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HomeMy WebLinkAboutPacket - 02/26/2021 - Community Development CommitteeThe City of McHenry is dedicated to providing its citizens, businesses, and visitors with the highest quality of programs and services in a customer-oriented, efficient, and fiscally responsible manner. Community Development Committee February 26, 2021 3:00 PM In light of the current COVID-19 public health emergency, this meeting will be held remotely only. The public can observe and participate by connecting online via Zoom at https://cityofmchenry.zoom.us/j/92543680148?pwd=S3BscFpuVWJjaG12Q0k5MDFJYnpMUT09 or by phone at: (312) 626-6799, Meeting ID: 925 4368 0148, Passcode: 139108 AGENDA 1.Call to Order 2.Public Comment: Any person wishing to address the Committee will be asked to identify themselves for the record and will be asked but are not required to provide their address. Public comment may be restricted to three-minutes for each individual speaker. Order and decorum shall be maintained at public meetings. 3. Approval of Jan 5, 2021 meeting minutes 4.Amortization ordinance discussion 5. Business license discussion 6. Motion to adjourn the meeting 1 Community Development Committee Meeting Minutes January 5, 20201 Page 1 Community Development Committee Meeting January 5, 2021 Call to Order: Alderman Devine called the meeting to order at 3:05 p.m. The meeting was held remotely via Zoom due to the COVID-19 pandemic. The meeting was in compliance with the Open Meetings Act per guidelines by the Illinois Attorney General’s Office. Roll Call: Deputy Clerk Johnson called the roll. Roll call: Members present: Alderman Devine, Alderman Harding, Alderwoman Miller. Others present: City Planner Cody Sheriff, Community Development Director Ross Polerecky, Economic Development Director Doug Martin, Deputy City Clerk Monte Johnson. Public Comments: No members of the public offered any comment. Approval of Minutes: A motion was made by Alderwoman Miller and seconded by Alderman Harding to approve the minutes of the April 8, 2019, Community Development Committee meeting. Roll Call: Vote: 3-ayes: Alderwoman Miller, Alderman Harding, Alderman Devine. 0- nays, 0-abstained. Motion carried. Z-974 – Use Variance to allow three horses and four chickens and any other variances required to effectuate the aforementioned request: The petitioners are Doherty JD Tr, Doherty KA Tr of 2150 Richmond Road, McHenry, IL 60050 (“Property Owners”) Director Polerecky reviewed the three options available on page seven of the staff report. Option 3 includes passing a use variance that would be approved based on certain conditions that were explained. Option 2 was to deny the use variance and classify the property as nonconforming. Option 1 is the recommendation by the staff, and would be to deny the use variance and work on drafting an ordinance amortizing the use no later than 3-5 years from the date of annexation. Alderman Devine stated that he would like to rule out Option 2. Alderwoman Miller explained that she would be in favor of Option 1 but would like to see it last more than 3-5 years. She would like a 7-10 year range, and she is also not in favor of Option 2. She does not like Option 3 because it would set precedence for other properties. The City is going to be annexing other properties and does not want these properties looking like an agriculture zoned parcel when they are actually residential properties. Alderman Harding agrees with Alderwoman Miller but would like Option 1 to stay in the 3-5 year range. He is not in favor of 7-10 years due to concerns from the neighbors. Lisa Waggoner spoke as the attorney for Joe Doherty. From the Doherty standpoint, they purchased the property to help a longstanding employee who was unable to buy it himself. They 2 Community Development Committee Meeting Minutes January 5, 20201 Page 2 are hoping to sell the property to that employee in the next few years. A 3-5 year period is too short as time goes by quickly. A 10 year period would be more desirable. With a longer term and opportunity to purchase it with the option to have horses, there is a better chance they treat this property as a home instead of a rental. She also believes that Option 3 should be more desirable for the neighbor to the south as they would have conditions that would need to be met that benefit that neighbor. Option 1 does not have any conditions attached that would help the neighbors. City Planner Sheriff agreed that Option 3 has better conditions for the neighbor to the south, but is worse for the long term because horses would be allowed longer. Option 1 has the shortest time that horses would be allowed. The conditions are helpful for the neighbor in the short term but Option 1 is better for the removal of the horses in the shortest time possible. Director Polerecky also stated that staff would be worried about setting precedence moving forward with future annexations. Alderwoman Miller asked Mr. Doherty what the plan is moving forward. He hopes to sell the property to his tenant in the next 3-4 years, and would like to have horses for 10 years. Alderwoman Miller still stresses her concern for setting precedence. She also is concerned that the two parcels could be sold separately. She would not want any conditions placed on a 1 acre parcel, and would need to see the conditions tied to both parcels. She wants to look at the long- range picture and wants to be reasonable in accommodating all parties, but also wants to have uniformity. Director Polerecky explained that the two parcels could not be sold separately because a septic system was recently installed that ties the two parcels together. Mr. Doherty brought up points that the City annexed in the tree service and extended them out 20 years, and Harms Farm was also extended out a long period of time. He does not believe it is fair to limit him to 3-5 years and making him put money out to satisfy conditions. Lisa Waggoner reiterated that it may be the most fair to go with Option 3 as Mr. Doherty would agree to help the neighbor by blocking to the south with arborvitaes, a berm, and lilacs. She stated that this is what the neighbor wanted from the beginning and what Mr. Doherty offered. Guy Youman was present and represented Ms. Knox, who is the neighbor to the south. He reminded the committee that Mr. Doherty recently purchased the property as an island property. The horses have only been there two years, so it wouldn’t be logical to let them stay any longer. There are health issues with the horse feces. He also doesn’t believe a 15 foot setback is enough. The neighbor to the north also has other issues. There haven’t been horses there for 50 years, and this is a completely different issue from the Harms scenario. He does not like Option 1 as there are no conditions to help the neighbors. City Planner Sheriff and Director Polerecky explained that Option 1 would have the shortest amount of time for nonconformity. Option 3 could allow for horses for up to 10 years. Brian Kilinski was present at the meeting and is the neighbor to the north. He says they have dealt with the dust and smell and have runoff as they are downhill from the property. He 3 Community Development Committee Meeting Minutes January 5, 20201 Page 3 contacted the County regarding the complaints and he said they were supposed to look into the issue. The impacted soil has caused a greater storm water runoff towards them, especially with the trees that have been cut off. He has health concerns with his young children who like to play in the backyard. He would like to have the horses gone in the shortest time possible. Alderman Devine opened the discussion back up to the Committee members. He states that he keeps thinking about the fact that the horses have only been there two years, and the neighbors have been there a lot longer with no horses. Alderwoman Miller explained how the process of forced annexation has brought this forward. She explained that the Council as a whole has decided that it is time to get all of the little pockets of property that are not in the City limits to be a part of the City. She discussed how they are using City services and how it can cause problems by them not being annexed. The City is simply trying to do the right thing and is finally moving forward with the process that has been discussed for many years. Director Polerecky stated that the Committee will need to make a recommendation, and asked if anybody is open to Option 3 with conditions. Alderman Harding would not mind going with Option 3 but does not like the 10 year period. He wants 3-5 years or even less. Alderwoman Miller stated that the neighbor to the north would be happy with a 3 year time period. She asked the neighbor to the north if those conditions would work for him. He stated that none of the conditions in Option 3 would benefit his property, as he is downhill and his issues are different than the neighbor to the south. Alderwoman Miller suggested going with Option 3 with a 7 year time period, but Alderman Devine and Alderman Harding both stated that they do not think it is fair to keep the horses there that long. They are committed to staying with the 3-5 year time period. Mr. Doherty explained that if the time allowed is that short, it does not make sense for him to agree to any conditions that would cause him to spend any money. A motion was made by Alderman Harding and seconded by Alderwoman Miller to recommend approval of Option 1 subject to the terms and conditions outlined within the staff report. By making said motion, I believe that the Approval Criteria for Use Variances have not been met. Roll Call: Vote: 3-ayes: Alderwoman Miller, Alderman Harding, Alderman Devine. 0-nays, 0- abstained. Motion carried. Director Polerecky explained that this item will be placed on the agenda for the City Council at the meeting on January 18, 2021. Adjournment: A motion was made by Alderman Harding and seconded by Alderwoman Miller to adjourn the meeting at 4:24 p.m. Roll Call: Vote: 3-ayes: Alderwoman Miller, Alderman Harding, Alderman Devine. 0-nays, 0-abstained. Motion carried. 4 Community Development Committee Meeting Minutes January 5, 20201 Page 4 Alderman Devine Deputy Clerk Monte Johnson _________________________________ _________________________________ 5 Department of Community & Economic Development McHenry Municipal Center 333 Green Street McHenry, Illinois 60050 Phone: (815) 363-2170 Fax: (815) 363-2173 www.ci.mchenry.il.us REGULAR AGENDA SUPPLEMENT TO: Community Development Committee FROM: Cody Sheriff, City Planner FOR: February 26, 2021 Community Development Committee Meeting RE: Z-984 Zoning Text Amendment to Chapter 16: Nonconformities of the City of McHenry Zoning Ordinance. ATT: 1. Memorandum from City Attorney dated February 5, 2021 2. Abandonment, Discontinuance and Amortization of Nonconforming Uses: Lessons for Drafters of Zoning Regulations (2010) Agenda Item Summary: The City of McHenry is proposing changes to the Zoning Ordinance including but not limited to Chapter 16: Nonconformities. Background: The City of McHenry is in the process of force annexing unincorporated parcels that are wholly surrounded by the City of McHenry municipal limits and less than sixty (60) acres. The most recent annexation cases have demonstrated a need to update the City’s Nonconformities Ordinance. Staff have been directed by City Council to draft an amortization ordinance to present to City Council in February that would amend the recently approved Nonconformities Ordinance. This would allow the City to sunset nonconforming uses in Residential Zoning Districts that may be negatively impacting the surrounding area. Staff initially brought the requested amendments to the February 17, 2021 Planning & Zoning Commission Hearing but requested the matter be continued to allow the Community Development Committee to comment on the requested amendments. Staff Analysis: The purpose of an amortization ordinance is to discontinue nonconforming uses that are incompatible with the underlying zoning district regulations. These nonconforming uses typically are negatively impacting the health, safety, and welfare of the public. An amortization ordinance requires a nonconforming use to discontinue after an established period of time that would allow a property owner to recoup their investment. Amortization is not meant to reimburse but to provide the property owner of a nonconforming use an economic cushion. 6 Department of Community & Economic Development McHenry Municipal Center 333 Green Street McHenry, Illinois 60050 Phone: (815) 363-2170 Fax: (815) 363-2173 www.ci.mchenry.il.us The City Attorney researched and provided staff legal guidance for drafting an ordinance. Although there are not many local examples in McHenry County, staff have found several examples of model language. There are two methods of determining amortization: 1) fixed- periods approach; and 2) case-by-case methods. The attached article provides an overview of both approaches starting on page 500. Staff is recommending a hybrid approach that involves a fixed period of one (1) year with the ability of the property owner to apply for and receive a six (6)month extension. Any request greater than six (6) months would require review by the Planning & Zoning Commission. City Council will ultimately approve or deny the request. Staff is requesting approval of the text amendments to the nonconformities section of the Zoning Ordinance. Staff emphasizes that approval of the requested text amendments will have an immediate impact on owners and operators of nonconforming uses in residential zoning districts. This is not an exhaustive list but staff have identified at least one church, the newly annexed office building on IL-31, and several multifamily buildings as examples that are nonconforming uses in residential zoning districts. The committee may wish to consider if there are any accommodations for impacted property owners such as waiving application fees for one year. If the committee feels comfortable with the proposed text amendments, staff will present them to the Planning & Zoning Commission on March 17, 2021 for a recommendation to City Council. If the committee desires to recommend to City Council approval of the requested text amendments, then a motion is in order. 