer responded that they would not, because their dogs do not trespass VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 6 of 14 July 7, 2008 onto other people's property and are not used for protection. Member Krietsch asked if Mr. Scheer thought there was a unique nature to this circumstance. Mr. Scheer responded that there is no unique nature to the request. The applicant is alleging without approval of the fence for a guard dog that it cannot be kept on the property, therefore people will trespass and the dog will chew them up. Issa Mausher 3610 Spring Road said that their problem is not trespassing, but the dog barks incessantly every day starting at 7:00 a.m. They tried to talk to the owners but without any response. He dreads the idea that one day Mr. Scheer may one day want a fence that is six feet high because his property is above him and would look ten feet high next to him, which would be scary The dog did come to his property twice and startled him. The second time his wife was walking the property and called and told her to be careful because there was large dog on the property. They did not get hurt, but they were startled. Mrs. Morrison noted that she was unaware of the other two lawsuits mentioned by Mr. Scheer; the one she spoke of was going on when they filed the applicant for the variation. She would like to have the Oak Brook Police Dept come and testify to the other two alleged incidents or provide tickets or citations if available from the Police Department. In regard to the fact that the dog would tunnel under or ultimately jump over the fence, the Parks have hired an animal behaviorist that said that they could keep the dog from jumping or tunneling. The Parks informed her that they do not allow the dog to stay out from 8 a.m. to 4 p.m. and if they have the fence, they would want the dog to remain near them, so they would not allow it to be outside the house roaming for hours at a time. The also do not believe the dog is dangerous. They have 3 pre -teens and have never had any behavior problems with the dog. They have not had any other incidents with any other neighbor and the dog. If the Board would like Mr. and Mrs. Parks could testify to the dangerousness of the dog. In response to the small animals that traverse on the Parks' property; they are not wild life experts, but they do represent the DuPage County Forest Preserve District She spoke with John Oldenberg, who is a Naturalist with the district and he stated that deer could jump fences up to 10 -feet tall. While there are VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 7 of 14 July 7, 2008 P� fawns born this spring in the neighborhood, that by the time they are 6 months old they are able to jump a 4 -5 foot tall fence and at a year could jump up to 10- feet. As far as smaller wildlife on the property, there will be six -foot long culverts approximately 2 feet in diameter with barriers that would be in place under the fence that traverse the tributary. She was told that a small animal would go into a culvert as long as there is enough ambient light to ensure there is not a predator inside. The dog would be too large to go into the culvert. If the Parks are able to build the fence, they are hoping that it would balance their desire to have their dog with theirs as much as possible when they are on their property, along with the neighbors' right to be in their yards without being scared by their large dog. They believe this is the best solution for the current problem and if any future problems arise, they are dealt with at that time and only deal with the current issue at hand. Chairman Davis said that he was concerned about the comment that anything the Zoning Board would do would set a precedent and that is not the case. The circumstances for each matter recommended for approval must be unique. Chairman Davis said that it would be important to have the Parks present at the hearing; also to iron out the police issues; and for the Members to go view the property, if they have not done so. A request to continue the matter would be considered so that all the facts are before the Zoning Board. It is an important issue and the more facts that are presented; would enable more facts to be provided to the Village Board depending upon the action taken by the Zoning Board. Member Nimry questioned if the variation standards could be provided by taking the dog out of the picture to see if they could still justify the fence. Without the dog, the standards cannot be met and there is no need for the fence. You cannot separate the Code. They are not in compliance with the Village Code for vicious animals. Chairman Davis commented that was not an issue before the Zoning Board, however, the Board would not want to be in the position of a recommendation that might place the applicant in conflict with other Village codes. Director of Community Development Kallien responded that he would meet with a representative of the Police Department and find out when they receive the calls; find out what the normal process for investigation and reconciling the VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 8 of 14 July 7, 2008 a W0.0-4,_ - im issues. For example, does the Police Department issue tickets automatically and what is the course of events that leads to enforcing those regulations? When you read the language, it appears that, based upon the information provided that there may be some violation of these ordinances. So what happens from the Villages' perspective? If necessary, a representative of the Police Department could come to the meeting. Chairman Davis said that information would be helpful to the Zoning Board. Member Nimry said that he would also like to know from the Police Department if