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Minutes - 08/02/2011 - Zoning Board of AppealsMINUTES OF THE AUGUST 2, 2011 REGULAR MEETING OF THE ZONING BOARD OF APPEALS OF THE VILLAGE OF OAK BROOK APPROVED AS WRITTEN ON FEBRUARY 7, 2012 1. 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 7:01 p.m. 2. ROLL CALL: ROLL CALL Gail Polanek called the roll with the following persons PRESENT: Chairman Champ Davis, Members Natalie Cappetta, Baker Nimry, Steven Young and Wayne Ziemer. ABSENT: Member Jeffrey Bulin IN ATTENDANCE: Robert Kallien, Jr., Director of Community Development 3. APPROVAL OF MINUTES: MINUTES REGULAR ZONING BOARD OF APPEALS MEETING OF MARCH 1 2011 Motion by Member Young, seconded by Member Ninny to approve the minutes of the March 1, 2011 Regular Zoning Board of Appeals meeting as written. VOICE VOTE: Motion carried. REGULAR ZONING BOARD OF APPEALS MEETING OF JUNE 27,2011 Motion by Member Ziemer, seconded by Member Young to approve the minutes of the June 27, 2011 Regular Zoning Board of Appeals meeting as written. VOICE VOTE: Motion carried. 4. UNFINISHED BUSINESS UNFINISHED BUSMSS A. GROTTO OAK BROOK — 3011 BUTTERFIELD ROAD — SPECIAL GROTTO - 3011 BUTTERFIELD RD - USE —AMEND CONDITIONS CONTAINED IN ORDINANCE S -1117 SPECIAL USE - AMEND ORD S -1117 Chairman Davis reviewed the procedure for this meeting advising the public to keep comments and testimony regarding the Grotto to events that have taken place since the last Zoning Board meeting because previous testimony has VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 1 of 13 August 2, 2011 already been heard. Chairman Davis swore in those that testified at this hearing. Don Lullo, General Manager, the Grotto Oak Brook, reported that Mr. Cline, from Cline & Associates performed the acoustical studies requested by the Village. They collected data from two testing points in from the perimeter of the site and one set of data collected from the 12'h floor patio of a residence of the tower facing the site. The Cline and Associates report stated that while the Village "Performance Stands" in Section 13 -3 -10, calls for measurements to be taken from a point not less than 25 feet from the property line noise source, this area is covered by the retention pond. In discussions with Robert Kallien, Director of Community Development Kallien of Community Development, it was agreed to take measurements at two points along the property line. The first test point along Butterfield Road to the south and a second test point along Meyers Road to the northeast of the pond in line with the direction of the residential towers. Both test points were located well back from the road along the berm leading down to the pond. They also performed testing from a 12'h floor residence patio at 20 N. Tower facing the site to track general ambient noise levels and attempted to identify music levels coming from the patio DJ activities. Test point locations were annotated on the GIS study map provided by the Village and included in the case file. The results noted that the site is located within a contiguous commercial district along a six -lane divided highway. Similar light to moderate traffic movements were noted during all testing periods late in the evening. Not surprisingly for a commercial district, ambient noise levels were somewhat high especially in the lower frequency bands. They also noted music emissions coming from the Champps restaurant patio across Butterfield Road to the south that could be contributing noise reaching the residential tower. Measurements showed ambient levels during DJ activities tracking relatively closely to measurements taken just prior. Clearly levels at both test points were well below the Village 60 -dba limits in all frequency ranges. Measurements at the residential tower were inconclusive showing generally higher ambient noise levels associated with adjacent commercial districts slightly below those measured on site. Listing tests indicated only occasional designable crowd or musical content coming from the Grotto patio masked within ambient noise levels. It was important to note that the resident reported VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 2 of 13 August 2, 2011 that perceivable noise levels from the club had dropped recently perhaps attributable to management actions as recommended in their earlier report. He had summarized the noise reduction recommendations sent in an email to the Village and summarized it by stating, that per Cline & Associates they have followed all of their recommendations, they relocated patio speakers to the canopy frame side and aimed laterally (north to south) along the seating area versus outward. This was done to minimize direct transmission over the pond towards the residential towers. They have rotated wall mounted speakers 90- degrees taking advantage of the U- bracket mounting system to aim the loudspeakers downward towards the center of the adjacent patio dining areas. The patio foreground music speakers are fed from the portable DJ system and a separate control has been installed to keep remote loudspeaker levels in check to management established levels. Additionally, sourcing from the left -right mono sum bus is better suited for the remote fill loudspeaker applications such as applied, have been set up. This is the result of the testing done by Cline & Associates. On behalf of the Grotto, he said that they have spent over $6,000 trying to comply in order to get a recommendation. The testing results, as requested were presented to the board in the case file. He noted that on July 14, 2011, there