7 Department of Community & Economic Development McHenry Municipal Center 333 Green Street McHenry, Illinois 60050 Phone: (815) 363-2170 Fax: (815) 363-2173 www.ci.mchenry.il.us Draft Text Amendment Language: 11-16-3(G), 11-16-3(H), 11-16-3(I) G. Amortization of Nonconforming Uses in Residential Zoning Districts. Any nonconforming use of land located in a residential zoning district which lawfully existed at the time that this Ordinance became effective, shall be discontinued within one (1) year from the date of its passage. This section does not apply to nonconforming uses that received approval of a use variance. H. Requests for Extensions of Nonconforming Uses in Residential Zoning Districts. The owner or operator of a nonconforming use in a residential zoning district may request a six (6) month extension which shall be reviewed and approved by the Zoning Administrator. I. Requests for Extensions of Nonconforming Uses in Residential Zoning Districts greater than six (6) months. City Council may grant an extension for the continued operation of a nonconforming use in a residential zoning district. In order to secure an extension of time greater than six (6) months, the owner or operator must submit to the Zoning Administrator a written request for such extension at least sixty (60) days prior to the end of the amortization period. No application for extension received after such time shall be considered. This information shall be supported by relevant documentary evidence such as: 1) the amount of the owner’s investment in the pre- existing, nonconforming use through the effective date of this ordinance; 2) the amount of such investment that has been or will have been realized at the conclusion of the amortization period; 3) the life expectancy of the nonconforming use; and 4) the existence or nonexistence of lease obligations, as well as any contingency clauses therein permitting termination of such lease. The Zoning Administrator shall notify an applicant for an extension of time greater than six (6) months of the time and place of a hearing to be held on such request before the Planning & Zoning Commission. The Planning & Zoning Commission shall make a recommendation to be transmitted to City Council who may approve or deny the request. 8 Memorandum To: David W. McArdle From: Brandy S. Quance Date: February 5, 2021 Re: Amortization of Land Uses The City of McHenry is considering passing an amortization ordinance to address nonconforming uses within its municipal boundaries. Such an ordinance would allow a property owner to amortize the loss of the present use of the property (the nonconforming use) over a specified period.1 The City will need to consider each property affected prior to passing such an ordinance. A specific property owner’s interests may be considered if the property owner challenges the ordinance. A court may consider the purchase price paid, the investment costs, the income lost, and the cost of complying with the amortization ordinance and balance those against the public interest served. Therefore, a longer period of time lessens the economic impact on a property owner and makes the application of the ordinance more reasonable (and, therefore the property owner’s argument less viable). Background The Illinois Municipal Code gives a municipality the authority to gradually eliminate existing uses which are incompatible with the character of the district in which it is located.2 Section 11-13-1 of the Municipal Code states: … In all ordinances passed under the authority of this Division 13, due allowance shall be made for existing conditions, the conservation of property values, the direction of building development to the best advantage of the entire municipality and the uses to which the property is devoted at the time of the enactment of such an ordinance. The powers conferred by this Division 13 shall not be exercised so as to deprive the owner of any existing property of its use or maintenance for the purpose to which it is then lawfully devoted, but provisions may be made for the gradual elimination of uses, buildings and structures which are incompatible with the character of the districts in which they are made or located, including, without being limited thereto, provisions (a) for the elimination of such uses of unimproved lands or lot areas when the existing rights of the persons in possession thereof are terminated or when the uses to which they are devoted are discontinued; (b) for the elimination of 1 See Village of Arlington Heights v. Krause, 16 Ill.App.3d 595, 598 (1973). 2 65 ILCS 5/11-13-1. 9 February 10, 2021 2 uses to which such buildings and structures are devoted, if they are adaptable for permitted uses; and (c) for the elimination of such buildings and structures when they are destroyed or damaged in major part, or when they have reached the age fixed by the corporate authorities of the municipality as the normal useful life of such buildings or structures. … An amortization ordinance must benefit the public health, safety, and welfare.3 If it does not, it may be challenged.4 Like other ordinances, an amortization ordinance is entitled to a presumption of validity.5 However, the right to continue a nonconforming use is a property right, so an amortization ordinance depriving an owner of his/her property right without a public need will not be upheld.6 Further, each case involving an amortization ordinance as applied to a particular property is judged upon its own particular facts.7 Consideration is given to the interest of the public and the property owner.8 Illinois courts have considered the follow factors when balancing a property owner’s interests against the public interest: the purchase price paid by the property owner, the investment costs by the property owner, the income loss by the property owner, and the cost of complying with an amortization ordinance.9 Analysis Illinois case law has dealt with ordinances with an amortization period as short as 6 months and as long seven years and are outlined below. The following cases upheld an amortization ordinance: Village of Glenview v. Velasquez, 123 Ill. App. 3d 806 (1st Dist. 1984) A 6-month amortization ordinance was allowed as applied to barbed wire on 6-foot fencing. There was not enough evidence of damage to the property owner to overcome the public benefit of removing a barbed wire fence from a residential area. Cook County v. Renaissance Arcade and Bookstore, 122 Ill. 2d 123 (1988) A 6-month amortization ordinance with an additional 6-month extension upon application was allowed as applied to adult use establishments. The defendant did not present any evidence of how it was harmed while the plaintiff presented more than sufficient evidence of the public benefit. 3 See Village of Oak Park v. Gordon, 32 Ill.2d 295, 298 citing Brown v. Gerhardt, 5 Ill.2d 106 (1955) and Schneider v. Board of Appeals of City of Ottawa, 402 Ill. 536 (1949). 4 See Oak Park, 32 Ill.2d at 298. 5 Id. at 296 citing Westfield v. City of Chicago, 26 Ill.2d 526 (1962), Marquette Nat. Bank v. Cook County, 24 Ill.2d 497 (1962), LaSalle Nat. Bank of Chicago v. Cook County, 12 Ill.2d 40 (1957). 6 See Oak Park, 32 Ill.2d at 298. 7 Id. 8 Id. 9 See Oak Park, 32 Ill.2d at 297 and Village of Glenview v. Velasquez, 123 Ill.App.3d 806, 810 (1984). 10 February 10, 2021 3 Village of Gurnee v. Miller, 69 Ill. App. 2d 248 (2d Dist. 1966) A 3-year amortization ordinance was allowed as applied to a junkyard. There was not enough evidence of damage to the property owner to overcome the public benefit of removing a junkyard that dismantles automobiles and burns them causing emissions of black smoke. Village of Skokie v. Walton on Dempster, Inc., 119 Ill. App. 3d 299 (1st Dist. 1983) An amortization ordinance allowing for a maximum of 7 years (based upon value) was allowed as applied to signs. There was not enough evidence of economic hardship to overcome the public benefit. In addition, in this case, the court included that sign had been completely depreciated for federal income tax purposes. The following cases struck down amortization ordinances; however, none of the decisions were due to the length of time. Village of Burr Ridge v. Elia, 23 Ill. App. 3d 350 (2d Dist. 1974) The court stated a 1-year amortization ordinance for unimproved land would not be upheld as it conflicts with the Municipal Code. The Municipal Code allows “for the elimination of such uses of unimproved lands or lot areas when the existing rights of the persons in possession thereof are terminated or when the uses to which they are devoted are discontinued.” However, I would also note that the Village of Burr Ridge is not a home rule municipality and the Municipal Code specifically states “[t]his amendatory Act of 1971 does not apply to any municipality which is a home rule unit, except as provided in item (12).” (Item 12 involves a municipality regulating political signs.) Village of Oak Park v. Gordon, 32 Ill. 2d 295 (1965) A 5-year amortization ordinance was not allowed as applied to a multi-tenant use limiting the number of residences from four to two. There was no evidence of a public need for the restriction or that the public interest would be served while there was evidence of a financial loss to the defendant. Conclusion The City of McHenry in passing an amortization ordinance should make clear the public benefits to discontinuing the nonconforming uses within its municipal boundaries. The amortization period will need to consider the properties affected, including the purchase price paid, the investment costs, the income lost, and the cost of complying with the amortization ordinance. Z:\M\McHenryCityof\Amortization of Land Uses Memo.doc 11 Digital Commons @ Touro Law Digital Commons @ Touro Law Center Center Scholarly Works Faculty Scholarship 2010 Abandonment, Discontinuance and Amortization of Abandonment, Discontinuance and Amortization of Nonconforming Uses: Lessons for Drafters of Zoning Regulations Nonconforming Uses: Lessons for Drafters of Zoning Regulations Patricia E. Salkin Touro Law Center, psalkin@tourolaw.edu Follow this and additional works at: https://digitalcommons.tourolaw.edu/scholarlyworks Part of the Land Use Law Commons Recommended Citation Recommended Citation 38 Real Est. L.J. 486 (2010) This Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ Touro Law Center. It has been accepted for inclusion in Scholarly Works by an authorized administrator of Digital Commons @ Touro Law Center. For more information, please contact lross@tourolaw.edu. 12 Zoning and Land Use Planning Patricia E. Salkin * Abandonment, Discontinuance and Amortization of Nonconforming Uses: Lessons for Drafters of Zoning Regulations I. Introduction Observing that a disproportionate number of reported cases highlighted on the Law of the Land blog (www.lawoftheland. wordpress.com) are opinions addressing the subject of nonconforming uses, this column attempts to unravel some of the legal issues that stem from poor drafting of these provi- sions in zoning regulations, and demonstrates options for practitioners and drafters to better regulate for the eventual disappearance of nonconformities. Early drafters of zoning legislation believed that some uses of land were incompatible with others and that more ef- cient employment of land resources would be achieved if such incompatible uses were cleanly separated. The drafters respected the “natural” patterns of development evidenced by existing uses, and use districts established by law un- avoidably included land devoted to uses proscribed by the new zoning regulations. 1 However, for legal and political reasons, the drafters avoided direct attacks on these incompatible or nonconforming uses and instead permitted existing uses to continue, albeit taking steps to gradually eliminate them over time. 2 The early drafters took steps to reduce the life expectancy of these nonconforming uses by limiting their right to change, expand, alter, repair, restore, or recommence after the use stopped for a specied period of time.3 With such restrictions, the theory was that market forces would eventually force operators and owners to elimi- nate these nonconforming uses. 4 This expectation, however, *Patricia Salkin is the Raymond & Ella Smith Distinguished Profes- sor of Law and Director of the Government Law Center of Albany Law School. This column is based on presentations by the author at the August 2009 ALI-ABA Land Use Institute in San Diego, CA, and the November 2009 Planning, Zoning and Eminent Domain Institute of the Center for American and International Law in Dallas, TX. 486 13 has not been realized, and today the problems associated with the regulation and desire to eliminate nonconforming uses make up a signicant portion of land use related litigation. The American Planning Association's Legislative Guidebook on Smart Growth explains that in deciding how to treat nonconforming uses, local governments must ad- dress two competing principles: achieving ultimate confor- mity balanced with fairness in requiring termination of a use or demolition of a structure that was constructed or com- menced in compliance with the law when the owner, relying on the legality of the land use or structure at the time, incurred time and money in maintaining the structure or continuing the use. 5 More recently, attention has been focused on the legal nonconformities of development standards.6 The authority of a municipality to deal with nonconform- ing uses may be broadened or narrowed by the enabling acts which are the source of its zoning power. 