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Minutes - 10/06/2009 - Zoning Board of AppealsMINUTES OF THE OCTOBER 6, 2009 REGULAR MEETING OF THE ZONING BOARD OF APPEALS OF THE VILLAGE OF OAK BROOK. APPROVED AS WRITTEN ON NOVEMBER 3, 2009 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 7:33 p.m. 2. ROLL CALL: Gail Polanek called the roll with the following persons PRESENT: Chairman Champ Davis, Members Jeffrey Bulin, Natalie Cappetta, Baker Nimry, Joseph Rush, Steven Young and Wayne Ziemer IN ATTENDANCE: Mark Moy, Trustee and Robert Kallien, Jr., Director of Community Development 3. APPROVAL OF MINUTES: REGULAR ZONING BOARD OF APPEALS MEETING OF SEPTEMBER 1, 2009 Motion by Member Rush, seconded by Member Ziemer to approve the minutes of the September 1, 2009 Regular Zoning Board of Appeals meeting as amended. VOICE VOTE: Motion carried. 4. UNFINISHED BUSINESS There was no unfinished business to discuss. CALL TO ORDER ROLL CALL MINUTES UNFINISHED BUSINESS S. NEW BUSINESS NEW BUSINESS A. VILLAGE OF OAK BROOK — TEXT AMENDMENT — STUDY AND VOB -TEXT AMEND - MULTI - REVIEW TO DEVELOP PROPOSED TEXT FOR MULTI - FAMILY. I✓AMILV, TOWN ASSISTED LIVING AND TOWN HOME RESIDENTIAL HOME, ASSISTED LIVING, DEVELOPMENTS RESIDENTIAL DEVELOPMENTS Director of Community Development Kallien said that the Village initiated this VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page I-oof 11 October 6, 2009 case, which is a by- product of the lengthy litigation that the Village was involved with regarding the Friary property that the DuPage Housing Authority, along with the Forest Preserve District, had worked out a way for the Housing Authority to redevelop the property or convert it to assisted living. The request was ultimately denied and the applicant's 'took their case to the federal court, which took a number of years. This past summer, federal Judge Zagel made his ruling and findings on a number of things, but the area of concern was how that decision has had an impact on the Zoning Ordinance. The Judge was very explicit in his comments and findings that the Village Zoning Regulations were lacking in the area of a district or an accommodation for multi - family, town homes, senior housing, assisted living, etc. At the present time, there are four residential zoning districts that are primarily for single- family detached housing with no accommodation for apartments, multi- family, senior housing or assisted living. The judge deten-nined that the Zoning Regulations were in essence illegal when it came to those uses. The way to remedy that illegality was to create some type of accommodation. There were several ways to accomplish that, such as to make amendments to one or more of the four residential zoning districts in order to accommodate those uses. Another option was to create a new residential zoning district, R -5, which would very explicitly provide for those type of uses. The protection that the Village would have and maintain, would be that any entity that wished to utilize the provisions of the R -5 District would be required to go through the zoning process; and would be subject to the LaSalle factors and standards required in order to approve a change in zoning. The Plan Commission had a series of meetings and recommended approval of the R -5 District. In addition to the new zoning category, several definitions would be added to the Code; and within the Zoning Regulations exists a number of references to nursing homes, homes for the aged, etc., which should be amended so that they are consistent with senior housing. Trustee Wolin asked specifically where the new district could apply. The first place was the Oak Brook Club, which is presently zoned R -1 single- family, and was annexed after it had been built and is considered to be a nonconforming use. The proposed standards were reviewed against what exists at the Oak Brook Club, including density, setbacks, structure height, uses, etc., and found that the way the R -5 District is crafted the Oak Brook Club would fully comply with the proposed regulations. In. addition, the R -5 district over time may have some applicability for some of the in -fill properties that are located outside the western edge of the commercial corridor. Chairman Davis asked whether there were other residential areas within the Village that would fall into this category. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 2 of 11 October 6, 2009 Director of Community Development Kallien said that areas exist that could have applicability; however they would be required to go through the zoning process, including public hearings and meeting the required standards. Chairman Davis questioned whether a new district could be adopted without having one in existence. Director of Community Development Kallien responded that it could. The proposal was reviewed by the Village Attorney, who did not object to anything contained in the proposal. Once the district is created, it would be up to a developer to request the zoning. Member Nimry asked if Judge Zagel would be satisfied if a specific area was designated. Director of Community Development Kallien responded that the main concern is the Village lacks the accommodation. If someone sought assisted living, there is no place in the code to accommodate that, which was one of the judge's major concerns. The dedication of this specific district addresses that. A number of properties exist in town that really has only one property for a specific zoning, such as the B -2 District, which was really designed for the Oakbrook Center. There are a number of cases where the zoning district was created for a singular type use, and this proposal is not any different. Member Rush said that once this district was in the Ordinance, a zoning change can be requested anywhere. The important thing is that it is in the Ordinance and where it is located, is secondary. Director of Community Development Kallien said that in the 1966 the Zoning Regulations actually had a reference to an R -5 District. Member Rush added that it was for apartments and was never used, so it was eventually eliminated. The members briefly discussed the minimum area for the new R -5 district. The larger the area, the more exclusive it becomes. Jeff Kennedy, 4 Oak Brook Club Drive, G -302, and President of the Oak Brook Club, Master Association, noted that he and Ed Main, 3 Oak Brook Club, D- 105, Vice - President of the Oak Brook Club, Master Association would speak on behalf of the association and the 25 plus Oak Brook Club residents present at the meeting, who represent each of the buildings and boards. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 3 of 11 October 6, 2009 They strongly supported the concept of the R -5 District and urgently requested that along with the recommendation to the Village Board, the Zoning Board include a recommendation that the Oak Brook Club, be designated as immediately qualifying as an R -5 District property. Chairman Davis swore in those that would be providing testimony. Mr. Kennedy reviewed the history of the Oak Brook Club, which was built between 1971 and 1976 in unincorporated DuPage County under very high construction standards. In 1986, they requested annexation into Oak Brook, which was unanimously annexed. However, they were brought in under the default zoning of R -1 as, single - family detached residence district for lots on two acres or more. For the 25 years that they have been in the village, as a condominium complex, as a nonconforming use. The Village went through very lengthy litigation with the DuPage Housing Authority and federal Judge Zagel found that the Village's zoning was exclusionary and discriminatory because it does not allow any multi - family development. The Judge was aware of the Oak Brook Club, as it was presented as part of the evidence in the case. However, even though the Oak Brook Club was multi - family condominiums, it was not legitimate in the Village of Oak Brook, which bothered the Judge, that it was a nonconforming use. The proposed R -5 District would promote high -end multi - family in Oak Brook as a concept, because the proposed amendment does not designate any specific area in the Village as R -5. It was his understanding that the Plan Commission recommended that if adopted, the Oak Brook Club should be designated as R -5. As a retired litigation attorney and former federal law clerk, the adoption of the R -5 District plus designating the Oak Brook Club as an R -5 District, would significantly improve the Village's posture with the federal courts. The case is currently on appeal with the Seventh Circuit Court of Appeals, although there is a good chance that Judge Zagel's opinion will be sustained, but it may go back to the district court for further rulings on remedies, etc. If the Village not only adopts the R -5 zoning, but also has an actual R -5 District, will improve the Village's posture. Mark Burke, the Property Manager for the Oak Brook Club, along with Trustee Wolin and himself looked at the proposed R -5 District and it complies with the requirements contained in the proposed ordinance in terms of density, height, setbacks, parking, etc. Ed Main, 3 Oak Brook Club, D -105, Vice - President of the Oak Brook Club Master Association explained noted that there are six residential buildings that comprise the Oak Brook Club and each building has their own homeowner VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 4 of 11 October 6, 2009 association board. From each of the boards, a delegate is sent to the