there have been reports that the dog is outside barking for 6 hours a day. Director of Community Development Kallien said that during the review of the "Noise Regulations" it was found that there was a number of barking dog complaints received from the Police Department. Chairman Davis said that the question would be whether the request before the Zoning Board for the fence would have any bearing on the dog barking, because the dog could bark in the dog run whether or not there is a fence. Member Young said that after speaking with the Oak Brook Police Department did not seem to think that Buddy the dog in question, was a vicious dog. From his conversation with them, it was his understanding that was not the case at all but that the dog may be trying to assert dominance over human beings or other animals. However, there was no opinion that the dog was a vicious animal in any way shape or form. Mr. Scheer said that two tickets should be found on file, one for a fine of $75.00 that was paid and the other ticket was the one where he was unable to show up and it was dismissed. The barking has been going on for a long time. They were told there was not a vicious dog law by DuPage County and Oak Brook, but they will now pursue that civilly as soon as they can. Mr. Mausher said that he was not sure if the dog barks for 6 hours or if it is out for 6 hours, but definitely at 7;00 a.m. every day, the dog wakes whoever is asleep at that time, including weekends. Member Young asked if the Parks had explored a monitored alarm service. Mrs. Morrison said that she did not know, but said that they did get the dog on the recommendation by the Oak Brook Police Department because of the VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 9 of 14 July 7, 2008 incident, which happened at their home. Member Young asked why they chose fencing over a kennel. Mrs. Morrison said that the purpose behind getting the dog was to have the dog available whether they were inside or outside on the property. They do have a total of 4 acres, but they are only requesting to fence in 2 % acres. Mrs. Parks does not go anywhere on her property or in her neighborhood without Buddy. Unfortunately, by putting him in a dog run should something happen while he is in there would not be of much assistance. The animal behavior specialist did tell them that he would be able to keep the dog on their property if they did build a fence. They believe this is the best option since it balances their desire to have the dog with them as much as possible along with the neighbors' desire to prevent the dog from trespassing. Member Bulm questioned the gaps and the actual boundaries on the properties, which could impact the actual fence location. Mrs, Morrison explained that when the Chicago Title Company was doing research into insuring the Parks' property they found that there was a gap along the eastern edge of the property that affected two neighbors and the Parks' new property. It was also found along the north side of the Parks' property that affects the Mausher's and the Parks. Chicago Title has recommended that they will not insure these gaps under any circumstances because they have been in place for so long that they were most likely due to survey error between the 1950's and 1980's. They have recommended that the two neighbors divide the parcel in half and Quit Claire the opposite side to each other and that would divide the gap in half. Chicago Title has said they would then insure both sides of the gap to each neighbor. Member Rush said that if the dog is out of the picture then the circumstances are not unique. There have been a lot of people in Oak Brook that have been robbed, etc. When people acquire a pet, they take on the responsibility to make sure that they are not a problem for their neighbors. They chose to get a dog that could clear the fence so it is their responsibility to make sure that it is contained. The dog is the issue and he disagrees that this would not be precedent setting. He said if the fence goes in; there would be a lot of requests for 6 -foot fences. Chairman Davis responded that he respected the disagreement. Mrs. Morrison responded that in response to unique circumstances, the Parks VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 10 of 14 July 7, 2008 own a total of 4 acres and they would like to fence in 2.4 acres. It is their belief that the size of the property and that of the neighbors' property make this fence within the scope and would not be unreasonable as opposed to quarter acre lots. In addition to securing the dog, there is a security aspect of the fence. They hope it would keep out any possible future thieves from coming onto their property; because they are so secluded and set back from the road; they really cannot see any of their neighbors for 6 -8 months out of the year. Member Rush noted that a set of wire cutters would take about 5 minutes to allow an intruder onto the property. Member Ziemer questioned where fences are allowed on properties. Director of Community Development Kallien responded that fences are allowed in all yards, a maximum of 42- inches high and 50 percent open. Several years ago the Village limited the ability to use chain link or wire material. Oak Brook has rather restrictive fencing regulations, most of which has been in effect since the ordinance was approved in 1966. Some subdivisions have covenants where fences are not allowed. Fencing for pools is required to be higher according to the building code. Provisions are allowed for dog runs. There may be fences on the property that predate the ordinance and they are allowed to exist and can be maintained. Chairman Davis said that in regards to something being precedent setting. Never has the