7 However, most states do not address the subject of nonconforming uses in these statutes. 8 Therefore, the regulation of nonconforming uses is left largely to municipalities and the unique ap- proaches and language they may individually choose to employ with respect to these uses. While there are many aspects of a full discussion of the regulation of nonconform- ing uses, this column is focused on the narrow issue of how local governments seek to use their authority to eventually eliminate nonconforming uses through regulatory determina- tions of passive abandonment and/or discontinuance of the use, and well as through the more active method of amortization. II. Abandonment or Discontinuance Municipal legislatures have included in their zoning ordi- nances specic provisions for the termination of nonconform- ing uses based on the theory of discontinuance of use or abandonment. Some ordinances terminate nonconforming uses after a specied period of “abandonment” while other regulations are drafted in terms of “discontinuance” of use, or allowing a nonconforming structure to remain vacant. 9 The periods of vacancy, discontinuance, or abandonment that may trigger a permanent cessation of use can range from 30 days to two years. 10 Many jurisdictions have established a two-pronged subjec- tive test to determine if a property owner has abandoned a nonconforming use. 11 This test typically requires “(1) an intention to abandon, and (2) some overt act or failure to act Zoning and Land Use Planning 487 14 which carries a sucient implication that the owner neither claims nor retains any interest in the subject matter of the abandonment.”12 The owner has the burden of proof by a preponderance of evidence to show “the use is a continuing and denite intention.” 13 Other municipalities instead choose to remove the element of intent. In these situations, discon- tinuance provisions specically state that they operate to prevent and prohibit resumption of a nonconforming use af- ter a specied period of time has lapsed, regardless of intent.14 This type of provision has been construed as establishing a rule of evidence and operates even where there is no intent to abandon or even where there was an intent not to abandon. 15 While the courts have agreed that munici- palities have power to impose such a restriction, they are not in agreement as to whether it is alone sucient to prevent resuming the nonconforming use. 16 A number of courts still construe discontinuance as abandonment and require proof of discontinuance for the specied period of time to be supplemented by some proof of an overt act, or failure to act, which would justify a nding that there had been an intent to abandon the rights inherent in the nonconforming use. 17 III. Drafting and Interpreting Ordinance Language for Abandonment and Discontinuance Absent statutory guidance, exactly what constitutes abandonment or discontinuance of a nonconforming use is up to the municipality in the rst instance. Much of the liti- gation can be avoided if municipal drafters were more care- ful in wording. What follows are examples of the common approaches to drafting that demonstrate the variety of choices municipalities must make. It is critically important for municipal attorneys to review the applicable zoning ordinance/law when it comes to the subject of nonconforming uses to guide the municipality in a discussion for purposes of ensuring that the ordinance, as written, will accomplish the desired outcome. Furthermore, a preemptive examination of the nonconforming use section of the zoning regulation can help municipal attorneys and planners to identify vague pro- visions and standards that can be claried prior to ap- plicants, property owners and neighbors invoking a poorly drafted regulation that is then left to the courts to interpret. For example, consider the following issues: Real Estate Law Journal [Vol. 38:4 2010] 488 15 1. What is the desired length of time for a nonconforming use to have ceased for the municipality to consider it abandoned and no lon- ger legally recognized? There is no “right” length of time for a municipality to al- low a nonconforming property owner to cease or suspend operation of the use before future use must conform to the zoning regulation. This is a decision that each municipality must make for itself. The common drafting problem is the ordinances can be poorly written with vague and ambiguous terms. Below are examples of both clear and unclear ordinance provisions, as well as provisions that show a range of time from 30 days to two years before abandoned or discontinued nonconforming uses lose their preferred status as such. These illustrative examples are then followed by examples of recent litigation where the issue before the court centered on the language of the zoning ordinance with re- spect to time. Examples from zoning ordinances: a. “If such nonconforming use of land ceases for any reason for a period of more than 30 days, any subsequent use of such land shall conform to the regulations specied by this chapter for the district in which such land is located.” City of Grand Ledge, MI, Charter, Part II, General Legislation, Chapter 220 Zon- ing, Article XX: Nonconforming Lots, Structures and Uses, § 220-93 Nonconforming uses of land (C). b. “If any such nonconforming use of land ceases for any reason for a period of more than 30 days, any subsequent use of such land shall conform to the regulations specied by this chapter for the district in which such land is located.” City of El Reno, OK, Charter, The Code, Part II, General Legislation, Chapter 361 Zoning, Article V: Nonconformities, § 361-30 Nonconforming Uses of Land (C). c. “Except as herein provided, no nonconforming use may be reestablished after it has been discontinued or vacated for a period of 180 days or more.” City of Albany, NY, Chapter 375 Zoning, Article XIII, Sec. 375-90(A). d. “When a nonconforming use of land, structure and premises in combination is discontinued or aban- doned for six consecutive months or for 18 months during any three-year period (except when government action impedes access to the Zoning and Land Use Planning 489 16 premises)the land, structure or structure and pre- mises in combination shall not thereafter be used except in conformity with the regulations of the district in which it is located.” Borough of Gibbsboro, NJ, Part II, General Legislation, Chapter, 400 Zoning, Article X: Nonconforming Uses, § 400-77 Abandonment. [Amended 2-15-1983 by Ord. No. 83-1]. e. “If any nonconforming use of land ceases for any reason for a period of one hundred eighty con- secutive days or more, any subsequent use of said land shall conform to the regulations for the zoning district in which the land is located.” Code of the City of Evanston, WY, Chapter 24 Zoning, Article X Noncon- forming Uses, Structures And Lots, § 24-98 Noncon- forming use of land (C). f. “If a nonconforming use of a building, structure or lot is abandoned for a continuous period of one year, subsequent use of such building, structure or lot shall conform with provisions of this chapter. For purposes of this chapter, abandonment shall commence when the nonconforming use ceases.” Township of Doyles- town, PA, Article XXI Zoning, sec. 175-112 (D). g. “Shall not be reestablished if such use has for any rea- son been discontinued for a period of over one year . . .” Village of Bronxeville, NY, Chapter 310 Zoning, Article V, sec. 310-25(A)(3). h. “Whenever a nonconforming use has been discon- tinued or in a non-operative status for a period of one year or more, such use shall not thereafter be reestablished, regardless of change of ownership, and any future use shall be in conformity with the provi- sions of this Code. The casual, intermittent temporary or illegal use of land or buildings shall not be sucient to establish the existence of a nonconforming use, and the existence of a nonconforming use on a part of a lot or tract shall not be construed to establish a noncon- forming use on the entire lot or tract. Town of Bethany Beach, DE, Chapter 245: ZONING, ARTICLE V Non- conforming Uses and Structures, § 245-32. Abandonment. [Amended 12-16-1983 by Ord. No. 123]. i. “When a nonconforming use of land ceases for any reason for a period of more than one year, its legal, nonconforming status is terminated.” Town of Bridgeville, DE, Charter, The Code, Part II: General Legislation, Chapter 234: Land Use and Real Estate Law Journal [Vol. 38:4 2010] 490 17 Development, Article V: Nonconforming Situations, § 234-28: Nonconforming Uses (C) Termination of nonconforming status. j. “Without just cause, no building or portion thereof used in whole or in part for a nonconforming use in a Resi- dential or Commercial District which remains idle or unused for a continuous period of 12 months, whether or not the equipment or xtures are removed, shall again be used except in conformity with the regulations of the district in which such build- ing or land is located.” Town of Fenwick Island, DE, Charter, Part II, General Legislation; Chapter 160 Zon- ing, § 160-6: General regulations; exceptions. (D) Nonconforming uses. (2) Discontinuance of nonconform- ing uses. k. “If any nonconforming use of land or of a struc- ture housing a nonconforming use ceases or is discontinued for any reason for a period of 12 or more consecutive months,any subsequent use of such land or structure shall conform to the require- ments of this chapter in all respects.” Town of Bar Harbor, ME, Charter, The Code, Chapter 125 Land Use, Article IV Nonconformity, § 125-54 Nonconform- ing uses of land or structures. (E) [Amended 11-4- 2003]. l. “(A)If a nonconforming use of a building or land is discontinued, razed, removed or abandoned for 365 consecutive days, subsequent use of such building or land shall conform with the regulations of the district in which it is located. (B)Abandonment shall commence on the date when customary ef- forts to continue the use cease.” Code of the Borough of Quakertown, PA (Bucks County), Chapter 27 Zoning, Part 4 General Regulations, § 406. Nonconformities. (Ord. 983, 3/4/1992; § 4.6; as amended by Ord. 1053, 9/1/1999, § II) 5. Abandonment. m. “Abandonment: If any nonconforming use of land or a building is discontinued for a period of two years or more such land or building shall thereafter be used or developed only in accordance with the terms of the Abington Zoning Bylaw for the zoning district(s) in which such property is located.” Abington, MA—Art. XI Nonconforming Uses, Structures and Lots, sec. 175-70 (A). n. “If a nonconforming use is discontinued for a period Zoning and Land Use Planning 491 18 of 24 consecutive months, further use of the property shall conform to this chapter or be subject to review by the Zoning Board of Appeals.” Town of Lake George, NY, Chapter 175 Zoning, Article VII, sec. 175-65. 2. Does it make a dierence whether the property owner intended to abandon the use? Typically zoning ordinances remove the element of intent from an abandonment analysis, making it easier to prove that the use had ceased for the applicable period of time. Where intent is an element to be considered, evidentiary is- sues can become problematic. What follows are examples of provisions for zoning ordinances that illustrate various ap- proaches to addressing the issue of intent, and then some recent cases where intent was an issue. Examples from zoning ordinances: a. “A nonconforming use, if is discontinued for a continu- ous period of six months, shall be deemed terminated unless the property owner can demonstrate to the reasonable satisfaction of the Planning and Zon- ing Commission his or her intent to maintain and continue such use.” Bethel, CT (Faireld County), sec. 118-40(D). b. “Abandonment of a nonconforming use shall consist of some act, or failure to act, which evidences the owner's lack of intent to continue the nonconform- ing use and is not refuted by any demonstration on the part of the owner of an intent not to abandon the use; provided however, that any involuntary inter- ruption caused by catastrophe, if any nonconforming use ceases for a period of one year, the owner will be presumed to have abandoned the nonconforming use unless such presumption is rebutted by substantial evidence of intent not to abandon the use. Town of Westerly, RI, Chapter 260 Zoning, Article VII, sec. 260- 32(B)(3). c. “Intent to resume a nonconforming use shall not confer the right to do so.” Village of Bronxeville, NY, Chapter 310 Zoning, Article V, sec. 310-25(A)(3). d. “If such nonconforming use of land ceases for any reason for a period of more than 30 days, any subse- quent use of such land shall conform to the regulations specied by this chapter for the district in which such land is located.” City of Grand Ledge, MI, Charter, Part Real Estate Law Journal [Vol. 38:4 2010] 492 19 II, General Legislation, Chapter 220 Zoning, Article XX: Nonconforming Lots, Structures and Uses, § 220-93 Nonconforming uses of land (C). e. “If a nonconforming use of a building or land is voluntarily abandoned and ceases for a continu- ous period of one year or more, subsequent use of such building or land shall be in conformity with the provisions of this chapter.” Borough of Shippensburg, PA, Part II General Legislation, Chapter 150 Zoning, Article X Supplementary Regulations, § 150-48 Noncon- forming structures and uses, (E) Abandonment. f. “(C) Continuity of nonconforming uses.No noncon- forming use may be reestablished after it has been discontinued for 12 consecutive months. The vacating of premises or structures or the non- operative status of such premises or structures shall be conclusive evidence of discontinued use . . .” Township of Brecknock, PA, Part II: General Legislation Chapter 110 Zoning, Article III Nonconform- ing Lots, Uses and Structures, § 110-10 Nonconforming uses and structures. g. “(D)A nonconforming building or a building in which a nonconforming use is conducted that is damaged or destroyed by any casualty to any extent may be restored within two years after such destruction or damage but shall not be enlarged except as provided in § 170-73 above. (E)If any nonconforming use ceases for any reason for a continuous period of two years or more, other than for reasons beyond the control of the owner of the property, except as provided in Subsection D above, or is changed to or replaced by a conforming use, the land and building thereupon shall be subject to all the regulations as to the use for the zoning district in which such land and building are located as if such nonconforming use had never existed.” Rappahannock County, VA, Part II, General Legislation Chapter 170 Zoning, Article VIII Nonconforming Uses § 170-74 Gen- eral Regulations. Recent Litigation: In two recent cases involving the nonconforming use of a single family home as a rental property, the courts in New Jersey and Utah came to dierent determinations on whether abandonment had occurred based on two very simi- lar fact patterns. 