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Committee of the Whole Minutes

DECEMBER 7, 2020

Due to the COVID-19 pandemic, the Village Board meeting was conducted live remotely
via telecommunications.

Mayor Berman called the meeting to order.

In attendance: Mayor Dale Berman, Trustee Mark Gaffino, Trustee Laura Curtis, Trustee Mike Lowery, Trustee Mark Guethle, Trustee Mark Carroll, Trustee Martinez.

Staff in attendance: Village Administrator Steve Bosco, Finance Director Bill Hannah, Community & Economic Development Director Mike Toth, Village Attorney Kevin Drendel, Public Works Director John Laskowski, Police Chief Dave Fisher.


Mayor Berman announced that audience comments would take place following the presentation on the presented items and the Board’s discussion. He asked that comments be kept to three minutes and said he was aware of the interest in the subject, but requested that in the interest of time that repetitions of the same comments were kept to a minimum.

Village Administrator Steve Bosco explained that Village Attorney Kevin Drendel would present an overview of the two items being discussed prior to the Board discussion, which he noted were distinctly different although both related to Moose Lake Estates, and also noted that no vote was being taken at a Committee of the Whole meeting and this was for discussion purposes only tonight.

Village Attorney Drendel gave an overview of the history of Moose Lake Estates and its development. The original annexation agreement was approved in 2003 and included a preliminary plat and plan, which was incorporated as part of the zoning, being E-3 estate residential, and subdivision deviations and zoning deviations were part of the PUD (planned unit development). The 1990 zoning code was what applied at the time and PUDs were not required for single family projects and are not required under the current 2013 building code either. The preliminary plat for Moose Lake Estates was approved in 2003 and the plat lays out the parameters of the lots, streets and easements for both units 1, 2 and 3. The preliminary plan includes those same lots with further details like landscaping and streets, which all together become part of the PUD.

Attorney Drendel again noted that PUDs are not required for single-family homes, but said at the time Moose Lake Estates requested one as they wanted to have deviations in the subdivision code as well as to underlying zoning to allow for staggered setbacks and variations. The PUD did not incorporate architectural design standards, building elevations or a minimum house size. To that, the PUD was “silent” on those items. The PUD was coded for E-3 zoning, which is a transition from less dense to more dense and E-3 zoning looks at lot size as well as setbacks, but the zoning code does not impose design standards.
Attorney Drendel said no one anticipated in 2003 what was to come with the beginning of the housing recession. The original developer, Gladstone, approached the Village in 2008 as they were required to have completed all public improvements for the subdivision but unit 3 was not yet built out and units 1 and 2 were not completed. The Village provided a three-year extension. In three years though not much had changed with the economy and the Village and Gladstone agreed to suspend their requirement to build out the public improvements, but that suspension was on the condition of vacating the plat. Part of the reason for that, Drendel explained, is once a plat is approved the ordinances provide a certain amount of time for the subdivision to be built out alongside public improvements. The idea was that rerecording the plat would trigger the need to complete those public improvements. Gladstone was required to replant and grade unit 3 lots to help with erosion control and that is where the subdivision has remained until today.

Attorney Drendel said there were two items being brought before the Board for discussion tonight. The first is a request to approve the plat for rerecording and that the new developer, M/I Homes, has not asked for any changes. The only changes in the plat were ones submitted by Village engineers regarding easements on two lots, but otherwise the plat they are asked to be rerecorded is the same one that was originally expected to be rerecorded in 2011. Attorney Drendel said M/I Homes has taken the position that the Village has no discretion to refuse to approve the plat as there are no deviations save for ones the Village requested. He also said some discussions of PUD had been brought to his attention and said he believed there some misunderstandings on how the PUD applies and said provisions, purposes and standards in the 1990 code are prospective in application and that the code is designed to guide review processes and decision making and set parameters so the Village can create the PUD. When the PUD is silent on items then the default rules of the underlying zoning take place.

The second item is the amendment to the annexation agreement, which is seeking to confirm obligations that already exist and to lock in building permit fees for the next five years. As part of the annexation agreement, M/I Homes has agreed to concessions to not build homes less than 1,900 square feet and they would not build any one-story ranch models next to already existing homes, and they also offered to complete the public improvements that otherwise the Village would be obligated to do so. The Village does not have to approve the annexation agreement and Attorney Drendel said M/I Homes has no right to demand the Village approves it.