argument been made or that someone has ever used stating that something was allowed somewhere, so that it should also be allowed somewhere else that was the basis for his comment. Mr. Scheer said that it seems to him that there is an easier way to protect Mrs. Parks than to let the dog sit at the fence and bark for hours. Chairman Davis said that alternatives are something that are important to the Zoning Board and would be considered in whatever recommendation is made, including absence of alternatives or the availability of alternatives. Trustee Sanford said it was stated that the dog could not be trained to be confined on the property, and they have an electronic device that cannot keep the dog on the property. However, the trainer states that he can train the dog to not dig or jump over the fence, but cannot train the dog to stay within the confines of the property. Mrs. Mon-ison stated that the Parks enlisted the aid of an animal behavior VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 11 of 14 July 7, 2008 specialist who has a vast experience. He told them that the dog could be effectively trained to stay on the property, but it would require a fence. Member Bulin asked if the trainer said what height the fence needed to be to train the dog to stay in the yard. Mrs. Morrison said she could not honestly respond because she had not spoken to the trainer herself. Mr. Scheer said that their animal behaviorist said that a fence would not work that the dog would have to be kept on a muzzle or in a dog run. He suggested the behaviorist be required to testify under oath. Member Young asked if any other security options were considered. He questioned the culvert and asked if the Village Engineer had been consulted. Mr. Eifler responded that he had been asked to only look at the fence not other options. Director of Community Development Kallien said that the culvert stormwater review was done by Mr. Burke, who was one of the leading engineers in the Chicago metropolitan area and had done a lot of the work behind the DuPage County Floodplain Ordinance. Village Engineer Durfey reviewed his input and he was satisfied with it. Member Young requested to see a copy of the Stormwater report. Mrs. Morrison showed Mr. Mausher the plan showing the gaps of land on the property that affected him. Mrs Morrison said that they did have an informal meeting with the neighbors. 40 were invited and 4 showed up. They did have a private meeting with Mr. Scheers and his attorney. They had asked if the Scheers had any other ideas that would solve and balance the issue and they have not bad anyone come to them with any other viable alternatives. Mr. Scheer said they did respond to the request and said that a dog run and a muzzle would be the proper way to restrain the dog. Member Young questioned if deer could be harmed by attempting to jump over this type of fence. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 12 of 14 July 7, 2008 Mr. Eifler responded that it has been used at the Morton Arboretum and they typically study these things thoroughly and it would be a pretty safe fence. Member Young noted that based on the top of the fence, a deer could not get impaled but could get tangled. Mr. Bulin noted that the proposed fence is used in animal habitats. He noted that he did see a deer impaled on a fence at the Bronswood Cemetery. The fence has vertical posts and the deer misjudged it. He said that he would help with security because it would be very difficult to climb it. He noted that it appears there is a much a desire to keep people out as well as to keep the dog in, which is why this type of fence was chosen. If the dog issue is removed, the necessity of the fence raises a different set a questions. He is also concerned with the fence disrupting the natural flow of the movement of the wild life. Member Bulin said that his issue was the fact that there is a large discrepancy in that 536 feet of the existing fence is 48- inches high and the request is to add 949 feet of 72 -inch fence, it does not make much sense. Director of Community Development Kallien said that he would try to reach someone with DuPage County and see if there is any documentation, they may have relative to the impact of fencing on wild life. Member Young said that he felt it would be important to have someone from the Police Department present. Chairman Davis said that it is important to have all the facts before the Zoning Board at the next meeting and that the Parks be present at the hearing and important for everyone to view the property prior to the next hearing. Peggy Mausher, 3610 Spring Road said that her husband is not home a lot, but she is and the dog barks all day long; and can bark for 2 -3 hours straight. If the fence is allowed the dog would sit out there and they would have to tolerate it. Mrs. Morrison asked for a continuance to allow more time to discuss the issues with the neighbors, and have more time to get more information from the Police Department and the Forest Preserve District as well having the Parks available to testify as to their belief regarding the habits of the dog. Motion by Member Rush, Young, seconded by Member Ziemer to continue the public hearing to the next regular Zoning Board of Appeals meeting. VOICE VOTE: Member Krietsch voted nay. Motion carried. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 13 of 14 July 7, 2008 6 OTHER BUSINESS OTHER BUSINESS 7. There was no other business to discuss. ADJOURNMENT: Motion by Member Young, seconded by Member Bulin to adjourn the meeting at 8 :48 p.m. VOICE VOTE: Motion carried ATTEST: Robert Kallien, �rectgj;/of Community Development Secretary VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 14 of 14 July 7, 2008 ADJaURNMEN F