18 Zoning and Land Use Planning 493 20 Some courts have not looked past the presumption of abandonment created by a nonconforming use's statutorily proscribed time period of inactivity. In those courts a show- ing of intent to abandon a nonconforming use is not required when the statutory time period of abandonment is reason- able and specically stated in the ordinance. 19 Other courts have ruled that intent is only important where some force outside the control of the property owner prevents the continuous use of the land in a particular manner. When there is nothing involuntary about the cessation of the nonconforming use, the showing of a landowner's intent to abandon is not required. 20 Courts which follow this two-pronged approach requiring a showing of intent and an overt act or failure to act, have ruled that mere non-use is not sucient to establish the fact of abandonment absent other evidence tending to prove the intent to abandon. 21 According to such reasoning, although the passage of time can create an inference of abandonment there must be the additional showing of an intent to abandon the nonconforming use before the nonconforming use is deemed abandoned. 22 The longer the time of cessation the greater the weight is attributable to that factor, but it can be overcome with evidence of the owner's intent to resume operation and factors which have prevented him/her from continuing operation. 23 A zoning ordinance requiring a proof that a nonconform- ing use was “voluntarily discontinued” for abandonment to occur required proof of a manifest intention to abandon the use coupled with acts or omissions implementing that intent.24 Proof of a previous landowner's decision to dissolve a corporation considered a pre-existing nonconforming use and his choice to cease doing business suciently met this burden, and when coupled with nonuse for a statutorily suf- cient time period equated to abandonment of the noncon- forming use. 25 Attempts to sell a property for uses other than nonconforming uses, statements of the owner not to return to the site in question, and removal of equipment integral to the nonconforming use are all acts that have been found equating to the abandonment of a nonconforming use. 26 Some courts have ruled that the actions and intent of the current or prior landowner are crucial in determining abandonment of a nonconforming use, while the actions and intent of a lessee or future owner are irrelevant. 27 3. Can the Period of Abandonment/Discontinuance be Extended? Remembering that the goal of zoning is to ultimately bring Real Estate Law Journal [Vol. 38:4 2010] 494 21 all parcels into compliance with the allowable uses in the zoning district, it might seem peculiar to discuss whether a municipality can extend the time of abandonment or discon- tinuance of a nonconforming use beyond the time initially set in the local regulation. However, some municipalities, perhaps as a result of negotiation and compromise in the drafting of new zoning regulations, do allow for this possibility. These ordinance provisions should set forth the specic circumstances that must exist for this to occur, as well as describe the process that must be followed for the requesting and granting of this extension. What follows are examples. Example from a zoning ordinance: a. “The Zoning Board of Adjustment may, for good cause shown, extend the period of permitted dis- continuance up to three additional years, provided that application in writing is made to the Board at least 60 days before the commencement date of such three- year additional period.” City of Nashua, NH, Chapter 190, Article XII, sec. 190-122. Recent Litigation: Where the zoning ordinance is very strict regarding the extension of the abandonment period, large scale operations will be aected much more than small ones. Where an injunction prevented the operation of a nonconforming use landll, after the injunction was lifted the landll was not able to become operational quickly enough not to be deemed abandoned under the applicable ordinance. The controlling statute contained no exception for a complex business such as a landll, which required considerable startup and development time for it to be functioning after the injunction was lifted. 28 4. Can an abandoned nonconforming use be re- established? Although municipalities are typically strict in their quest to eliminate nonconforming uses, some jurisdictions provide a mechanism for the re-establishment of the nonconforming uses. The rst example below seems to indicate that the nonconforming uses shall be allowed to continue by special permit. Where there are no conditions on the length of time a special use permit is granted, and since such permit runs with the land, this may in essence convert the nonconform- ing use closer to a more permanent use. Further, should municipalities desire to allow the nonconformity to continue, Zoning and Land Use Planning 495 22 it might be better to either consider granting a use variance if the subject property can meet the statutory test for such, or consider rezoning to allow the use if it is no longer considered oensive. Examples from zoning ordinances: a. “Any nonconforming structure use which has been abandoned or not sued for a period of two years, or more shall not be re-established,except by the granting of a special permit from the Zoning Board of Appeals in accordance with provisions of this ordinance.” Town of Pittseld, MA, Town Code Article 23-8 Non- conformities, Sec. 8.4 Abandonment and Non-Use. b. “In the event that a nonconforming use of any building or place is discontinued for a period of six months, the use of the same shall thereafter conform to the use permitted in the district in which it is located;provided, however, that the Board of Commissioners may permit a continuation of such nonconforming building or premises.” Town of Redington Shores, FL, Charter, Part II, General Legislation Chapter 90 Land Development Regulations Part 5 Zoning, Article XXV District Use Regulations, § 90-114 Nonconforming Uses. (C) Discontinuance of a nonconforming use. Recent Litigation: Where a zoning ordinance stated that once a nonconform- ing use is abandoned, it cannot be reestablished, the opera- tion of a nonconforming use on property pursuant to a special exception was deemed by a court to be abandonment of the nonconforming use. 29 Once the special use permit is granted, it becomes the operative document regarding the permitted uses of the property, and the use of the property is no longer considered a nonconforming use or the time period required for abandonment begins. 30 However, the intent to discontinue a nonconforming use cannot be proven where a municipality forces a property owner to apply for a special use permit for an activity substantially similar to the nonconforming use and where the property owner has no intent to end the nonconforming use. 31 5. Does use of the entire building need to be abandoned to eliminate the nonconformity? Another area that has been the subject of litigation sur- rounds the question of exactly what constitutes a discontinu- ance of use. For example, is it use of the building/structure Real Estate Law Journal [Vol. 38:4 2010] 496 23 for any reason in whole, or just in part? Sometimes munici- palities choose to use the phrase “substantial discontinu- ance” or discontinuance of “substantially all” of the use. The immediate problem is that the ordinances fail to dene the term “substantial,” providing a eld day for negotiation be- tween landowners and the municipality, and ultimately often requiring court intervention due to poor drafting. Examples: a. “Any nonconforming use or portion thereof which becomes unoccupied, unused or discontinued and remains unoccupied, unused or discontinued during any continuous period of twelve (12) months shall be deemed an abandonment of the nonconforming use . . .” City of Harrisburg, PA, Zoning Code 7-302.2 Reversion of Nonconforming Structures, Buildings and Uses. b. “The substantial discontinuance of any nonconform- ing use for a period of one year or more terminates such nonconforming use of a structure or premises, and thereafter said structure shall not be used, except in conformity with provisions of this ordinance.” Town of Islip, NY, Chapter 68 Zoning, Article III, sec. 68-15(B). Recent litigation: In interpreting the Zoning Resolution of the City of New York to determine the appropriate legal standard to deter- mine whether a nonconforming use has been discontinued, the New York Court of Appeals overturned both the trial court and Appellate Division, concluding that substantial— rather than complete—discontinuation of the active, noncon- forming activity forfeits the nonconforming use, and that the good faith of the owner is irrelevant to that determination. 32 Here, Section 52-61 of the Zoning Resolution prohibited continuation of a nonconforming use if, during a two-year period, “the active operation of substantially all the non- conforming uses***isdiscontinued” (emphasis added). The Board of Standards and Appeals found minimal ware- house activity following the complete stoppage of operations for 20 months, and held that this cessation failed to preserve the nonconforming use status. As a result, the Board revoked the building permit that had allowed the petitioner to maintain a nonconforming use on the premises. The Court upheld the Board's determination nding that it was sup- ported by substantial evidence. 6. Are there exceptions to the period of abandon- ment? Most zoning ordinance provisions desire to eliminate Zoning and Land Use Planning 497 24 nonconformities, and therefore leave no opportunity for dis- continuance after the use is abandoned, unintentionally or even involuntarily (e.g., due to an act of god). Occasionally, however, a municipality chooses to overlook, or not count, the period of time that a use was discontinued as a result of certain intervening actions that are not within the control of the property owner. Example from a zoning ordinance: a. “If any portion of the twelve month period of dis- continuance is due solely to re, other casualty, act of God, or action by a governmental jurisdic- tion, including, inter alia, a proposal submitted to City ocials for consideration of either a reuse of or a continuation of the same use of the structure, then such portion of time shall not be counted in the afore- said twelve month period following which noncon- forming use shall be deemed abandoned.” City of Har- risburg, PA, Planning and Zoning Code, 7-703.2(c)(2). Recent litigation: Where a zoning ordinance contained a provision allowing a nonconforming use fraternity to continue so long as the fraternity's privileges were not revoked by the university for more than a year, the revocation of privileges for more than a year immediately expired the nonconforming use. The subsequent lease of the property for use by another fraternity within one year did not function to preserve the nonconform- ing use. 33 7. What constitutes evidence of abandonment? Some zoning regulations provide examples of what evi- dence will be considered to assess whether the use has been abandoned. Examples from zoning ordinances: a. “A nonconforming use shall be presumed abandoned and its right as a nonconforming use extinguished when any of the following has occurred: “(A)If a nonconforming use of a building or land is discontinued, razed, removed or abandoned for 365 consecutive days, subsequent use of such build- ing or land shall conform with the regulations of the district in which it is located. (B)Abandonment shall commence on the date when customary eorts to continue the use cease.” Code of the Borough of Quakertown, PA (Bucks County), Chapter 27 Zoning, Real Estate Law Journal [Vol. 38:4 2010] 498 25 Part 4 General Regulations, § 406. Nonconformities. (Ord. 983, 3/4/1992; § 4.6; as amended by Ord. 1053, 9/1/1999, § II) 5. Abandonment. b. “(C) Continuity of nonconforming uses. No nonconform- ing use may be reestablished after it has been discontin- ued for 12 consecutive months.The vacating of premises or structures or the non-operative status of such premises or structures shall be conclusive evidence of discontinued use.