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Plan Commission Minutes

DECEMBER 6, 2016

Chairman Mike Brackett called the meeting to order.

In attendance: Chairman Mike Brackett, Co-chairman Jennifer Duncan, Plan Commissioners Mark Bozik, Doug Botkin, Connie Holbrook, Anna Tuohy, Mark Rivecco. Not in attendance: Commissioner Tom Lenkart.

Aaron Anderson was not present as an acting member of the Plan Commission but was in the audience due to his part as the petitioner for the first item in the public hearing.

1. Approval of Plan Commission Minutes dated September 6, 2016
Motion for approval made by Commissioner Tuohy and seconded by Commissioner Holbrook. All in favor. Motion approved.

Chairman Brackett opened the public hearing. Those who planned to speak at the hearing were sworn in at this time.

1. Petition #16-10: The petitioner is requesting a variance to allow a reduced side yard
setback for an accessory structure in the E-3 Estate Standard District, pursuant to Chapter 12 of the North Aurora Zoning Ordinance
Community & Economic Development Director Mike Toth stated that the meeting packet provided a copy of the neighborhood feedback from the last public hearing. Toth had compiled the emails of those residents who were in support of as well as against the building of the playset in its current location.

Bill, a member of the Board of Directors of Lake Run Estates and next door neighbor to the Anderson family, said that he learned of Aaron Anderson’s plans to build a 2-story structure playset as a result of the posting and Anderson’s requesting approval with the board of directors. Bill said that Anderson had not sought his input or asked how it would impact his home or affect his view. Photos were submitted to the Board showing the structure in the yard. The Board of Directors had previously indicated to Mr. Anderson that the structure was in violation of the code due to setbacks. Bill noted that he recused himself from the Board as a voting member on this issue. Anderson was informed that building the structure which encroached into the easement was in violation and Anderson proceeded to construct the 2-story playset. Code allows very large structures (the playset is 10x12x15). Bill encouraged the Plan Commission to set limits on the size of these structures. He also stated that one should not knowingly violate code and rules and shouldn’t impact the value of another person’s house. Bill said that due to the location and the look of this structure, it will have an impact on the value of my home. Bill requested the Plan Commission deny the variance as a result of the setback code violation.

Bill mentioned that he wanted to correct a misstatement in the fact finding section of the information provided at this hearing. Bill noted that Anderson had suggested that there was not routine regulation or correspondence from the Board. Bill noted the following:

-On June 9th, the Board of Directors indicated that the request for the playset was denied because it was in violation of code.
-On July 13, Anderson was notified again that the original denial stands because it was still in violation.
-On August 12, Anderson was notified by Baum Management Company that the playset was denied.
-On August 30, the Board of Directors said that their position had not changed and that the plans were denied.

Larry Lapp, 318 Lake Run Lane, North Aurora, IL – Lapp said he has lived in a lot of different communities and that this particular association, in his opinion is one sided. Lapp said he is behind the Anderson family. It’s a small neighborhood and there is no park. Lapp said that he thought the Anderson’s went out of their way to make sure the playset would not be in the middle of the yard. Lapp added that this playset will not take property values down.

Aaron Anderson, 341 Western Drive, North Aurora, IL – Anderson informed the Plan Commission that he began this project under the assumption that it was okay. The location of the playset was chosen strictly so that he could try and seclude it as much as possible and bring it out of the view of as many neighbors as possible. Anderson noted that when he was made aware that he was in the easement, he had already begun the project. Anderson said when he spoke with Mike Toth and Steve Bosco regarding options, there were two: pursuing a text amendment to the village zoning ordinance or requesting a variance solely for his lot. Anderson requested a variance be allowed for the 20 inches to the lot line. Anderson mentioned that there are several playsets in the neighborhood and in the village that encroach on these easements and the HOA has consistently not held people to the same standard. Anderson said he has had a number of neighbors who said they were okay with the playset. The total height of the structure will not exceed the village’s maximum height of 15 feet.

There were no further audience comments and Chairman Brackett closed the public hearing for this item.

2. Petition #16-09: The petitioner is requesting a variance from Section 15.48.080 of
the North Aurora Sign Ordinance to increase the allowable size of a Class 5 Temporary Sign

Toth noted that Staff would no longer provide recommendations in staff reports for variances. Instead, will want the committee and boards to make those decisions. Toth said that the discussions from tonight’s 2 items will be at the December 19th COW meeting for discussion.