Attorney Drendel concluded his presentation.

1. Moose Lake Estates Subdivision Unit III Plat

Community & Economic Development Director Mike Toth explained that unit 3 has 36 lots and is centrally located and when the plat was submitted they checked the underlying zoning and all was confirmed and noted that the previously approved unit 3 plat was identical to the one before the board now save for the easement changes Village engineers had requested. He said that M/I Homes can build in units 1 and 2 as they are now, but need the plat approval for unit 3.
Trustee Curtis asked that if the Board did not grant approval did that mean the lots are unbuildable for this developer and Trustee Carroll asked for clarification on Attorney Drendel’s comment about the developer taking the position that the Board did not have discretion to deny the plat and if the Village did in fact have such discretion. Attorney Drendel explained that in pushing this answer to the extreme if 50 years were to go by and a developer came in wanting to rerecord the plat that because of the passage of time there may be some kind of discretion to exercise; but in this case it has only been eight years and asked the question on what basis would the Village deny it, given the fact it is the same document that the Village had originally expected to re-record in the future. Trustee Martinez asked for some clarification onto the years noted in the example, and Attorney Drendel said the question came to if there was anything that’s changed in the last eight years that would warrant refusal to approve the plat in re-recording. Right now he said anyone could come in and build single family homes in units 1 and 2 provided they complied with the rules in place.
Trustee Lowery said the basis for denying the request would be the complaints of the residents that live there and that elect the trustees to represent them. He said his heart went out to all those affected in this process. Attorney Drendel said the concern for the residents was well taken, but said the platting process is a subdivision process, not zoning, and no one has brought up to re-examine zoning, which had that been the case would have allowed the Village to raise issues of the PUD. But he said he did not see the Village having the authority to open up the zoning provisions now and add new requirements.
Trustee Martinez asked about the Homeowner’s Association (HOA) having rules, which Trustee Curtis also followed up with to see if the HOA would be able to create façade requirements and minimum square footage. She added that the Village Board has no control over what a HOA can do, but if they came up with minimum standards than those would need to be respected in the guidelines. Attorney Drendel said it depends on how the HOA covenant reads and that theoretically as a general proposition that yes, that would apply.
Trustee Curtis said given that and that by approving the annexation agreement to provide some minimum standards, she would like to see if there was some way the HOA could regroup and take charge of what they would like to see for the standards. Mayor Berman asked when the HOA would have the power to do that, as initially when the subdivision is set up the developer has control that is later turned over to the HOA. Trustee Lowery asked if there was a compromise that Village Staff could look into with the builder on at least the aesthetic appearance to which Mayor Berman had said Staff had already done so but the only concessions M/I Homes were willing to pursue were the previously mentioned ones of no homes smaller than 1,900 square feet and no ranch homes next to existing homes. Trustee Curtis said again that she thinks the Board needs to step back and see what the HOA can do and proceed from there.
2. Moose Lake Estates Subdivision Third Amendment to Annexation Agreement

Director Toth once more explained that the Village was not required to approve the amendment to the annexation agreement and that it was looking to reaffirm items that had already been approved as well as seeking a lock on building permit fees for the next five years – which Director Toth added the Village hasn’t raised fees in some time and doesn’t see a change in the horizon so that may be a moot point – and also agreeing to finish the public improvements and the concessions noted above. He added that the buyer is looking to close by the end of the year.

Trustee Carroll said the Village has discretion with the annexation agreement but does not have such with the plat and noted that he does not want the Village to end up in court. He said the Village has to look at its own wellbeing and that this does not just impact Moose Lake residents as if the Village is sued by the developer for refusing to approve the plat it will cost all of North Aurora’s taxpayers, and that the direction of the design of the homes is out of the Village’s control. He brought up the idea of possible additional concessions the Village could offer, like building permit fees, to encourage the builder to enhance the facades.

Administrator Bosco said Staff had reached out to M/I Homes to discuss lowering Village impact fees if they would consider making the homes more appealing, but the buyer was not interested in the proposal. Trustee Martinez said he felt that the builder was trying to cash out on the fact earlier residents built 4,000 square foot homes and they were now trying to build half of that size and does not agree with the builder’s position and feels it is unfair for current homeowners.