(F) Restoration and repair. (1) Restoration (c)The reconstruction shall start within one year from the time of damage to the structure.” Township of Brecknock, PA, Part II: General Legislation Chapter 110 Zoning, Article III Nonconforming Lots, Uses and Structures, § 110-10 Nonconforming uses and structures. Recent Litigation: As abandonment of a nonconforming use is often a ques- tion of fact, many cases involve landowners arguing the zon- ing board had incorrectly ruled that their nonconforming use was abandoned. Landowners have been able to rebut the presumption of the abandonment of a nonconforming use through the use of adavits and by casting doubt on con- trary evidence. 34 Half-hearted eorts of complying with chronological requirements have not been sucient to rebut the presumption of abandonment. 35 In Zall v. Zoning Board of Appeals of Salisbury,36 the owner of property adjacent to a nonconforming use brought an action seeking to annul a special permit granted to the nonconforming use property owner (defendant) by the zoning board (co-defendant). The special permit authorized the de- fendant to change a prior nonconforming use of its beachfront property from a nightclub to a restaurant. The trial court vacated the board's decision to grant the special permit concluding the defendant had abandoned the nonconforming use. The defendant appealed. The applicable zoning ordi- nance stated that nonconforming uses cease to exist after two years of non-use. Aware that the two-year period set forth in the by-law was about to expire, the defendant made what the judge viewed as a weak eort to open for business in August, 2001. The defendant obtained a temporary ten- day permit to serve “prepackaged food with milk.” However, he did not purchase new goods for sale, and the only food available was several years old. The defendant was on the premises several hours each day during the ten-day period, with the lights on and the door unlocked, but did not make Zoning and Land Use Planning 499 26 any sales. The defendant did not advertise the business or do anything that would put the public on notice that a food establishment had opened. A month later, the defendant threw the items out. The Court did not nd the defendant's actions to be a sucient showing of operation of his business to reverse the trial court's determination that the noncon- forming use was abandoned. As a result, the lower court's decision to vacate the zoning board's decision to grant a special permit to NEBC was armed. 37 8. Can an abandoned use be converted to a less intensive nonconforming use? Typically zoning ordinances provide that abandoned uses may resume or be converted to a less intensive nonconform- ing use. Courts prohibit the conversion back to the more intensive use. 38 Likewise, courts have not allowed the rever- sion to a previously abandoned more expansive nonconform- ing use once it has been abandoned. 39 Where the owner of a prior nonconforming use billboard improperly added lights to the sign, he did not abandon the original nonconforming use. The court ruled that an improper expansion of a nonconforming use does not equate to an overt act of abandonment as the original use was not abandoned. 40 On the other hand, where a nonconforming use deli was converted into a take-out Chinese restaurant which operated beyond the authorization the zoning board granted to the deli, the original nonconforming use was deemed abandoned.41 The subsequent reversion of the property to a deli use was not possible as the court ruled the nonconform- ing use was abandoned by the prolonged improper use as a Chinese restaurant. 42 The sale of alcohol by a restaurant has been considered an accessory use and not an expansion nor a separate and distinct use to a nonconforming restaurant. 43 As such the decision of a previous owner of a nonconforming use to stop serving alcohol for several years did not aect the restaurant's ability to serve alcohol in a restaurant setting.44 IV. Amortization A more active or aggressive method of eliminating non- conforming uses is amortization. This concept has its roots in the early 1915 case of Hadacheck v Sebastian, 239 U.S. 395 where the Court conrmed that the City could eliminate the brickyard use on the property in question without such action necessitating compensation. Amortization has always been a controversial tool, gaining most notoriety perhaps in Real Estate Law Journal [Vol. 38:4 2010] 500 27 the 1960s and 1970s as advocates attempted to use this method to force the removal of billboards along highways. By 1978, governments were prohibited from using amortiza- tion to remove these signs on federally funded highways absent compensation. While few states have specic statu- tory guidance on amortization, the general rule from com- mon law is that the property owner/user must be given enough time to realize a reasonable return on their investment. Although courts approach amortization issues on a case-by-case basis, a balancing test is typically employed to weigh the value to the public in eliminating the use and the harm or private loss suered as a result of the amortization. What follows are examples from local zoning laws and or- dinances demonstrating various approaches to implementing amortization eorts. Readers must keep in mind, however, the need for appropriate balancing. 1. Time for the Nonconforming Use to Conform a. “Any adult arcade, adult bookstore, adult cabaret, adult entertainment establishment, adult motel, or adult mo- tion picture theater, as dened in this Ordinance, in ex- istence at the time of adoption of this Ordinance which violates or does not conform to the provisions hereof (hereafter, a “pre-existing, non-conforming business”) shall conform to the provisions of this Ordinance within a period of three (3) years from said adop- tion of this Ordinance.” City of Jackson, MS, Article XIII, § 1303.03-A. Amortization of Non-conforming Use. b. “Any nonconforming open use of land or any nonconform- ing billboard or advertising structure not attached to a building, but which lawfully existed at the time that this Ordinance became eective,shall be discontinued within ve (5) years from the date of its passage.” Howard County, IN, Ch. 6, § 6.1. Amortization of Nonconforming Uses or Buildings. c. “The lawful use of buildings or land existing at the ef- fective date of this Ordinance which does not conform to the provisions of this Ordinance shall be discontinued within a reasonable period of amortization of the build- ing; uses of buildings and land which become non- conforming by reasons of a change in this Ordinance shall also be discontinued within a reasonable period of amortization of the building. A reasonable period of am- ortization shall be construed to being after the date of adoption of this Ordinance and shall be consid- Zoning and Land Use Planning 501 28 ered to be thirty (30) years for buildings of ordi- nary wood construction, forty (40) years for build- ings of wood and masonry construction, and fty (50) years for buildings of reproof construction.” County of Redwood, MN, § 21(1). Non-conforming Uses. d. “The Board, under authorization of State statute, may provide for the timely modication or removal of a nonconforming structure or use of land.A maximum of a ve (5) year period may be granted in which the nonconforming use shall be modied or removed in order to comply with the General Plan and Zoning Ordinance. The Board may provide for a shorter time period by providing a formula establishing a reasonable time period during which the owner can recover or am- ortize the amount of any investment in the nonconform- ing use or structure, if any.” Layton City, UT, Ch. 19.15.080. Amortization of nonconforming uses. e. “If, after holding public hearings, the Planning Commis- sion determines that the continuance of a nonconform- ing use is detrimental to the health, safety or welfare of a neighborhood, the nonconforming use shall be com- pletely removed or converted to a conforming use within an amortization period prescribed by the City Council. The Planning Commission shall establish conditions for the operation of the nonconforming use during the am- ortization period (not less than 5 years nor more than 40 years, depending upon the impact the nonconforming use has on the surrounding neighborhood).” City of Florence, OR, Title 10, § 10- 8-8. Removal of Nonconforming Uses. f. “The board may require the removal or discontinuance of a nonconforming use in any residential district which does not meet the allowable use standards for the zone in which it is contained. The removal of nonconforming uses may be accomplished only in the following 2 ways: A. Nonconforming signs, temporary structures, open air storage facilities, or parking facilities shall be required to be removed 5 years from the date of this ordinance,when, after a hearing as provided in section 150.023, the commission nds the uses to be inconsis- tent or incompatible with surrounding land uses. B. Nonconforming use in a permanent structure, except as described in section 150.144(D), may only be required to be removed when, after a hearing as provided in section 150.023, the commission nds that the nonconforming use is inconsistent or incompatible with Real Estate Law Journal [Vol. 38:4 2010] 502 29 surrounding land uses, and the nonconforming use is not necessary to the surrounding residential areas in that location. If the commission recommends the use be discontinued, the board is required to give the owner no- tice and serve notice to subsequent owners that the use of the land or structure is to be amortized. The amorti- zation period shall relate to the market value of the property.Any structure having a market value less than $5,000.00 shall be given an amortization pe- riod of 2 to 5 years. Any structure with a market value over $5,000.00 shall be given an amortiza- tion period of not less than 5 years or more than 25 years from the date of the hearing. If the nonconforming structure or use is not removed or discontinued within 6 months of the end of the amortization period, the owner shall be subject to a ne of not more than $500.00 per day or other court action which the village deems necessary. 45 2. Extension of the Nonconforming Use to Conform a.“The City Planning Board may grant an extension of time for continued operation after the conclu- sion of this grace period if the owner of the pre- existing, non-conforming business proves that he is unable to recoup his investment in such enter- prise by that date. In order to secure an extension of time, the owner must submit to the City Plan- ning Board a written request for such extension at least sixty (60) days prior to the expiration of the three (3) year grace period.No application for extension received by the City Planning Board after such time shall be considered. This information shall be supported by relevant documentary evidence such as nancial statements and tax records. Copies of such documentary evidence must be attached to the request for extension, and refusal or failure to provide this in- formation as required shall constitute a waiver of the right to seek an extension of time in which to operate. Such written request shall set forth the following information: a. The amount of the owner's investment in the pre- existing, non-conforming business through the eective date of this Ordinance; b. The amount of such investment that has been or will have been realized at the conclusion of the three- year grace period; Zoning and Land Use Planning 503 30 c. The life expectancy of the existing enterprise; d. The existence or nonexistence of lease obligations, as well as any contingency clauses therein permitting termination of such lease. The City Planning Board shall notify an applicant for an extension of time of the time and place of a hearing to be held on such request before the City Planning Board. After such hearing, the City Planning Board shall issue a written order on the request for extension. If the owner desires to appeal the City Planning Board's order, said appeal may be taken by following the procedures for appeal to the City Council pursuant to the provisions of the Zoning Ordinance of Jackson, Mis- sissippi, as amended. Extensions that are granted shall specify a date certain for closure, and shall not be valid for operation at any other location.” City of Jackson, MS, Article XIII, § 1303.03-A. Amortization of Non- conforming Use. b. “The owner or operator of a nonconforming use may apply to the City Council for an extension of time within which to terminate the nonconform- ing use. An extension shall be for a reasonable pe- riod of time commensurate with the investment involved and shall be approved if the City Council makes all of the following ndings or such other ndings as are required by law: (1) The applicant has made a substantial investment (including but not limited to lease obligations) in the property or structure on or in which the nonconforming use is conducted; such property or structure cannot be readily converted to another use; and such investment was made prior to September 27, 2005. (2) The applicant will be unable to recoup said invest- ment as of November 24, 2006. (3) The applicant has made good faith eorts to recoup the investment and to relocate the use to a location to meet the requirements of this Chapter.” Santa Monica, CA, Ch. 9.44.040. Amortization of nonconforming uses. c. “A nonconforming use due to be terminated pur- suant to this section may be extended upon ap- plication for a special approval for such extension from the Board of Appeals.Such approval shall not be granted unless the applicant establishes and the Board of Appeals nds that, notwithstanding the fteen year period for amortizing a nonconforming use created by the 1991 amendment referred to above, termination Real Estate Law Journal [Vol. 38:4 2010] 504 31 of the nonconforming use would cause serious nancial harm to the property owner not balanced or justied by the advantage to the public in terms of more complete and eective zoning accruing from the cessation of such use. In making this determination the Board shall consider, among other factors (including the factors set forth elsewhere in this chapter relating to the issuance of special permits or approvals), i) the nature of the nonconforming use; ii) the cost of converting to a conforming use; iii) the amount of investment that existed in the property on March 1, 1991, or if the zon- ing change creating the nonconformity was adopted af- ter March 1, 1991, the amount of such investment on the date of such later zoning change; iv) the detriment caused by the nonconforming use; v) the character of the neighborhood; vi) the ability of the landowner to have amortized the cost of the landowner's investment over the period between March 1, 1991 (or such later zoning change date) and the required termination of such use; and vii) whether an additional reasonable amount of time is needed by the owner to amortize the owner's investment. In making its determination the Board shall disregard, as irrelevant, any costs for purchase of a nonconforming building or property or costs to repair, maintain, improve or enlarge a noncon- forming property, incurred after March 1, 1991, or, if the nonconformity was created by a subsequent zoning change, any such costs incurred after such change. If the extension is granted, the Board of Appeals shall set a xed additional period for the extension of time before the nonconforming use must be terminated.” Town of Ithaca, NY, § 270-214. Amortization of certain noncon- forming uses related to pre-1991 residential occupancies. 