VILLAGE OF NORTH AURORA
COMMITTEE OF THE WHOLE MEETING
MAY 19, 2008
CALL TO ORDER
Village President Hansen called the meeting to order.
ROLL CALL
In attendance: Village President John Hansen, Trustee Dale Berman, Trustee Mike Herlihy, Trustee Bob Strusz, Trustee Mark Gaffino, Trustee Linda Mitchell, Trustee Max Herwig.
Staff in attendance: Village Administrator Sue McLaughlin, Management Analyst Wes Kornowske, Finance Director Bill Hannah, Community Development Director Scott Buening, Public Works Superintendent Mike Glock, Village Engineer Jim Bibby, Police Chief Tom Fetzer, Fire Bureau Chief Mark Bozik, Village Attorney Kevin Drendel.
AUDIENCE COMMENTS
Nick and Amy Smith, 463 Lake Run Court, North Aurora, IL – The Smiths came before the Board regarding berm and easement issues on their property. Mr. Smith handed out information binders to the Board. Amy Smith informed the Board that the issue started in July of 2007. The Smiths moved into their home, built by Toll Brothers, in March 2007. They discovered, while attempting to get a permit for their fence in July of 2007, that there was no certificate of occupancy. Smith said that their closing papers showed that the temporary certificate of occupancy was contingent on sod only. The Smiths then discovered that there were grading issues on the property. The Smiths discovered that the developer had failed on the final grading in June of 2007. Six months after that and four gradings later, the builder still failed on the final grading. Ms. Smith noted that the drainage issues have been resolved, however, they are still without a certificate of occupancy. December was the last meeting between the developer, the Village and the Smiths in which two options were given to the Smiths. The options were to give up the berm and the trees. Ms. Smith said that there is a berm on their property with 11 mature trees and was one of the selling points for their lot. Ms. Smith said they paid an incremental $30,000 for this lot due to the mature landscaping. The other option was to give up 10 feet off the back property line, equating to a total of a 30-foot easement. Ms. Smith said they have been given a deadline by the Village attorney of May 24th to make a decision and that a transcription of the voice mail left by Toll Brothers was provided in tab E of the binder, which states that all of the landscaping would be demolished and the owner would have an eyesore to look at as a result. Ms. Smith said that she and her husband were appealing to the Village Board since all of the points that were brought to the table as issues between Rempe-Sharpe and the developer have been addressed satisfactorily. Smith said that the village attorney’s letter noted that a decision needed to be made since there was a drain tile installed in front of the berm. Ms. Smith noted that some of the trustees have come out to their house to look at the situation and no one was able to identify the drain tile in front of the berm. Ms. Smith said that the entire tile is behind the berm, which is within the easement.
Village President Hansen asked what the two neighbors on each side of the Smiths did regarding the same situation. McLaughlin said the berm was removed without incident. McLaughlin said the reason that the 10-foot utility easement is needed is because the swale is not deep enough to handle a large amount of rainfall. McLaughlin said she has pictures from a neighbor that shows overflow into his yard. McLaughlin said that there was a third option that would have been suggested at their next meeting in a couple of weeks. If the Smiths do not want to sign over the easement, they can possibly discuss a license and maintenance agreement that states if they put in a gazebo or landscape berming and if there is an issue, the homeowner is responsible. McLaughlin confirmed that the drainage tile is on the far side. Atty. Drendel said the berm never should have been there to begin with since it is a drainage easement. Atty. Drendel said that it is understandable that the Smiths are upset because they wouldn’t have known that and they bought the property with the berm.
Trustee Mitchell said it appeared that the argument is with the builder and not the Village. The Smiths said that the Village is the one imposing the deadline. Trustee Herlihy asked where Toll Brothers engineering was from June of last year to today. McLaughlin said that shots of the swale have been requested. Village Engineer Jim Bibby said that the Village has always enforced compliance with the approved grading plan. With the initial installation of the berm, this lot was clearly not in conformance. Toll Brothers tried to create a workable grading plan, salvaging the berm, on three different occasions, but have not succeeded. Bibby said that the resident mentioned that the lot now works with the re-grading work that has been done. Bibby said the singular issue is containing and routing the overflow on the rear lot line. Bibby suggested he meet with the resident in the field with a surveyor from his office to take some shots and see if a portion of the berm can be salvaged and report back to Sue. Trustee Mitchell asked who would pay for this service. Bibby said it would come out of Toll Brothers escrow.