Mayor Berman said there were no questions about the legalities of the E-3 zoning and that the Village is required to approve the plat for unit 3 and that the developer can move ahead with building in units 1 and 2 regardless of it. He said if the Village approved the amendment to the annexation agreement there would at least be those concessions provided. He said the Village’s hands were tied and said if the HOA had the ability to make things different then that was good for them. He said the best the Village could do was get some concessions by approving the annexation amendment.

The meeting was then opened for audience comments.

Pablo Hernandez, 536 North Sycamore – deferred his comment to Vince Tessitore but noted he would like to speak later in the meeting.

Vince Tessitore, 394 Pheasant Hill Drive – said that in regards to the original PUD provisions applying to Moose Lake Estates that there is a section that notes the Village has to approve architectural standards as section 5.4M prohibits physical features that would negatively affect a neighborhood and that at the time the neighborhood would have had Gladstone’s physical features. He said the physical features M/I is proposing are not Gladstone features and that they fall well short of Gladstone’s features. He said the village should deny any building permits M/I Homes submits because the approval in 2003 only allowed physical features presented at the time and it was not a blanket approval. He said that the architectural structures approved at that time cannot be violated and that M/I Homes is violating it and as such all building permits they submit should be denied.

Kenneth Olson, 406 Mallard Point Drive – said he heard different provisions for one owner vs. multiple owners and wanted to know why this was not a consideration of multiple owners. He said there was now a second owner coming in with a far inferior product. He also said the question was asked was what had changed in eight years and said drastic things have, including Gladstone not able to develop any of the property. Said this PUD was silent on standards so that was important to bring into the discussion. If there was no minimum housing standards because it was silent before then it is now the trustees’ role to correct it. He said Gladstone maintained control of the HOA for an extended period due to how slow the development went. He mentioned that there was consideration as to what this would cost the taxpayers if there was a lawsuit and questioned what this decision would cost the Village in PR and said he would not take this standing down. Asked the Village to deny the request without a minimum build standard.

Scott Barenbrugger, M/I Homes – introduced M/I Home’s attorney Vince Rosanova, who he said would speak to clear up some misinformation on the facts of M/I Homes’ proposal.

Vince Rosanova, M/I Homes – he said he first wanted to address the item of if the Village had discretion to deny approval of the plat for unit 3. He said from their perspective they reviewed the original annexation agreement between the developer/owner and the Village and that the Village must approve plats that are in substantial conformance. Not only was the plat they provided in substantial conformance, but it was a mirror image. He said the Village is not only required to approve the final plat if it meets all Village codes, which it does, but that there’s an annexation agreement and its second amendment that grants those contract rights.

He said M/I homes did not agree in the approach to delay approval of the plat to give time to amend covenants and said that covenants don’t allow for homeowners to amend them to the detriment of the developer and said even if that time was granted it would not be effective. He said while M/I Homes would be willing to enter into the annexation agreement that would see them complete the public improvements, that is to the discretion of the Village. In regards to the comments made by Vince Tessitore about the PUD zoning he said that was inconsistent with Illinois law and that elements of a PUD are determined at initial approval and relate to the E-3 zoning. He said the claim that if homes are not large enough or costly enough that they violate the PUD is untrue. He asked the Board to speak after other testimony was heard to provide a chance for rebuttal.

Pablo Hernandez, 536 North Sycamore – said that if the plat was approved he didn’t believe homeowners would have 75% of voting rights to approve any changes that would have any impact but as the plat currently sits homeowners do have the ability to make changes. He said he does not think it is fair to the Village or residents that M/I Homes is trying to rush the Village into a decision and said the Village has until 2023 to approve the plat and shouldn’t rush just because M/I Homes has a deadline on their end. He said M/I’s comments that they could come in to build 800 square foot homes sounds like strong arming and doesn’t feel that anyone should be put into that position. Said that the developer can submit proposals as much as they want but that it does not fit into what the Village ordinance states and will hurt the land and buildings.

Katie and Sean Ferguson, 503 Prairie Ridge Lane – moved into Moose Lake Estates in October 2019 and said what M/I is proposing is going to create a divided neighborhood, which was a reason they did not move to an establishment in Plainfield. Said the decision would devalue homes and might possibly divide us and make for very uninviting homes. Questioned why M/I Homes cannot bring their better quality homes to Moose Lake Estates.