was a call made from the residential towers to the Oak Brook Police Department and that the responding officer stated as follows: "The responding officers responded for loud music complaint by a resident of the Oak Brook Towers possibly coming from the Grotto Restaurant. Upon their arrival the responding officer checked the area and observed that the Grotto was closed for the evening. Upon checking the area further, the responding officers observed that there was loud music coming from the patio area of the Redstone restaurant, which partially faces the Oak Brook Towers." The Grotto followed up on any complaints that were received. The past Friday they had a temporary DJ and the music did get a little loud, which was corrected immediately. Their normal DJ's know that they have been working with the Village and with Cline & Associates to keep the music levels down to an acceptable level. He has spoken strongly on behalf of the Grotto and has monitored that there VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 3 of 13 August 2, 2011 have not been any complaints from any other residential building, condo or apartment, except for the Towers. It just seems hard to believe that this music is only affecting a certain group of people, when no one else around the area hears or has complained from any other location. They followed all of the recommendations made by Cline & Associates and the reports are in the case file. The speakers have all been relocated. Member Young referred to the conclusion of the Cline & Associates report (page 32.b of the case file) and noted that the noise measurements were well within or below the Village limitations. In addition, on top of that, the Grotto has implemented controls to reduce the noise further. He asked several questions of Mr. Lullo, such as whether any complaints had been received regarding the noise from co- workers, OSHA, or patrons of the Grotto. He questioned whether any letters had been received from any citizen group, National Association of Realtors or anyone else saying that property values have been diminished due to the noise. He asked if he had received anything from an engineering or structural engineering firm that any of the Tower buildings had been damaged by noise from the Grotto. He asked if any medical evidence had been received from any doctor or specialist saying that the music has aggravated anyone's condition. He questioned whether he had received any contrary measurements or engineering controls by a registered Illinois engineer. Mr. Lullo responded no to each question posed by Member Young. Chairman Davis questioned the date and day of the week of the noise complaint that was made when the Grotto was closed. Mr. Lullo responded that it was Thursday, July 14, 2011. Member Ziemer questioned the time that the DJ's stop. He also questioned whether the aerators in the pond run 24 hours. He asked if all the recommendations made by Cline & Associates had been implemented. Mr. Lullo responded that they stop at approximately 1:30 a.m. He added that on the complaint dated July 8, 2011 the officer said that when they came to the Grotto the music had already stopped for the evening. As far as the aerators, they are supposed to be on in order to control the algae, but sometimes they are not on. He personally went over all of the recommendations with Cline & Associates to ensure that they had been implemented. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 4 of 13 August 2, 2011 ,VL� Robert Mesch, 20 North Tower Road, 31d floor, questioned if the testing had been as a blind test or if the Grotto knew they were being tested. Mr. Lullo responded that they did know the test date, but that Cline & Associates would not allow anyone from Grotto management around when they were doing the testing or to be around the equipment. When the testing was done on the resident's patio, neither the resident nor Mr. Lullo was allowed on the patio. Mr. Mesch said that since the Grotto knew when the testing was being done the volume level could have been turned down and questioned whether the Member Young questioned whether the Homeowner association had hired an engineer or someone that had provided counter test measurements or testimony. Mr. Mesch responded no. Dominic Ruggerio, 3 North Tower Road, President of the Oak Brook Towers townhome and homeowner associations, in unincorporated DuPage County, said that on behalf of the homeowners he phoned and left a message for Mr. Lullo at the Grotto on Saturday evening at 11:35 p.m. He did not receive a response. He was on his patio that evening and the music was very loud. He took exception to a comment in the Cline report that some of the music was coming from Champps. He noted that the speakers at Champps are little speakers that can barely be heard at the restaurant. At no time have the members of the Plan Commission or Zoning Board made an effort to go listen to the music. It has been over 2 '/x years and they have operated without a permit and he there hasn't been any help given by the Village. They are aware they are in unincorporated DuPage County. A lot of money goes from the Towers to the businesses in the Oak Brook community. Chairman Davis addressed the comment regarding board members not going to visit the Grotto. He noted that he has been there on a couple of occasions, one being very late on the past Friday evening. The music was loud on the patio, then they drove in the car down Butterfield Road they could not hear anything. They drove through the Towers parking lot and could not hear any music at all from the Grotto, but they could hear the music coming from the Redstone. They continued down Butterfield Road, and the music that was coming from the Redstone was extremely loud. That was all they could hear on Butterfield Road was the music that was coming from the Redstone. The Village is involved and concerned about the matter and he took issue with the comment that was made. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 5 of 13 August 2, 2011 Member Young said that he was in the Towers parking lot with an octave band meter and the cicadas actually spiked the meter reading. Mr. Ruggerio said that none of that had been brought forth at the meetings. He added that several residents offered their residences for testing. Member Young said that he had a few questions and noted that considerable testimony was given regarding not getting sleep, etc., and he noted that this goes to damages, since this could ultimately go to the Illinois Pollution Control Board courts. He questioned whether anything had been presented from any doctor or specialist, citing any damages directly related to the music from the Grotto. He questioned whether there had been any structural damage done to any of the structures related to the music from the Grotto. Mr. Ruggerio responded no. He noted that from a court standpoint the applicable law would be under the DuPage County Health Dept. noise ordinance, not Oak Brook, which is enforceable. He clarified that he was not trying to insult Mr. Ruggerio. He said that if there is tangible damage, he would vote against the request. Mr. Ruggerio noted that an elderly resident testified that she had selpt on the bathroom floor and her doctor had put her on medication. He did not have the report and was not prepared to play 20 questions about health issues. Member Young asked if an engineering firm had been hired to check for cracks in the buildings or damage to windows as a direct result of the noise from the Grotto or to refute the testimony given by Cline and Associates. Mr. Ruggerio responded no. He said that he would not take homeowners money for an engineering study for something that is not their issue. He added that it has been going on for 2 '/z years without a permit and the matter keeps being deferred. Chairman Davis noted that the Grotto matter has not been before the Zoning Board for 2 '/2 years. The Board is required to hear all of the evidence and the Grotto was in the process of getting a report and making improvements to lessen the sound and it is only fair that they were given the opportunity to do that, which is why it had been continued to the present meeting. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 6 of 13 August 2, 2011 H� Mr. Ruggerio said that with all the adjustments made, it has not quelled the music. Chairman Davis responded that there may be a real question where the music is coming from and asked if thought had been given to that possibility and whether they had driven by Redstone and heard that music playing. Mr. Ruggrio responded that he had heard the music on Thursday, but not on Saturday. Chairman Davis said that it was very loud on Friday evening because he could hear it from Butterfield Road. Member Ziemer said that after the very first meeting he went to Redstone to hear what was going on, as well as to the Grotto in order to hear it for himself, firsthand. Director of Community Development Kallien said that the residents have been very patient and in Oak Brook there is a two step process that involves not only the Plan Commission, but also the Zoning Board of Appeals. Ultimately the Village Board will make the final decision. In all of his years as a planner, this has been one of the most difficult cases that he has ever had. William Lindeman, 11 Pembroke Lane commented that for almost eight months sounds levels have been discussed along with the interference from the pond in measuring the sound levels as specified in the ordinance. In his opinion the pond does not interfere with the 25 foot measurement because there is adequate space from the edge of the patio to the water. Director of Community Development Kallien explained that when it is measured fiom different locations from the edge of the patio wall to the wall it varies from 38 to 42 feet, but there is a substantial elevation change from the floor of the patio to the actual ground level, moat area with taller grasses and the actual water feature. Technically, the 25 foot measurement would be somewhere in mid -air; or 25 feet would not reach the water, and would be somewhere below the patio into the grassy area. If the sound were measured at the lower level, it would not give a reading that is being heard and expressed by the residents of the Tower. In his opinion, what is shown at the perimeter has greater bearing than what it does down below the patio. Mr. Lindeman questioned if Mr. Kallien was qualified to offer that testimony based certification in the measurement of sounds. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 7 of 13 August 2, 2011 V"- Member Young responded that there is no measurement of sound certification. Member Ziemer questioned that is was measured from the property line and questioned if that was at the edge of the patio. Director of Community Development Kallien responded that there are multiple uses on the lot. Technically the property line is at Butterfield and Meyers Road and goes to I -88. He said that he believed that there has to be some practical judgment. Mr. Lindeman said that he was disappointed that there was no attempt to determine that the elevations would impact the readings. The Code reads that is measured 25 feet from the source. He said that the source does not relate to elevation, The main factor is that the code prohibits live entertainment, and dancing. There was no request by the Grotto to approve dancing. He gave an album for Mr. Kallien to view. He believed that in this recovering economy, based upon the obvious large number of patrons as seen in the photographs, the relief requested is not appropriate and would have extensive repercussions. Member Nimry noted that some of what Mr. Lindeman noted was outside the scope of the Zoning Board of Appeals and should be brought to the Village Board. There was a brief discussion on where the sound should be measured. Director of Community Development Kallien responded that the ordinance was modeled after many other sound ordinances and states that sound is to be measured 25 feet from the sound source and/or the property line. The differentiation is that most parcels have a physical nature to them that there are not many uses placed on a single lot, similar to that of the Oakbrook Center. He was of the opinion that if the sound reading is taken from below the decibel level would be lower than what is taken at the sheet level. Sound is an energy and tends to go in straight lines, and can be deflected by physical properties. Member Young said that it is affected by physical properties such as water and vapor, because sound carries. Chairman Davis asked for comments from the board. He noted that the Zoning Board of Appeals is an advisory board with a recommendation going to the Village Board, which makes the ultimate decision. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 8 of 13 August 2, 2011 �i Member Young said that the issues fall under two items in the special use permit and whether or not they fall under the public health, safety provision and whether it would impact the value of real estate and no evidence has been provided. As to the questions he asked, they were from the interest of protecting the Village from ancillary liability and litigation. The questions were on point and needed to be asked in order to protect the Village. Member Nimry suggested that a condition that both parties pay for two studies that would be done unannounced and performed by the Village over the next 12 months. Member Cappetta said that she did not believe a condition could be attached to the residents since they are not a party to the request. Chairman Davis suggested that the condition could be included that blind studies be done. Director of Community Development Kallien said that there is not a standard in place to deal with the issue, which is part of the problem. The sound regulations are in place to measure the sound, As such, the Village could conduct a few unannounced sound tests. The village needs to create a standard by which could be measured to say whether it is over or under. Member Cappetta noted that there are parameters in place with a timeframe and decibel level, so it is not whether or not it "seems" to be loud, Looking at the police reports, where they say that it does or does not sound loud. The Village has created sound regulations that either cannot be enforced or is not enforced. She questioned whether the _police officers have the ability to test decibel levels, as to whether they are trained or have the necessary equipment. If they don't have the equipment or have not been trained, then either the ordinance or the enforcement of the ordinance needs to be fixed. The only testimony that has been received is that the Grotto is within the limits. The testimony where it is stated that it is loud or not loud is subjective and does not address the ordinance. The only hard numbers the board has is what was in the report from Cline & Associates, which states the numbers are okay with the ordinance. Because it is okay, does not necessarily mean that it is not too loud. If the numbers are not good, then something needs to be done, which would mean it would go the Village Board, to be referred back to review the ordinance. The numbers are concrete. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 9 of 13 August 2, 2011 g /1, Member Young said that DuPage County has adopted the Illinois Noise Control Ordinance from 1972. For an A regulated area, the decibel readings are between 72 to 75 decibels, which are 5 to 8 percent higher than Oak Brook's. He noted that this adds to the frustration, since the DuPage County Noise Ordinance applies to the Tower residents. He questioned which one should prevail. From an enforcement standpoint, should this be something that the police depatKment is involved in, or should it be handled by the DuPage County Sheriff's office. Should it be handled by the DuPage County Health Dept., and should the IEPA (Illinois Environmental Protection Agency) come in to do a study. The question is where the line is drawn. These are all valid ways to look at this issue. In addition, there has not been any testimony given regarding Butterfield Road, and the noise, which is an ancillary issue, as well as things like Redstone and how much noise is being generated from there. All of these things are going to contribute to the noise pattern in their building. Member Ziemer said that the ordinance has time controls, from 7 a.m. to 7 p.m. and then from 7 p.m. to 7 a.m. He questioned whether there could be another set of standards providing a middle ground, from midnight to 7 a.m., where a level of reduction should be in force, because people need to sleep. At midnight a resident may expect things to settle down a bit. There may be another level of sound reduction that may be