Community Area Trust, which is known as the CAT board. At the last CAT board meeting it was unanimously voted to support the creation of the R -5 District and with the inclusion of the Oak Brook Club to be designated as R -5. It was unanimously supported throughout their community. Under the current zoning, if one of the five buildings or the clubhouse were to be damaged 50 percent or more by fire, tornado or whatever, they would not be able to rebuild without a change in zoning. It is a process that could take 6 to 9 months and an unlimited amount of money. The residents feel like they are illegitimate. Since the condos do not comply with the 2 -acre single family detached zoning, but the Village has classified them as single family. They would like to be officially recognized for what they are, which is a first class condominium association that fully complies with the high standards that Oak Brook has set. If the Zoning Board of Appeals did not recommend their request to the Village Board; and if the Village Board did not approve the request, the Oak Brook Club would be forced to hire an attorney, obtain a survey and expend $20- 25,000 in fees to go through the six -month process just to legitimize what they already are, which is a first class condominium that is fully compliant with the proposed R -5 district requirements. They requested that the Zoning Board of Appeals support the inclusion of the Oak Brook Club into the R -5 zoning district. Mr. Kennedy said that fiom their perspective it would be a win/win situation for the Oak Brook Club and the Village. If the ordinance is adopted and they are designated as R -5, they become legitimate because they would be zoned as a condominium, which is what they are. If the Village not only adopts the R -5 concept, but also adopts the Oak Brook Club as an R -5 District, then it does a great deal to eliminate the stigma of Judge Zagel's opinion that the zoning is discriminatory and exclusionary and therefore in violation of federal law. If the Oak Brook Club is designated as R -5, then they do not have to go through the process including the time and expense. Chairman Davis commented that the town homes and condominiums are listed as a special use in the R -5 District and not a permitted use. Mr. Kennedy said that it was his belief that a special use gives the Village more control over the development and they do not oppose it, providing that it is granted to the Oak Brook Club. Chairman Davis questioned whether that would be under the authority of the Village Board to grant the special use to the Oak Brook Club. It would seem that a separate hearing would be required. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 5 of 11 October 6, 2009 Mr. Kennedy said that they were waiting on the opinion of the Village Attorney. Director of Community Development Kallien agreed that the Village Attorney would need to answer that question. The Zoning Board of Appeals has the right to recommend to the Village Board that it be listed and adopted as a permitted use. Chairman Davis noted that it would be more compliant with Judge Zagel's opinion to be listed as a permitted use. Special uses require a proceeding that can be denied. Director of Community Development Kallien said that one of the protections that exist under the special use rules is that issues can be discussed relative to design, layout, landscaping and building elevations that cannot be discussed under a permitted use. Mr. Kennedy commented that it would be advantageous to the Village to be a special use, and in the case with the Oak Brook Club, they are well established and have existed for 28 years so they are in a different position than there would be with new construction, which would be reviewed under the requirements for a special use. Member Nimry questioned that the Village Board would be able to authorize the Oak Brook Club as the R -5 District without the need for them to go through the process. Director of Community Development Kallien said that in his experience, changing the zoning of a property happens two ways. One would be that the applicant makes the request and it goes through the normal public hearing process. However, the Village could initiate the zoning change and two Trustees who were present could make that recommendation. Member Rush agreed that making it a special use makes sense, because once it is listed as a classification in the Zoning Ordinance, it could be requested anywhere. A special use provides better controls for the Village. Chairman Davis did not disagree, but thought the permitted use would be more in keeping with Judge Zagel's opinion. An opinion has not yet been received by the Village Attorney and the Village Board can act at that time. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 6 of 11 October 6, 2009 Mr. Kennedy said that by designating the Oak Brook Club as R -5, which fully complies with the proposed text, would be an easy way for the Village to take a concrete first step towards remedying what Judge Zagel has found to be a serious violation of federal law. The Oak Brook Club has been a part of the Village for 23 years and they have been good citizens. During the court proceedings, Oak Brook Club was touted as providing multi - family in Oak Brook, but the Judge responded that it was treated as nonconforming and there was no zoning allowed for it. Chairman Davis said that Mr. Main's testimony regarding the nonconforming use and the lack of ability to rebuild is a significant reason for a change in zoning. Member Rush noted that the rezoning request had not been published and questioned how that would impact a recommendation. Director of Community Development Kallien commented that the Zoning Board of Appeals did not have the authority to rezone-property. With a written request from the Oak Brook Club to concur with the zoning change, the Village Board has a right and authority to change the zoning map, if the Village Attorney would concur. The special use would identify the ultimate layout of the Oak Brook Club and the Village Board would adopt an ordinance granting approval with the existing site plan shown. Member Nimry said that the way the Judge's request sounds, in addition to adding the R -5 district zoning in the Code, an area identified as R -5, as soon as possible, would help the Oak Brook Club residents and meet the Judge's requirement. The Director of Community Development Kallien addressed the required factors for a text amendment as follows: ■ The rationale to granting the request is that there would be a positive benefit to the public. ■ It addresses a significant glaring deficiency in the Zoning Ordinance, which is one of the primary reasons that changes are made to the Code. Changes are made to the Code to address the current litigation and to eliminate the potential for future litigation. ■ One of the goals with zoning is to eliminate through time nonconformity. By creating this district, there is an opportunity to eliminate an existing nonconformity. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 7 of 11 October 6, 2009 There was a general discussion regarding reducing the proposed minimum acreage required for the proposed R -5 District. Representatives of each building unit of the Oak Brook Club appeared in support of the proposed text amendment. No one in the audience spoke in opposition to the request. Chairman Davis noted that the Zoning Board of Appeals was in receipt of the Plan Commission unanimous recommendation in support of the text amendment. - Motion by Member Rush, seconded by Member Nimry that the applicant had addressed the required standards to recommend approval of the requested text amendments and to recommend approval of the creation of the R -5 district as proposed on pages 22 -22.b of the case file, including the definitions and changes to existing text as recommended by the Plan Commission as set forth on pages 23 -23.a of the case file. Following were additional recommendations as follows: 1. A strong recommendation was included that the Village Board grants the Oak Brook Club property the R -5 District status. ROLL CALL VOTE: Ayes: 7 — Members Bulin, Cappetta, Nimry, Rush, Young, Ziemer and Chairman Davis Nays: 0 — None. Motion Carried. 5. B. VILLAGE OF OAK BROOK — TEXT AMENDMENT — AMEND PLANNED DEVELOPMENT REGULATIONS Director of Community Development Kallien reviewed the background of the request. When the Planned Development Regulations were reviewed by the Plan Commission and Zoning Board of Appeals it was very clear through the discussion that an avenue should be created so that those that complied with all of the underlying zoning requirements could choose to opt out of those regulations and the Village Board agreed. When the ordinance was prepared there was some ambiguity on how it could be interpreted. As a result, the proposed text amendment clarifies the matter. There are benefits of the Planned Development Regulations for the developer, VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 8 of 11 October 6, 2009 VOB - TEXT AMENDMENT - AMEND PLANNED DEVELOPMENT REGULATIONS and because of that, no one may choose to just comply with the underlying zoning requirements, but the opportunity would be available to them, if they meet all of the current zoning requirements. Member Nimry asked whether Naperville and Downers Grove provided the same option. Director of Community Development Kallien confirmed that they did. Chairman Davis noted that the additional language would be required in order to give the applicant the