Mike Herlihy, 445 Sycamore Lane (HOA Board Member) – said that the original Gladstone development had a very positive impact and shifted diversity. As a former Village board member he said they did not require to codify square footage and said during discussions then they and developers felt that the lot size would drive content and that it was rare for a municipality to codify square footage or architectural features. Said the smaller homes coming in that M/I was proposing would affect the home values and then that assessed value would affect the Village’s tax base and that making a decision now would lead to a more difficult situation. He also noted that the scope of the HOA is to manage the public space in a community and they have limitations.

Valerie Shoger, 1473 Hearthstone Lane – lives in Windstone Place was wanted to support the residents who live in Moose Lake Estates. Said that having these proposed smaller homes go into the beautiful subdivision is not what North Aurora needs. She said that North Aurora has a very diverse community with housing for all different types of incomes and emphasized that Moose Lake Estates are estate homes. Said she was disappointed to hear the builder’s attorney basically threaten the Village and asked the Village to take their time in making a final decision. Mayor Berman spoke and said the entire board loves North Aurora as much as she did and love every part of it and they are trying to do their best. He added he did not feel that the attorney was threatening but telling it like it was.

Derek Dortch, 415 Prairie Ridge Lane – said he moved into Moose Lake Estates in July 2020 and had some confusion as to whether this was a HOA or a Village Board meeting. After clarification he said he felt that M/I Homes was trying to strong arm them and had questions regarding the authority of who approved the building of homes.

Village Attorney Drendel spoke to Mr. Dortch’s questions that the Village has limited authority over property in the Village and that authority is exercised through zoning and subdivision. The power the Village has is setting minimums in which people need to operate, but it does not dictate what someone needs to do on their property and that Village zoning does not trump property rights. He said when Gladstone came in they had a grand vision and got the annexation agreement approved and it established parameters, but those parameters are limited. If everything had gone according to plan then Gladstone would have finished the subdivision several years ago, but no one could have foreseen the economic downturn that occurred. He said in hindsight knowing what the future would bring they perhaps could have set in place minimum standards, but that most zoning codes establish maximums, not minimums, and specify the size of the lot and not the building. He said the residents’ concerns are recognized. Noted that units 1 and 2 of Moose Lake Estates are not on the table for discussion today and those lots can be built on within the existing parameters and that Gladstone could sell those lots to M/I Homes or another developer to build on a lot or two or three and the Village cannot change those parameters.

Thomas Pierre, 533 Sycamore Lane – said the community is something they cherish and want to uphold and said if this was the right thing being done he didn’t think there would be an issue. But it comes down to the fact residents felt like they found the pot of gold at the end of a rainbow in Moose Lake Estates and that they can do better than what is being proposed. Said there were enough people involved to figure this out and keep what was planned back in 2003.

Vince Rosanova, M/I Homes – he said that M/I homes is not attempting to rush anything and it has been a fairly long process already. He said the comment regarding the Village having until 2023 under the current annexation agreement in place is a misinterpretation and that while it expires in 2023 the Village can’t wait three years to approve a plat. He said they were not trying to strong arm anyone and said the examples he gave of the 800 square foot home sizes were meant to show an example of what could be built on those lots. He noted M/I Homes reached out to the HOA and agreed to voluntary restrictions. He said he does not believe that adding 68 single family homes will devalue any homes. He said he knew there was fear someone would propose apartments or townhomes and that is not the case here. These would be single family homes that would only be 27% of the neighborhood and the idea that they would create a divided neighborhood is inaccurate as they are going to complete a neighborhood that has been unfinished for over 10 years. He said M/I Homes believes in their homes and believes they will have a positive impact and will continue to work with homeowners as they proceed forward.

Brian LoCicero, 466 Pheasant Hill Drive – said he felt it was important to bring up the HOA laws given trustees referencing them and that the HOA did not have recourse as since the developer has 27% of the units the developer still maintains control. He said they feel very hamstrung. He said he hears everyone saying their hands are tied. He said the builders always say that requests could be options and are ‘we might’ or ‘we could.’ Asked the builder to think this through.