appropriate. Member Cappetta said that was a great point, but that it may not be appropriate to make it an exception to the request. The issues should not be micromanaged and dealt with as they come up. If the 60 decibel reading is a problem with Grotto, then it is a problem everywhere. If 60 is determined to be too loud, then it is too loud. Director of Community Development Kallien said that when the sound ordinance was reviewed by the Zoning Board, it was suggested that if it was found to be deficient at the time of enforcement, then it would be fixed. Suggestions have been made by the members to make it better. He suggested that as part of the recommendation to ask that the ordinance be reviewed to make it as good, clear, concise and create expectations that everyone would understand. Member Cappetta noted that under special use conditions, she did not believe that the Grotto could be held to a different standard than what is contained and allowed in the zoning ordinance If the ordinance is wrong, then in a separate action the ordinance should be reviewed and amend and correct it. If it is then determined that different standards, time or decibels then those changes would apply to everyone in the Village, including the Grotto. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 10 of 13 August 2, 2011 ��jc. Director of Community Development Kallien said that some reasonable conditions could be attached to an approval by agreement with the applicant, such as the operational plan, as long as it does not go against the intent of the underlying Village Code. Member Nimry noted that the Grotto has already done a lot of things requested by the board as conditions, including moving the speakers. Member Young said that the decibels numbers that are currently in the Code are very consistent with the Federal Noise Control Act and the State Noise Control Act, which has been adopted by DuPage County and twelve local ordinances. The Village Code is actually quieter than the state and the county, which is a positive aspect. If the Village desires to tighten it more, that could be done later. Chairman Davis reviewed the request for the timeframe and noted that the timeframe has been eliminated in subsequent outdoor dining requests due to the climate and weather. The intent is not to permit outdoor dining year round, but rather to have the flexibility to operate at times before or after the imposed dates. Chairman Davis asked Mr. Lullo if all the recommended improvements by the consultant been implemented at the Grotto. He also asked if it had been discussed with the consultant to bring the music indoors after a certain time. Mr. Lullo responded that they have all been made and that they had never discussed bringing the music indoors. The patio is quite large which allows for a comfortable environment for the patrons. The bar area takes up half of the lounge area, and would probably only allow 20 -30 patrons indoors, due to the location and layout. Chairman Davis noted that the standards have been addressed by the applicant in the case file. Motion by Member Nimry, seconded by Member Ziemer to recommend approval of the elimination of the timeframe for the outdoor dining areas as stipulated hi special use Ordinance S -1117 for the Grotto Oak Brook, Kona Grill and McCormick and Schmick. ROLL CALL VOTE: Ayes: 5 — Members Cappetta, Nimry, Young, Ziemer and Chairman Davis Nays: 0 Absent: 1 — Member Bulin, Motion carried. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 11 of 13 August 2, 2011 �P�. Motion by Member Cappetta, seconded by Member Young to recommend approval of amending the condition in special use Ordinance S -1117 to allow live music in the .outdoor dining area of the Grotto Oak Brook, subject to the following conditions: I. That the Grotto Oak Brook be required to continue and maintain the operational plan that is in place along with the improvements that have been made with regard to the placement of speakers and volume controls as recommended by Cline & Associates. The improvements are not to be changed or altered and to continue to look for ways to improve the sound situation. 2. That the log book that is in place be maintained with any complaints logged and addressed. 3. That on occasion the Village conducts blind tests with a noise meter to ensure that the Grotto is complying with the Sound Levels as contained in Section 13 -3 -10 of the Zoning Regulations, ROLL CALL VOTE: Ayes: 5 — Members Cappetta, Nimry, Young, Ziemer and Chairman Davis Nays: 0 Absent: 1— Member Bulin. Motion cared. readdress It was also recommended that the Village Board refer a review of the Sound Regulations contained in Section 13 -3 -10 of the Zoning Regulations to the Plan Commission and Zoning Board of Appeals. As part of that review process to determine whether sound measurement readings should be taken from different locations. Chairman Davis also said that it should be noted that he was also concerned that sound was coming from other areas beside the Grotto, such as the music that had been heard coming from the Red Stone Restaurant. 5. NEW BUSINESS There was no new business to discuss. 6. OTHER BUSINESS There was no other business to discuss VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 12 of 13 August 2, 2011 -P-1- NEW BUSINESS OTHER BUSINESS ADJOURNMENT: Motion by Member Young, seconded by Member Ziemer to adjourn the meeting at 8:32 p.m. VOICE VOTE: Motion carried ATTEST: /s/ Robert Kallien, Jr. Robert Kallien Jr. Director of Community Development Secretary VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 13 of 13 August 2, 2011 ADJOURNMENT