1. Petition #16-10: The petitioner is requesting a variance to allow a reduced side yard
setback for an accessory structure in the E-3 Estate Standard District, pursuant to Chapter 12 of the North Aurora Zoning Ordinance

Mike Toth said that the Village does not require permits for constructing playsets. The structure has been referred to as an accessory building due to its size. In regard to the area of the structure, it cannot be more than 10% of the zoning lot and cannot exceed the square footage of the actual principle structure itself. In regard to location, it cannot be located in an easement. The subject property has a 5-foot easement along the northern property line and a 10-foot easement along the eastern side. This structure is in violation of encroaching the easement. Toth said that accessory buildings can be 5 feet off the rear yard. Playhouses have to be 10 feet off the rear yard. The petitioner’s structure is placed on piers and bolts so it will allow for passage of water. The structure is located 2-1/2 feet from the northern property line which is 2-1/2 feet less than the required 5 foot variance. There are two variances requested. One for the setback variance on the north property line and the easement provisions. The structure is currently 9-1/2 feet off the rear property line and two and a half feet off the north property line.

Commissioner Rivecco asked if there was a specific reason or if it was a choice that the structure was placed 2-1/2 feet off the property line. Anderson said he has some landscaping that he was trying to work around and that there is a tree to the south. R

Commissioner Tuohy said that Anderson had mentioned a 20-inch difference but Toth had stated a 2-1/2 foot difference. Tuohy asked for clarification as to the correct distance difference. Toth said it is hard to measure since there is a fence, but would probably go with the more restrictive of the two.

Commissioner Duncan said that in reference to public safety, the building inspector has been on site and had no concerns. It was not subject to permitting, right? Aaron said that was correct. The Board of Directors asked the management company to contact the village due to safety concerns of the structure. Anderson asked the building inspector at that time if he saw anything of concern. The building inspector did not find any issue with the integrity of the structure.

Toth said there is no protocol or building inspection for playsets. The Village was notified, went out there, asked the petitioner to stop construction which he did but there were some elements he needed to shore up before a child was to play on it. The actual zoning ordinance provides a definition for a shed and an accessory structure, but not a playhouse.

Commissioner Botkin said he did not have any issue with the safety of the structure but more concerned with the timeline. Mr. Anderson was informed several times that this was going to be in violation of the ordinance prior to construction. Toth said yes. Anderson said that before any of those discussions were had, he had started digging for the pillars. After submitting the plans to the HOA, was told about the violation. Botkin said he was concerned about the optics and the way it looks to others. There was someone from the Plan Commission asking for a variance for a project knowing that he was in violation. The Plan Commission should be fully aware of the rules.
Commissioner Bozik asked about how deep the concrete pillars are. Anderson said 3 feet. Bozik said he was in agreement with Commissioner Botkin. Botkin asked, at the point you were in violation, how far were you with the construction?” Anderson said not very far. Bozik asked how long it was from the point Anderson realized he was in violation to when the village came out. Anderson said about 4 weeks.

Bozik noted to Staff that there is a broad definition of a playset and are throwing it under the auspices of an auxiliary structure. Bozik asked, if this was a shed or had a garage door on it, would it require a permit? Toth said yes. Bozik said we are playing with the wording because we are calling this a play structure even though in terms of square footage, it is larger than some of the sheds being built and we put a foundation under it on pillars, similar to if we were building a deck. Toth said we have had people put them in trees or on elevated stilts. The goal is not to permit these, however, may be different after this case. Bozik said if Aaron moves out and the next homeowner moves in, all of a sudden it is not a playset and they store mowers and chemicals. How would that be regulated? Toth said that the Village can put a condition in there that is tied to the property owner or can only be used as a playhouse. Bozik said that once it is up it is difficult to regulate. Bozik agreed with Commissioner Botkin, adding that as a public official, whether appointed or elected, you are held to a higher standard. From the village standpoint, whether calling it a playset or accessory structure, something of this size and magnitude should have been regulated. During that process the violation would have been caught. After tonight, as need to go back and revisit this and have a strict definition of a play structure. Bozik said that there were failures on our ordinances and failure on the part of Anderson as to how it was handled.