3. Rebuilding of Damaged Nonconforming Use a. “No structure damaged by re or other causes to the extent of more than triple its assessed value shall be repaired or rebuilt except in conformity with the provi- sions of this Ordinance, provided, however, that this requirement shall not apply with respect to any struc- ture used exclusively for residential purposes.” Howard County, IN, Ch. 6, § 6.1. Amortization of Nonconform- ing Uses or Buildings. b. “No buildings damaged by re or other causes excluding residences and farm buildings, to the extent that their restoration will cost more than sixty (60) percent of Zoning and Land Use Planning 505 32 their fair cash value shall be repaired or rebuilt except to conform to the provisions of this ordinance.” Logan County, IL, § 9.4. Amortization of Nonconforming Uses or Buildings. c. “Structures incurring damage of less than 50 percent (50%) of fair market value above the foundation may be restored, reconstructed and used as before, provided that such restoration is commenced within six (6) calendar months from the date damages were incurred. If reconstruction is not commenced within six (6) months, the use of said land or structure shall thereaf- ter conform with the provisions of this Ordinance. Fair market value shall be determined by reference to cur- rent statutory provisions pertaining to real estate as- sessment and the records of the county assessor.” City of Snellville, GA, Article V, § 5.7. Amortization and Discontinuance. V. Conclusion A substantial portion of the litigation surrounding nonconforming uses could be avoided with better drafting of zoning ordinance provisions. Areas that have attracted a sig- nicant amount of nonconforming use litigation involve abandonment or discontinuance of use and amortization. Property owners are typically not anxious to give up the property interest that accrues from nonconforming use status. Sometimes property owners are not aware of the specic regulations governing their nonconforming use, other times, the use may have inadvertently ceased for the requisite period of time. Still, often disagreements result from ambiguities in the regulations themselves. Attorneys who nd themselves in a position to assist municipalities with the drafting of nonconforming use provisions should be mindful of the pitfalls in failing to specify exact desires of the municipal client in dealing with such uses. Practitioners whose clients desire to challenge vague and ambiguously worded provisions may be pleasantly surprised at the body of caselaw that has developed that may support these posi- tions, as well as the wealth of examples available from other jurisdictions that could be used to demonstrate more specic and clearer language for addressing municipal desires. NOTES: 1Patricia E. Salkin, American Law of Zoning, vol. 2, sec. 12-7 Real Estate Law Journal [Vol. 38:4 2010] 506 33 (Thomson Reuters/West 5th ed. 2009). 2Patricia E. Salkin, American Law of Zoning, vol. 2, sec. 12-7 (Thomson Reuters/West 5th ed. 2009). 3Patricia E. Salkin, American Law of Zoning, vol. 2, sec. 12-7 (Thomson Reuters/West 5th ed. 2009). 4Patricia E. Salkin, American Law of Zoning, vol. 2, sec. 12-7 (Thomson Reuters/West 5th ed. 2009). 5Stuart Meck, Growing Smart Legislative Guidebook vol. 2, sec. 8-111 (American Planning Association 2002 ed. Jan. 2002). 6See, V. Gail Easley and David A. Theriaque, “Distinguishing Between Detrimental and Benign Nonconformities,” Zoning Practice (American Planning Association, November 2009). 7Patricia E. Salkin, American Law of Zoning, vol. 2, sec. 12-10 (Thomson Reuters/West 5th ed. 2009). 8Patricia E. Salkin, American Law of Zoning, vol. 2, sec. 12-10 (Thomson Reuters/West 5th ed. 2009). 9Patricia E. Salkin, American Law of Zoning, vol. 2, 12-233 to 12-235 (Thomson Reuters/West 5th ed. 2009). 10Patricia E. Salkin, American Law of Zoning, vol. 2, 12-233 to 12-235 (Thomson Reuters/West 5th ed. 2009). 11Karas v. Foss, 2008 WL 859504 (N.J. Super. A.D., 2008) (citing S & S Auto Sales, Inc. v. Zoning Bd. of Adjustment for Borough of Stratford, 373 N.J. Super.603, 613 (App. Div. 2004)) citing Borough of Saddle River v. Bobinski, 108 N.J. Super.6, 16–17 (Ch. Div. 1969). 12Karas v. Foss, 2008 WL 859504 (N.J. Super. A.D., 2008) (citing S & S Auto Sales, Inc. v. Zoning Bd. of Adjustment for Borough of Stratford, 373 N.J. Super.603, 613 (App. Div. 2004) citing Borough of Saddle River v. Bobinski, 108 N.J. Super.6, 16–17 (Ch. Div. 1969). 13Karas v. Foss, 2008 WL 859504 (N.J. Super. A.D., 2008) (citing S & S Auto Sales, Inc. v. Zoning Bd. of Adjustment for Borough of Stratford, 373 N.J. Super. 603, 613 (App. Div. 2004) (citing Villari v. Zoning Bd. of Adj. of Deptford, 277 N.J. Super.130, 137 (App. Div. 1994)). 14Edward H. Ziegler, Jr., Rathkopf's The Law of Zoning and Planning, 4 RLZPN § 74:3 (2009). 15Edward H. Ziegler, Jr., Rathkopf's The Law of Zoning and Planning, 4 RLZPN § 74:3 (2009). 16Edward H. Ziegler, Jr., Rathkopf's The Law of Zoning and Planning, 4 RLZPN § 74:3 (2009). 17Edward H. Ziegler, Jr., Rathkopf's The Law of Zoning and Planning, 4 RLZPN § 74:3 (2009). 18Euneva v. Keansburg Planning Board of Adjustment, (PDF COPY of opinion), Superior Court of New Jersey, Monmouth County, (Decided: November 5, 2008 & Approved for Publication: May 26, 2009), and Vial v. Provo City, 2009 UT App 122 (Utah Ct. App. 2009). 19McKenzie v. Town of Eaton Zoning Board of Adjustment, 154 N.H. 773 (N.H. 2007), and Village of Waterford v. Amna Enterprises, Inc., 27 A.D. 3d 1044 (N.Y. App. Div. 2006), and Sun Oil Co. of PA v. Board of Zoning and Land Use Planning 507 34 Zoning Appeals of the Town of Harrison, 57 A.D.2d 627 (N.Y. App. Div. 1977). 20City of Red Bank v. Phillips, 2007 WL 4460223 (Tenn. Ct. App. 2007). 21Ghindia v. Buckeye Land Development, LLC., 2007 Ohio App. LEXIS 694, **12 (Ohio Ct. App., 2007). 22Karas v. Foss, 2008 WL 859504 (N.J. Super. A.D., April 2, 2008). 23S&S Auto Sales, Inc. v. Zoning Board of Adjustment for the Borough of Stratford, 373 N.J. Super. 603, 624. (N.J. Super. Ct. App. Div. 2004). 24Ghindia v. Buckeye Land Development, LLC., 2007 Ohio App. LEXIS 694, **12 (Ohio Ct. App., 2007). 25Ghindia v. Buckeye Land Development, LLC., 2007 Ohio App. LEXIS 694, **12 (Ohio Ct. App., 2007). 26Pezzullo v. Ure, 2008 R.I. Super. LEXIS 167, *18 (R.I. 2008). 27Face Value, LLC v. Zoning Board of Appeals of Town of East Hartford, 2008 Conn. Super. LEXIS 2931 (Conn. Super. Ct. 2008), Karas v. Foss, 2008 WL 859504 (N.J. Super. A.D., April 2, 2008), Gem City Metal Spinning Co. v. City of Dayton Board of Zoning Appeals, 2008 WL 185535 (Ohio Ct. App. 2008), Palmieri Cove Associates v. City of New Haven Board of Zoning Appeals, 2006 Conn. Super. LEXIS 848 (Conn. Super. Ct. 2006). 28Custom Land Development, Inc. v. Coopertown Board of Zoning Appeals, 168 S.W.3d 764, 775 (Tenn. Ct. App. 2004). 29Purich v. Draper Properties, Inc., 395 Md. 694 (2006). 30Smith Bros. Woodland Management, LLC v. Zoning Board of Appeal of Town of Brookeld, 108 Conn. App. 621 (Conn. App. Ct. 2008), Purich v. Draper Properties, Inc., 395 Md. 694 (2006). 31Greer v. Washougal Motorcross, LLC., 2007 Wash. App. LEXIS 497, *11 (Wash. Ct. App. 2007). 32Toys R Us v. Silva, 89 N.Y.2d 411, 676 N.E.2d 862, 654 N.Y.S.2d 100 (1996). 33Schweizer v. Board of Adjustment of City of Newark, 2009 WL 597630 (Del. 2009). 34Bialik v. Stambaugh Township, 2008 WL 1885772 (Mich. Ct. App. 2008), and Finn v. Zoning Hearing Board of Beaver Borough, 869 A.2d 1124 (Pa. Commw. Ct. 2005). 35Zall v. Zoning Board of Appeals of Salisbury, 73 Mass. App. Ct. 1103 (Mass. App. Ct. 2008). 36Zall v. Zoning Board of Appeals of Salisbury, 73 Mass. App. Ct. 1103 (Mass. App. Ct. 2008). 37Zall v. Zoning Board of Appeals of Salisbury, 73 Mass. App. Ct. 1103 (Mass. App. Ct. 2008). 38Taylor v. Zoning Board of Appeals of City of Evanston, 375 Ill. App. 3d 585 (Ill. App. Ct. 2007). 39Town of Orange v. Shay, 68 Mass. App. Ct. 358 (Mass. App. Ct. 2007). Real Estate Law Journal [Vol. 38:4 2010] 508 35 40Pallco Enterprises, Inc. v. Denton Beam, 132 Cal. App. 4th 1482, 1498 (Cal. App. Dep't Super. Ct. 2005). 41Gorgone v. District of Columbia Board of Zoning Adjustment, 2009 D.C. App. Lexis 179 (2009). 42Gorgone v. District of Columbia Board of Zoning Adjustment, 2009 D.C. App. Lexis 179 (2009). 43City of Okoboji v. Okoboji Barz, Inc., 746 N.W.2d 56 (Iowa 2008). 44City of Okoboji v. Okoboji Barz, Inc., 746 N.W.2d 56 (Iowa 2008). 45Mt. Zion Code sec. 150.146 (1999). Zoning and Land Use Planning 509 36 Department of Community & Economic Development Ross Polerecky, Director McHenry Municipal Center 333 Green Street McHenry, Illinois 60050 Phone: (815) 363-2182 Fax: (815) 363-2173 rpolerecky@ci.mchenry.il.us The City of McHenry is dedicated to providing the citizens, businesses and visitors of McHenry with the highest quality of programs and services in a customer-oriented, efficient and fiscally responsible manner. Community Development Committee Agenda Supplement DATE: February 26, 2021 TO: Community Development Committee FROM: Ross Polerecky, Director of Community Development RE: Business license discussion Attached: Historic data from city business license program Background: The Community Development Department is in the process of updating many zoning and municipal code sections. Recently all business licenses have been transferred to the city clerk’s office for processing, the transfer and review of the business license program has brought about many questions as to why the city still requires some licenses and if it is efficient for the city to require these licenses. Analysis: Attached is historic data from the city’s business license program, the amount of money collected on these licenses is very minimal and more than likely does not cover the staff time required to process these licenses. The goal is to review the licenses and determine if there is a legitimate reason for each license, if not staff would like to eliminate the licensing from the municipal code. Staff Recommendation: Staff is looking for direction on eliminating some business licensing within our municipal code. Some of the licensing is redundant meaning multiple jurisdictions require a license, this is true with all food handling operations where the McHenry County Department of Health oversees the food operation. Other outdated licenses looking to eliminate include milk delivery and coin operated machines. 37 Amusements Current Number of License Holders: 1 (McHenry Indoor Theater) Projected Income: $80 Code: 4-4-2: LICENSE REQUIRED: It shall be unlawful to conduct or operate any amusement which is open to the public, and for admission to which a fee is charged, without having first secured a license therefor; provided, that the provisions of this section shall not be held to apply to those amusements which are specifically licensed by any other provision of this Code or by any other ordinance of the City. (1987 Code § 5-2) 4-4-3: APPLICATION FOR LICENSE: Applications for licenses as provided herein shall be made to the City Clerk as in other cases of application for licenses and permits, and all applicants shall conform with the general provisions set forth in chapter 1 of this title. (1987 Code § 5-3) 4-4-4: FEES FOR LICENSE: The following fees shall be prerequisites for securing licenses under this chapter: Athletic exhibitions for profit $25.00 per day Billiard and pool halls $5.00 per table - annual fee Bowling alleys $5.00 per alley - annual fee Carnivals $100.00 per day Circuses 25.00 per day Exhibitions 5.00 per day Motion pictures and theatricals 80.00 annual fee Public dance halls 50.00 annual fee Skating rinks 50.00 annual fee 38 Carnivals Carnivals actually fall under Amusements and has additional language. We believe it is wise to keep the carnivals licensed, as they undergo background checks and building permit requirements. 