Rebecca Hernandez, 536 Mallard Point Drive – said she wanted to correct Attorney Drendel to his comment that communities do not set minimum standards. Said Aurora, Illinois has wording for their estate zoning that no family dwelling is to be less than 3,500 square feet. She said Attorney Drendel was adamant that wording was not used and yet it is so common it is right next door.


Village Administrator Bosco asked for direction from the Board and Mayor Berman asked each trustee to speak one by one.

Trustee Curtis said it was two separate issues that aren’t directly correlated to the product the builder wants to build. She said the Board’s hands are tied and would like to see what the HOA can do to remedy this in some way to work with the builder to incorporate more conformity. She said the builder was going to build whether or not they voted this through and said she thought they should approve the annexation agreement incorporating the minimum standards as it provided some measure of protection and was the lesser of two evils. She said she was therefore in favor of approving the vote.

Trustee Carroll said he felt the items had to be brought to a vote and that he didn’t feel the Board could delay it. He said he was torn as he respects the citizens comments and concerns also respects the builders trying to make an improvement to an incomplete subdivision. Said he would love to see the builder make a concession of 2,500 square feet. Said he was curious as to why their minimum square footage is at 1,900 square feet in a subdivision full of 3,000 square foot houses and why that would be more conducive to the people they’re selling to.

Trustee Lowery expressed his appreciation for the concessions already made and said he knows the developer is a business and businesses are primarily looking to profit, but he said there was a human element to business too. Said he was wondering if there was a way to appease those already living in the subdivision by building more aesthetic architectural features. Regarding the Board’s responsibility he said he agreed with the other trustees. He said his heart went out to the affected residents and he would not want to be in their position. He said given what he has learned tonight he’ll have no choice except to vote to approve these although he will be voting reluctantly.

Trustee Martinez said he has no doubt the builder intends to build quality homes and that this builder has his own vision and that markets change. He said the market change is creating a clash right now. He said there was an impression the Board has the power to stop these decisions but their decision making is limited. He’d like to see some sort of commitment for everyone involved and expressed concerns he does not know if new residents to Moose Lake Estates would feel welcomed. He wants to see a good subdivision and cohesion. He said he understood the Village’s legal obligations and abilities. If he had to vote right now it would not be a favorable vote.

Mayor Berman added that there are very few homes the size of current Moose Lake Estates homes being built right now. He added that they talk about communities and that communities are based upon the people that live there, not the size of the home.

Trustee Guethle said he’d like to see a little more from the builder to work with the HOA.

Trustee Gaffino noted he was on Plan Commission when this property developed and said they are beautiful homes. He said unfortunately the economy has changed and smaller homes may be what is selling. He’d like to see something more compatible. He noted that according to the Village’s attorney the Village did not have much to go on, but he was not in favor of it.

Mayor Berman said there are no guarantees when it comes to houses. He said he’s seen homes built and torn down and people complaining about zoning and who is going to be their neighbor. He said he is always trying to do the best thing for North Aurora. This may not be the thing they want to do, but they have to do something. He said he knows the concerns of the people but the legal part is the most important thing and acknowledged what the Village is bound to do legally.


(Audience Comments previously finished; two additional residents requested to speak following that portion and have been included here)

Brian LoCicero, 466 Pheasant Hill Drive – said he felt it was important to bring up the HOA laws given trustees referencing them and that the HOA did not have recourse as since the developer has 27% of the units the developer still maintains control. He said they feel very hamstrung. He said he hears everyone saying their hands are tied. He said the builders always say that requests could be options and are ‘we might’ or ‘we could.’ Asked the builder to think this through.

Rebecca Hernandez, 536 Mallard Point Drive – said she wanted to correct Attorney Drendel to his comment that communities do not set minimum standards. Said Aurora, Illinois has wording for their estate zoning that no family dwelling is to be less than 3,500 square feet. She said Attorney Drendel was adamant that wording was not used and yet it is so common it is right next door.


Village Administrator Bosco said these two items would be brought to the next Village Board agenda on December 21, 2020.



Motion to adjourn made by Trustee Guethle and seconded by Trustee Curtis. All in favor. Motion approved.

Respectfully Submitted,

Natalie F. Stevens
Deputy Village Clerk


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