Village Administrator Steve Bosco recommended looking at the size of accessory structures and at other towns on how they regulate these. Staff will then come back with suggestions. Commissioner Duncan said that was fine, however this is not the issue. What is at issue is the size of the actual easement. Bozik said the issue is the easement and if the variance would or would not be allowable.

Commissioner Holbrook asked if there have been any other variances where the village has allowed for encroachment on easements. Commissioner Duncan said we have not allowed this in the past.

Atty. Drendel said the standards are in the application itself and needs to be reviewed to guide the discussion.

Commissioner Duncan said that there is no hardship. Adding the question of why this would be allowed to sit where no one else’s would be. Duncan said it is not a good enough reason for a variance or for not following the rules.

Commissioner Bozik said looking at the findings of fact, there are several facts that have not been met. Bozik said he did not see significant evidence submitted for a reason to pursue or give a variance.

Commissioner Botkin said he agreed with what had already been said, especially in terms of hardship.

Commissioner Holbrook also said she had agreed with what was already mentioned.

Commissioner Duncan said she is sympathetic but that it is a variance that does not solve the problem. It makes it worse for everyone else in the community if this were to be allowed which is not what variances are meant to be.

Commissioner Tuohy said she doesn’t see a hardship, but even if Anderson were to follow the variances, it would be even more of an eyesore than it already is. However, does not see the hardship.

Commissioner Rivecco said that the Village has yard setbacks and easements for valid reasons. In the past, we have not wanted to allow encroachments in the easements and do not want to set a precedent with this one.

Chairman Brackett said if the playset is moved 20 or 30 inches, it doesn’t solve the problem.
Commissioner Holbrook said if we allow this, then someone else can come along and ask the same thing.

Bozik said that the Plan Commission’s position is not to determine if this is aesthetically pleasing to the neighborhood, but if it is encroaching into the easement and if it is a violation.

Duncan said there is not a single finding of fact that makes this a unique situation that couldn’t have been done differently and stayed within the rules. The petitioner had knowledge and had information. There is a violation regardless.

Anderson said this is about the specifics of his yard and where he chose to put the playset for a number of reasons. The setback requirement is an arbitrary number. The setback requirement in North Aurora is 5 feet. When the Plan Commission created a text amendment they could have easily made a recommendation to make the setback three feet. Anderson said his playset is in violation and therefore requesting a variance.

Bill from Lake Run Estates said that the Board of Directors mentioned that if a variance was granted, they would then approve the application.

Findings of Fact
1. No variation shall be granted unless the applicant shall establish that carrying out the strict letter of the provisions of this ordinance would create a practical difficulty or a particular hardship. Roll Call Vote: Rivecco – no, Duncan – no, Tuohy – yes, Holbrook – yes, Botkin – no, Bozik – no. (No – 4, Yes – 2)

2. The subject property is exceptional as compared to other properties subject to the same provisions by means of a unique physical condition. Roll Call Vote: Bozik – no, Botkin – no, Holbrook – no, Duncan – no, Tuohy – no, Rivecco – no. (No – 6, Yes – 0)

3. The aforesaid unique physical condition is not the result of any action or inaction of the property owner or his or her predecessors in title, and it existed at the time of enactment of the provisions from which a variation is sought, was created by natural forces or was the result of governmental action other than the adoption of this ordinance. Roll Call Vote: Tuohy – no, Duncan – no, Holbrook – no, Bozik – no, Botkin – no, Rivecco – no. (No – 6, Yes – 0).

4. The carrying out of the strict letter of the provision(s) from which a variation is sought would deprive the owner of the subject property of substantial rights commonly enjoyed by other properties subject to the same ordinance. Roll Call Vote: Duncan – no, Holbrook – no, Botkin – yes, Bozik – no, Rivecco – no, Tuohy – yes. (No – 4, Yes – 2).

5. The alleged hardship or difficulty is neither merely the inability of the owner or occupants to enjoy some special privilege or additional right not available to owners or occupants of other lots or properties subject to the same provisions nor merely the ability of the owner to gain a greater financial return from the use of the subject property. Roll Call Vote: Holbrook – yes, Botkin – yes, Bozik – yes, Rivecco – yes, Tuohy – yes, Duncan – yes. (Yes – 6, No – 0).