Amy Smith said that in the four times the lot was re-graded, the berm was never brought up as a point of contention and never brought up as a problem for grading until December. Trustee Mitchell said that the letter dated September 6, 2007, states that the berm and drainage swale along the west property line are not in accordance with the approved grading plans. Trustee Herlihy said that is not a letter to the homeowner. Bibby said that Rempe-Sharpe’s contact is always with the developer. Trustee Herlihy noted that the temporary certificate of occupancy lists sod as the element incomplete at closing. Herlihy said the homeowner is asking for relief from Atty. Drendel’s letter because they are now put in a position of removing the berm and trees that were there when they bought the lot and part of the feature they bought. Herlihy asked what the real engineered purpose of the additional ten-foot storm drainage easement is, especially if the plat hasn’t been surveyed to determine if water would even run in that direction. Herlihy said that he understands that Toll Brothers added a drain at the south end of the property and a drain tile around the west side of the berm that comes back up adjacent to the storm drain structure. Herlihy said that Toll Brothers did some engineering but did not pass that on to the Village.
Trustee Herwig said he would like to have Jim Bibby look at the situation.
Bibby said that in this case the temporary occupancy and the move in date happened in March of 2007, the detailed lot grading plan was submitted to the Village as dated on May 15, 2007 and received by Rempe Sharpe on June 1st. The review failed on June 8, 2007. Bibby said that this is the time of year where it is very difficult to get the grading done and to get the sod as the occupancy is happening.
McLaughlin asked about the Village’s liability if the Village’s engineer designs a fix for this situation and it fails. Atty. Drendel said that if it fails, the Village would be a target in the case that there is a claim. Bibby said the Village would not do any design in this case.
Village President Hansen suggested the engineers for Toll Brothers survey the property. Herlihy asked if the Village has sent a letter to Toll Brothers, asking them for a topographical survey and engineering for the condition that they are presenting for the Village’s acceptance. McLaughlin said that Mark Smith of Williams Associates has talked to Toll Brothers several times. Trustee Herwig suggested informing Toll Brothers that the Village would place a stop on all of their building.
Trustee Mitchell said she was in favor of pursuing this and trying to get Toll Brothers to get the work done. McLaughlin asked if the Village could freeze Toll Brothers’ building permits. McLaughlin questioned whether the Village had the right to tell Toll Brothers how to fix the berm. Atty. Drendel said that Toll Brothers has an obligation to the Village and the Village has an obligation to protect the subdivision and the surrounding properties and to the Kane County Stormwater Control Ordinance. The Village will inform Toll Brothers that there is a violation that has to be resolved.
McLaughlin said she does not want the Village to spend the time and money if Toll Brothers has the ability to tell the Village that they will just take out the berm and resolve it in their own way. Atty. Drendel said that Toll Brothers could comply with the Village’s ordinance by taking the berm out.
Trustee Herlihy said he looked at the berm and it appeared to make sense. The amount of area that is being drained appears to be 30 or 40 feet of the adjacent lot. Herlihy said he did not notice that it slopes off onto the neighbor’s property. Herlihy said he doesn’t understand why Toll Brothers won’t submit engineering. Mass grading was done and this berm was put in prior to the lot being sold. Herlihy asked if the Village never saw the berm. Herlihy questioned if Toll Brothers put the berm in place to help sell the lots and once the lots were sold, the owner would be informed that the berm had to be removed. Herlihy said this would be a deceptive practice and did not want the Village to become a party if there is deceptive practice issue. Herlihy said he liked the screening, thinks it is functional and would like to see the spot surveys.
Village President Hansen suggested extending the deadline date to July 30th, get the Village engineer to the property, have Toll Brothers go out and shoot their engineering and get that information back to Village Administrator Sue McLaughlin. Hansen suggested McLaughlin contact Toll Brothers first thing tomorrow morning and inform them that this is a great concern that has been brought before the Village. Trustee Mitchell suggested Toll Brothers provide the proper drawings to accompany their work and provide the Village, in writing, what action they intend to take to correct it.
Atty. Drendel said he was not completely comfortable telling Toll Brothers not to do something that they are suppose to be doing in order to be compliant. Atty. Drendel said the issue is a private one with the Smiths. Jim Bibby said that Toll Brothers should not do anything until the Village has an extremely detailed re-engineered and re-grading plan that has been signed off by the Village. Trustee Mitchell said the Village would send a letter to Toll Brothers and provide the Smiths with a copy of that letter.
TRUSTEES COMMENTS – None
A.