4-4-7: CARNIVALS AND CIRCUSES: A.Definitions: For the purposes of this section, terms shall have the following meaning: CARNIVAL: A traveling amusement show usually including rides, sideshows and games of skill. CIRCUS: A traveling company consisting typically of a variety of performances by acrobats, clowns, and trained animals. B.Building Permit Required: A building permit is required for a carnival or circus, as defined in subsection A of this section. Such permit shall not be issued without first obtaining approval by the City Council with any conditions attached as the City Council deems appropriate to protect the health, safety and welfare of the public. C.Application: Not less than forty five (45) calendar days before the carnival or circus, a building permit application shall be submitted to the Community Development Department, which shall include: 1.A site plan showing the layout of the event, including rides, tents, trailers, overnight quarters for security personnel (if applicable), and all wires, lines, cables, etc. 2.Certificate of insurance for a minimum two million dollars ($2,000,000.00) general liability, including bodily injury, property damage and motor vehicle liability, naming the City as an additional insured. A letter from the insurer stating there are no outstanding claims against the policy. 3.The filing fee, which is fifty dollars ($50.00) for each day the event will run. Said fee may be waived for City based not for profit organizations that submit a copy of their certificate of incorporation. 4.A letter of consent from the property owner if the event will be held on private property or a letter to the City Council requesting the use of public property. 5.Information on all proposed signs for the event, including number, size and location. 6.Copy of the McHenry County temporary food service permit, if applicable. D.Other Limitations: 1.The carnival or circus shall not exceed ten (10) days. 2.The carnival or circus shall not be located in or directly adjacent to any developed residential area, with the exception that it may be on a church, school or public park property even if located next to residential property. 3.The event must be operated or sponsored by a not for profit organization based in the City. 4.No private property location may host more than one carnival or circus per year. 39 5. No employee, agent or other representative of the carnival/circus may live, sleep or otherwise remain overnight on the premises of the carnival. Persons providing security on the site may receive an exemption from this requirement, upon approval by the City Council. 6. All carnival/circus workers must keep government issued photo identification on their person at all times during the public event. The government issued identification must be presented at any time to an officer of the City upon request. 7. Only those carnival/circus employees who have completed a background check through the Police Department will be permitted to work on the premises. The background check is valid for the calendar year in which it is conducted and is subject to review after the initial approval. No person will be allowed to work the event if he/she: a. Is a registered child sex offender; or b. Has been convicted of a felony in the past five (5) years; or c. Has been convicted of any other crime involving moral turpitude or violence; or d. Is identified as a known gang member in the Illinois State Police LEADS System; or e. Is deemed unfit for any reason by the Police Department. E. Additional Submittals: 1. Copy of an Illinois Department of Labor amusement ride permit. 2. List of employees who will work on the premises of the carnival/circus, including their legal name, date of birth, home address and social security number. 3. All registered employees shall submit their fingerprints along with a completed police background authorization form. The fee for this service shall be five hundred dollars ($500.00) plus fifty dollars ($50.00) for each employee. Volunteers for local not for profit organizations shall be exempt from fingerprinting. 4. Signed waivers of liability for all employees who will work on the premises of the carnival/circus. 5. Completed City carnival operator questionnaire, if required by the City. F. Inspections: Any City official shall have free access to the carnival/circus grounds and all booths, shows and concessions at all times to ensure compliance with City, County and State ordinances and regulations. G. Revocation: The City may revoke a permit or carnival worker permit at any time and demand immediate cessation of the carnival/circus when it is found to be in violation of City, County or State ordinances and regulations or when public safety is endangered. 40 Coin Operated Devices Current number of licensed holders: 23 Current number of licenses: 53 Projected income: $2650 Regulation: The State of Illinois already licenses and regulates these. NAME PROPERTY ADDRESS ZIP CODE AMOUNT # MACHINES After the Fox PO Box 1218 $100.00 2 Alex's Drive In 3709 W. Elm St. $50.00 1 Foxhole Tap & Pizzeria 3308 W. Elm St. $50.00 1 The Gambler 1232 N. Green St. $250.00 5 Just For Fun Roller Rink 914 N. Front St. Liberty Club, NFP 1304 N. Park St. $50.00 1 Linda's Attic dba Main Street Saloon 3914 W. Main St. Meijer Store #218 2253 N. Richmond Rd $50.00 1 Millstream Coin Wash 1304 N. Front St. $100.00 2 Steak & Shake #339 2100 N. Richmond Rd. $100.00 2 VFW/Veterans Club, Inc. 3002 W. Elm Street $50.00 1 Vicki's Place 1211 N. River Rd. $50.00 1 Corner Tap 3901 W. Main St. Buffalo Wild Wings 3343 Shoppers Drive $150.00 3 My Place Bar and Grill 4621 W. Elm Street $200.00 4 Epic Deli 2616 Schaid Court $500.00 10 Buddyz 1138 Green Street $100.00 2 Chen Asian Café 4117 W Shamrock Ln $100.00 2 Corkscrew Pointe 1402 N Riverside Dr $450.00 9 Metalwood Grill (McHenry Country Club) 820 N John Street $50.00 1 3 Queens 810 Front Street $150.00 3 Jexal's Wingzeria 1260 N Green Street $50.00 1 American Legion 1331 N Riverside Dr $50.00 1 $2,650.00 53 Code: 4-5-1: DEFINITIONS: As used in this chapter: ELECTRONIC SWEEPSTAKES MACHINE OR DEVICE: A mechanically, electrically or electronically operated machine or device, that is owned, leased or otherwise possessed by a sweepstakes sponsor or 41 promoter, or any of the sweepstakes sponsors or promoters partners, affiliates, subsidiaries or contractors, that is intended to be used by a sweepstakes entrant, that uses energy, and that is capable of displaying information on a screen or other mechanism. ENTER OR ENTRY: The act or process by which a person becomes eligible to receive any prize offered in a sweepstakes. ENTERTAINING DISPLAY: A visual information capable of being seen by a sweepstakes entrant that takes the form of actual game play or simulated game play, including, but not limited to, a poker game or any other kind of playing card game; a bingo game; a craps game; a keno game; a lotto game; an eight-liner game; a pot-of-gold game; a game based on or involving the random or chance matching of different pictures, words, numbers of symbols not dependent on the skill or dexterity of the player; a casino or gambling game; and any other video game the outcome of which is not in whole or in part dependent on the skill or dexterity of the player that is played in the course of revealing a prize as a result of an entry into a sweepstakes. JUKE BOX: Any music vending machine, contrivance or device which, upon the insertion of a coin, slug, token, plate, disc or key into any slot or other opening, or by the payment of any price, operates or may be operated, for the emission of songs, music or similar amusement. MECHANICAL AMUSEMENT DEVICE: Any machine which, upon the insertion of a coin, slug, token, plate or disc, may be operated by the public generally for use as a game, entertainment or amusement, whether or not a prize is offered, and whether or not skill in manipulation predominates over chance or luck. It shall include such devices as marble machines, skill ball, pinball machines, mechanical grab machines and all games, operations or transactions similar thereto under whatever name they may be indicated. PRIZE: Any gift, award, gratuity, goods, service, credit or anything else of value, which may be transferred to a person, whether possession of the prize is actually transferred or placed on an account or other record as evidence of the intent to transfer the prize. SWEEPSTAKES: Any game, advertising scheme or plan, or other promotion which, with or without payment of any consideration, a person may enter to win or become eligible to receive any prize, the determination of which is based upon an element of chance. (Ord. 19-1191, 4-15-2019) 4-5-2: LICENSE REQUIRED: Any person displaying for public patronage or keeping for operation any juke box or mechanical device, as defined in section 4-5-1 of this chapter, shall be required to obtain a license from the City, upon payment of a license fee and upon application, inspection and issuance of such license as provided in chapter 1 of this title; not for profit corporations shall, however, be exempt from the payment of the license fee. The regulations and requirements of this section shall not apply to video gaming terminals authorized and licensed by the State of Illinois pursuant to the Illinois Video Gaming Act and its rules, and chapter 6 of this title. (1987 Code § 9-2) 4-5-3: INVESTIGATION: The Chief of Police shall investigate the location wherein it is proposed to operate such machine, ascertain if the person is of good moral character, and report their findings to the City Clerk. 42 (Ord. 19-1186, 2-18-2019) 4-5-4: FEES FOR LICENSE: A. Juke Box, Mechanical Amusement Device: The annual license fee for each juke box or mechanical amusement device shall be fifty dollars ($50.00) per each juke box and fifty dollars ($50.00) per each mechanical amusement device for the first twenty (20) mechanical amusement devices at one location. B. Arcade License Fee: An arcade license fee covering all mechanical amusement devices at one location in excess of twenty (20) devices shall be two hundred dollars ($200.00), and shall be reviewed annually. (1987 Code § 9-5) 4-5-5: TERM OF LICENSE; DISPLAY: The licenses required by this chapter shall expire on April 30 of each year. The City Clerk shall furnish a license issued hereunder, which shall be displayed on the premises at all times. (1987 Code § 9-6) 4-5-6: APPROVAL OF ELECTRICAL DEVICES: Any device incorporating electrical equipment shall bear the underwriters seal of approval and shall not be licensed or permitted to operate until this shall have been ascertained. (1987 Code § 9-4) 4-5-7: NUMBER OF LICENSES: A. Permitted: No more than four (4) mechanical amusement devices used as games may be licensed for use at any given business location in the City during any license year; provided, however, that additional licenses may be issued for use at any such location if the gross revenues from such devices at such location does not at any time exceed twenty five percent (25%) of the licensee’s gross revenues from the sale of other services, goods or products at such location. (1987 Code § 9-8) B. When Number Unlimited: 1. In addition to the licenses authorized by subsection A of this section, an unlimited number of mechanical amusement devices may be licensed for use at one business location within the City during any business year; the following rules and regulations apply to such business operation: a. It shall be unlawful to permit the premises to remain open between the hours of twelve o’clock (12:00) midnight and ten o’clock (10:00) A.M. Within fifteen (15) minutes after the legal hour for closing, all customers shall be off the premises. b. No food or beverages of any kind shall be sold on the premises. c. It shall be unlawful to possess or consume alcoholic beverages on the premises. d. Children of school age (whether enrolled in school or not) shall not be permitted on the premises during regular school hours, including lunch times and recesses. e. No person under the age of sixteen (16) years shall be permitted on the premises at any time unless supervised by an adult person at such business location. 43 f. No person who is subject to the curfew laws of the State of Illinois or to the curfew ordinances of the City, shall be permitted to remain on the premises later than fifteen (15) minutes prior to the time that such curfew goes into effect. 2. No license may be issued under the provisions of this subsection B unless the location at which such license is to be used is first approved by formal action of the Mayor and City Council. Any person or entity who obtains any license under the provision of this subsection B thereby acknowledges that the Mayor and City Council may, in their sole discretion, repeal this subsection B in its entirety, and also that the annual renewal of any such license shall not be construed as a vested right, but shall be subject to the sole discretion of the Mayor and City Council. No person or entity obtaining any license hereunder may sell or dispose of any such license. (1987 Code § 9-9) 4-5-8: GAMBLING DEVICES PROHIBITED: Nothing in this chapter shall in any way be construed to authorize, license or permit any gambling device whatsoever, or any mechanism that has been judicially determined to be a gambling device, or in any way contrary to law, or that may be contrary to any future laws of the State of Illinois, except video gaming terminals licensed by the City and State of Illinois and chapter 6 of this title. (1987 Code § 9-7) 4-5-9: ELECTRONIC SWEEPSTAKES MACHINES OR DEVICES PROHIBITED: It shall be unlawful for any person to own, lease, operate or place into operation an electronic sweepstakes machine or device in any location open to the public within the City for the following purposes: A. To conduct a sweepstakes through the use of an entertaining display including the entry process or the reveal of a prize; or B. To promote a sweepstakes that is conducted through the use of an entertainment display including the entry process or the reveal of a prize. (Ord. 19-1191, 4-15-2019) 4-5-10: VIDEO GAMING TERMINALS - NOT PROHIBITED: Nothing contained in this chapter shall be construed as prohibiting duly licensed video gaming terminals as authorized by chapter 6 of this title. (Ord. 19-1191, 4-15-2019) 4-5-11: VIOLATION; PENALTY: Any person violating any provision of this chapter shall be fined not less than two hundred fifty dollars ($250.00) nor more than seven hundred fifty dollars ($750.00) for each offense. Each machine or device found to be in violation, and each day such violation occurs or continues, shall constitute a separate and distinct offense. 