6. The variation would not result in a use or development of the subject property that would not be in harmony with the general and specific purposes of this ordinance, including the provision from which a variation is sought or the general purpose or intent of the Comprehensive Plan.
Roll Call Vote: Botkin – yes, Bozik – no, Rivecco – yes, Tuohy – yes, Duncan – yes, Holbrook – yes. (Yes – 5, No – 1).

7. There is no means other than granting the variation by which the hardship or difficulty can be avoided or remedied to a degree sufficient to permit a legal and reasonable use of the subject property. Roll Call Vote: Bozik – no, Rivecco – no, Tuohy – no, Duncan – yes, Holbrook – no, Botkin – no. (No – 5, Yes – 1),

8. The variation is the minimum measure of relief necessary to alleviate the hardship or difficulty presented by the strict applicant of the ordinance. Roll Call Vote: Rivecco – no, Tuohy-yes, Duncan–yes, Holbrook – yes, Botkin – yes, Bozik – yes. (Yes – 5, No – 1).

9. The granting of the variation will not be detrimental to the public welfare or injurious to other property or improvement in the neighborhood in which the property is located. Roll Call Vote: Tuohy – yes, Duncan –yes, Holbrook – yes, Botkin – yes, Bozik – yes, Rivecco – yes. (Yes – 6, No – 0).

10. The variation will not produce excessive noise or odor to be detrimental to the health and welfare of the public welfare, or which interferes unreasonably with the comfort of the public.
Holbrook – yes, Botkin – yes, Bozik – yes, Rivecco – yes, Tuohy – yes, Duncan – yes. (Yes – 6, No – 0).

Atty. Drendel stated that the way case law reads, you have to find favorably on each factor for approval of a variance. Duncan said there are at least four the plan commission does not approve. Drendel said that is the case law and is what should govern. The primary factors are what has developed over many years over cases. The case law ones are the hardship, unusual physical conditions, not self-created and conformance with ordinance and planned purposes.

Motion made by Commissioner Holbrook and seconded by Commissioner Tuohy to approve the variance with the requirement that should this property be sold, the variance is no longer in effect and if there is a new owner the structure would remain a playset. The Motion also included the two conditions that it cannot impede the storm water drainage and does not diminish the rights of the underlying utility companies to access the easement. Roll Call Vote: Bozik – no, Botkin – no, Duncan – no, Holbrook – yes, Tuohy – yes, Rivecco – no. Motion failed.

Botkin said that since the Plan Commission found unfavorably on at least 4 of the 11 cases, moved to deny the application for variance. Seconded by Commissioner Duncan. Roll Call Vote: Tuohy – yes, Duncan – yes, Holbrook – yes, Rivecco – yes, Bozik – yes, Botkin – yes. (Yes – 6, No – 0). Motion for denial of the variance. The item will move forward for discussion with the Village Board.

Chairman Brackett opened the public hearing for a Variance for a sign for Liberty Development

2. Petition #16-09: The petitioner is requesting a variance from Section 15.48.080 of
the North Aurora Sign Ordinance to increase the allowable size of a Class 5 Temporary Sign
Adam Bray of Liberty Development addressed the Plan Commission requesting a variance to increase the allowable size of a class 5 temporary sign. The proposed sign would be 10×20 (Two signs with each sign having 200 s.f. in a v-shaped pattern adjacent to I-88. Location of business is at 400 Mitchell Road, North Aurora, IL 60542.

Motion for approval made by Commissioner Bozik and seconded by Commissioner Duncan. Roll Call Vote: Bozik – yes, Botkin – yes, Duncan – yes, Tuohy – yes, Rivecco – yes, Holbrook – yes. Motion approved (6-0).

3. Village staff would like to solicit feedback from the Plan Commission regarding text
amendments relative to the number of parking spaces required for Food Stores
Currently the North Aurora Zoning Ordinance requires 5 spaces per 1000 s.f. of gross floor area for food stores and 4 spaces per 1000 s.f. for general retail. Staff said that by reducing the required amount of parking for food stores will allow a greater emphasis on open space and less on impervious surfaces. The Plan Commission was in favor of the suggestions by Staff.



Motion to adjourn made by Commissioner Bozik and seconded by Commissioner Botkin. All in favor. Motion approved.

Respectfully Submitted,

Lori J. Murray
Village Clerk


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