option. The members agreed. Chairman Davis noted that the standards need not be addressed, since they were addressed at the joint meeting and this request was a housekeeping issue. No one in the audience spoke in support of or in opposition to the request. The Zoning Board of Appeals was in receipt of the Plan Commission recommendation. Motion by Member Rush, seconded by Member Young to recommend approval of the proposed text amendments to the Planned Development Regulations and to replace Section 13 -15 -5F with the following text as proposed and modified by the Plan Commission, and to include an additional clarification to the proposed text as follows (Plan Commission text is italicized and underlined, Zoning Board text has been italicized, bolded and is underlined): Section 13 -15 -2: GENERAL PROVISIONS A. Except as provided or in Section 13-15-5F, no new commercial, office, or mixed -use development construction within the Planned Development Overlay District shall be permitted except as approved as a Planned Development in accordance with this Chapter; provided, however, that a stand alone project for construction of outdoor dining facilities or for drive - through facilities will not require a Planned Development under this Chapter. Section 13 -15 -5: PROCEDURES Delete the existing 13 -15 -5F — Expedited Review, in its entirety. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 9 of 11 October 6, 2009 F. Exemptions. At the election of the applicant, the Planned Development provisions of this Chapter shall not apply to an existing development or a proposed development project that satisfies all of the underlying zoning regulations applicable to the property. In such case, the proposed development will be subject to the processes of the Village that are applicable to any new construction project. ROLL CALL VOTE: Ayes: 7 — Members Bulin, Cappetta, Nimry, Rush, Young, Ziemer and Chairman Davis Nays: 0 -- None. Motion Carried. 5. C. VILLAGE OF OAK BROOK — MAP AMENDMENT — PLANNED DEVELOPMENT OVERLAY DISTRICT Director of Community Development Kallien reviewed the background of the request. When the Planned Development Regulations were created there was a reference to the geographic area covered by the Commercial Areas Revitalization Plan. This requested amendment would allow the area to be identified on the Official Zoning Map and depicts the boundary, which is similar in concept to the Graue Mill /Gateway area. Member Bulin commented that Director of Community Development Kallien had mentioned there was a request to change -three (3) residential properties on north York Road to allow for a medical office building and proposed that the proposed overlay map include those parcels. The parcels are bounded by Yorlc Road and 1 -88 in a triangle would be a natural inclusion since it is a problematic parcel. Director of Community Development Kallien noted that the change would not rezone the property. Chairman Davis agreed that it was a difficult site. The members agreed. Director of Community Development Kallien noted that there was a case to rezone the property and to build a medical office, but it was applied and planned for long before the adoption of the Plamied Development Regulations and as such the request has followed the old process. If the proposal is not approved, then any future proposed development would be able to utilize the Planned Development Regulations. VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 10 of 11 October 6, 2009 VOB - MAP AMENDMENT PLANNED DEVELOPMENT OVERLAY DIST Chairman Davis clarified that adding the parcels to the overlay district would not impede with the applicant's present progress. Director of Community Development Kallien agreed. No one in the audience spoke in support of or in opposition to the request. The Zoning Board of Appeals was in receipt of the Plan Commission recommendation. Motion by Member Bulin, seconded by Member Nimry to recommend approval of the proposed map amendment to identify the Planned Development Overly District as proposed and to also include the three (3) parcels of property located at York Road, north of the I -88 Toll Road, commonly known as 1800, 1802 and1806 York Road. ROLL CALL VOTE: Ayes: 7 — Members Bulin, Cappetta, Nimry, Rush, Young, Ziemer and Chairman Davis Nays: 0 — None. Motion Carried. 6. OTHER BUSINESS Director of Community Development Kallien provided an overview of the upcoming agenda items. There was no other business to discuss. 7. ADJOURNMENT: Motion by Member Young, seconded by Member Ziemer to adjourn the meeting at 8:44 p.m. VOICE VOTE: Motion carried ATTEST: Robert Kallien, D' ector of Co unity Development Secretary ` VILLAGE OF OAK BROOK Zoning Board of Appeals Minutes Page 11 of 11 October 6, 2009 1; OT14ER BUSINESS ADJOURNMENT