44 Food Deliveries Current number of licensed holders: 5 Projected income: $250 Regulation: The McHenry County Health Department already licenses and regulates these. NAME ADDRESS CITY STATE ZIP CODE AMOUNT Tropical Chill 4816 Inmans Way Ringwood IL 60072 $50.00 Schwan's Home Service, Inc. P.O. Box 178 Marshall Minnesota 56258 $50.00 Klondike Distribution 410 Sheridan Road Racine WI 53403 $50.00 Polar Bear Ice Cream 77 Jack Frost Lane #4 Fox Lake IL 60020 $50.00 Kona Ice of McHenry County 8485 Pyott Road Lake In The Hills IL 60156 $50.00 $250.00 Code: 5-5-1: LICENSE REQUIRED: It shall be unlawful to use or permit the use of any vehicle, including wagons, motor vehicles and vehicles propelled by human power, for the storage or carrying of any meat, poultry, fish, lard, vegetables, bread or bakery products, or any other provisions intended for human consumption, including beverages other than milk, in the City for the purpose of delivering any such foodstuffs to any place in the City for sale and consumption at the place delivered, unless a license for such vehicle is first secured and the provisions of this chapter are fully complied with. (1987 Code § 11-61) 5-5-2: APPLICATION FOR LICENSE; FEE: A. Submittal; Issuance: Applications for licenses required by this chapter shall be made to the City Clerk under the provisions generally applicable as set forth elsewhere in this Code, and such applications shall recite the names of the persons making such deliveries and the nature of the goods carried. The Clerk shall issue such licenses if requirements have been satisfied, and shall maintain a list of all such licenses issued. B. Fee: The annual fee for such licenses, per vehicle, shall be fifty dollars ($50.00) per year. (1987 Code § 11-62) 5-5-3: EXEMPTION FROM FEE: No license fee shall be required for any vehicle used to deliver foodstuffs as hereinabove set forth, from any establishment which is licensed and inspected as a food dealing establishment in the City; but all provisions of this chapter, other than that providing for the payment of a fee, shall be complied with in connection with such vehicles. (1987 Code § 11-63) 5-5-4: INSPECTIONS: 45 It shall be the duty of the Health Department to make or cause to be made such inspections as may be necessary to ensure compliance with the provisions of this chapter. (1987 Code § 11-65) 5-5-5: SANITATION REQUIREMENTS: A. Sanitary Vehicles: All vehicles used in food deliveries shall be kept in a clean and sanitary condition and shall be thoroughly cleaned each day they are so used. It shall be unlawful to permit any stale food, decaying matter, or any other waste material or product to accumulate in or on any such vehicle while it is so used. B. Unwrapped Foodstuffs: If unwrapped foodstuffs are transported in any such vehicle, such goods shall be carried in a portion or compartment of the vehicle which is cleaned and protected against dust and insects. (1987 Code § 11-66) 5-5-6: REVOCATION OF LICENSE: Any license issued under the provisions of this chapter may be revoked by the City for any violation of any section or regulation hereof, and such revocation shall be in addition to any fine imposed. 46 Milk Delivery Current number of licensed holders: 0 Projected income: $0 Regulation: The McHenry County Health Department already licenses and regulates these. 5-4-1: APPLICABILITY: All milk and milk products controlled by the provisions of this chapter shall be those as defined in the Illinois Food, Drug and Cosmetic Act and as shall be subsequently amended. (1987 Code § 11-49) 5-4-2: ENFORCEMENT: A. Health Department: This chapter shall be enforced by the Health Department in accordance with applicable interpretations thereof contained in the Illinois Compiled Statutes, as amended, pertaining to the regulation of dairy products, an official copy of which shall be on file in the McHenry County Health Department, except that in case any provisions or part of this chapter does not meet the minimum requirements of the State law, then the requirements of the State law shall apply only to that provision or part thereof so affected. B. Interpretations: The Health Department is further authorized to enforce any part of this chapter which may not be covered by either said Code or State law, by applying interpretations thereof which are necessary to safeguard the public health. (1987 Code § 11-50) 5-4-3: LICENSE FOR MILK DEALERS, MILK DELIVERY VEHICLES: A. License Required: It shall be unlawful for any person to engage in the business of a milk dealer within the City or to operate a milk delivery truck in the City for delivery of milk to any location within the City without first securing an annual license to do so. The annual fee for such license shall be two hundred dollars ($200.00) for each delivery truck and milk dealership. The application for such license shall comply with the general regulations for license applications as set forth in this Code. B. Exception: No annual license shall be required if the activity sought hereunder to be licensed is subject to the City Sales Tax. (1987 Code § 11-51) 5-4-4: STANDARDS: It shall be unlawful to sell or offer for sale within the City, any milk or milk product which shall not have been produced and maintained until delivery in compliance with the Grade A milk statute of the State of Illinois and which is not labeled or branded as being in conformity with all State of Illinois Grade A requirements or which is not produced, processed, delivered and sold by a person, firm or corporation subject to health control of an area or municipality approved by the State of Illinois, Department of Health, Division of Foods and Dairies. (1987 Code § 11-52) 5-4-5: PENALTY: 47 Any person, firm or corporation violating any provision of this chapter shall be fined not less than twenty five dollars ($25.00) nor more than five hundred dollars ($500.00) for each offense committed on each day during, or on which, a violation occurs or continues. 48 Restaurants Current number of licensed holders: 41 Projected income: $1230 Regulation: The McHenry County Health Department already licenses and regulates these. Name Alex's Drive In Burger King #2179 Burger King #12090 China House Restaurant Chipotle Mexican Grill Dairy Queen Dunkin Donuts/Baskin Robbins Dunkin Donuts Dunkin Donuts Grand Buffet Happy Jack's IHOP Jimmy John's LaRose Ent, Inc d/b/a Subway Little Chef Restaurant Long John Silvers Main Street Café McDonald's - Route 120 Bear McDonald's - Route 31 Bear Panera Bread Steak N Shake #339 Subway Taco Bell Taco & Burrito Express Tommy's Red Hots Wendy's Panda Express #2048 Kiera's Confection Great China McDonald's - Richmond Road Bear New China Town Inc. Domino's Pizza #2859 FQSR, LLC dba KBP FOODS Jimano's Pizza Main Street Café Starbuck's Starbuck's Jersey Mike's Subs Main Street Café MCHCR ENTERPRISES, INC./Culvers of McHenry Popeye's of McHenry 49 Code: 5-6-1: DEFINITIONS: The following definitions shall apply in the interpretation and enforcement of this chapter: EMPLOYEE: Any person who handles food or drink during preparation or serving, or who comes in contact with any eating or cooking utensils, or who is employed in a room in which food or drink is prepared or served. FOOD: All articles used for food, drink, confectionery or condiment, whether simple, mixed or compound, and all substances or ingredients used in the preparation thereof. HEALTH DEPARTMENT: A duly appointed Health Officer of the McHenry County Health Department, or their authorized representative. ITINERANT RESTAURANT: A restaurant operation which does not have a permanent business address in the City and which pays no Sales Tax to the City, and which operates for a temporary period in connection with a fair, carnival, circus, public exhibition, or other similar gathering. RESTAURANT: Any restaurant, coffee shop, cafeteria, short order café, luncheonette, tavern, sandwich stand, drug store and soda fountain serving food, and all other eating or drinking establishments, as well as kitchens or other places in which food or drink is prepared for sale elsewhere. UTENSILS: Any kitchenware, tableware, glassware, cutlery, utensils, containers, or other equipment with which food or drink comes in contact during storage, preparation, or serving. (1987 Code § 11-36; amd. Ord. 19-1186, 2-18-2019) 5-6-2: ENFORCEMENT INTERPRETATION: This chapter shall be enforced by the Health Department in accordance with the interpretations thereof contained in the most current edition of the U.S. Public Health Service Food Service Sanitation Manual, a copy of which shall be on file at the McHenry County Health Department; provided, however, that should any provision, item or part thereof fail to meet the minimum requirements of State law, the requirements of said State law shall apply only to that provision, item or part. (1987 Code § 11-37) 5-6-3: HEALTH DEPARTMENT PERMIT; POSTING; SUSPENSION, REVOCATION: A. Permit Required; Posting: It shall be unlawful for any person to operate a restaurant in the City who does not possess an unrevoked permit from the Health Department. Such permit shall be posted in a conspicuous place. Only persons who comply with the requirements of this chapter shall be entitled to receive and retain such a permit. A person conducting an itinerant restaurant shall be required to secure a permit. B. Suspension, Revocation: Such a permit may be temporarily suspended by the Health Department upon the violation by the holder of any of the terms of this chapter, or revoked after an opportunity for a hearing by the Health Department upon serious or repeated violation. (1987 Code § 11-38) 5-6-4: FEES FOR PERMIT: Every applicant for a permit to operate a restaurant or itinerant restaurant shall pay to the City a fee or fees for each such establishment in accordance with the following schedule: 50 Restaurants, annually $30.00 Itinerant restaurant, for each period of 5 days or less 50.00 The foregoing fees shall not be prorated. (1987 Code § 11-39) 5-6-5: FEE EXEMPTIONS FOR NONPROFIT ORGANIZATIONS: The provisions of section 5-6-4 of this chapter shall apply to all restaurants and itinerant restaurants operated by fraternal organizations, service clubs, religious, educational and charitable institutions; provided, however, these organizations shall be exempt from the payment of any permit fees; and provided, further, that said organizations are maintained not for profit and the service rendered is confined to members of the organizations and their guests. 51 Food Dealer Current number of licensed holders: 25 Projected income: $750 Regulation: The McHenry County Health Department already licenses and regulates these. NAME PROPERTY ADDRESS Dollar Tree Store, Inc. 4322 W. Elm Street General Nutrition Ctr. #3660 1774 N. Richmond Road Goodwill of Northern Illinois 2006 N. Richmond Road Jo-Ann Fabric Store 3310 Shoppers Drive Just For Fun Roller Rink 914 Front Street La Michoacana 4334 W. Elm Street Little Caesars 4320 W. Elm Street McHenry Quik Shop 4416 W. Elm Street Meijer Gas Station #218 2149 N. Richmond Rd. Michael's Stores, Inc. #2717 2244 N. Richmond Rd. Nature's Cornucopia 1717 N. Richmond Rd. Papa John's 3804 W. Elm Street Papa Saverios 1777 N. Richmond Rd. Riverside Bake Shop, Inc. 1309 N. Riverside Drive Riverside Chocolate Factory 2102 W. Route 120 Rosati's Pizza McHenry 4802 W. Elm Street Specialty Managements, LLS 2461 Richmond Road Lesley's Bakery 1214 N. Green Street Ross Dress for Less 3328 Shoppers Drive Five Below 3414 Shoppers Drive Transmisora Azteca, Inc. 3724 W. Elm Street McHenry Downtown Theatre 1208 N. Green Street The Olive Branch Gourmet Foods 1222 N. Green Street Old Town Pizza 514 S. Route 31 Papa John's Pizza PO Box 470365 Code: 5-3-1: DEFINITIONS: The following words and phrases used in this chapter shall have the following meanings unless a different meaning clearly appears from the context: FOOD: Shall be construed to include beverages. 52 FOOD DEALER: Shall be construed to mean and include every person engaged in the business of selling food at retail for human consumption, either on or off the premises where sold. (1987 Code §§ 11-16, 11-17) 5-3-2: ENFORCEMENT: The County Health Department shall, by agreement with the City, be responsible for the enforcement of this chapter, except those provisions relating to Municipal licenses. (1987 Code § 11-18) 5-3-3: LICENSE REQUIRED; PROCEDURE; FEE: It shall be unlawful for any food dealer to engage in, or do business in the City without having first secured a license therefor. Application for such license shall be made in compliance with the general provisions of this Code relating thereto and shall state therein the kind of food intended to be sold or handled. The annual fee for such license shall be thirty dollars ($30.00). (1987 Code § 11-19) 5-3-4: DOUBLE LICENSING: Any person licensed to sell any of the foods or beverages for the sale of which a license is required by the terms of this chapter or title 4, chapter 2 of this Code may conduct on the same premises and in connection with the licensed business, any other business mentioned in this chapter or title 4, chapter 2 of this Code without paying any additional fee therefor; provided, that the fee paid for the licensed business is at least as great as the amount of the fee required for the other business so conducted. This section shall not be so construed as to relieve any such applicant from the regulatory requirement to such business. (1987 Code § 11-23) 53 Scavenger Current number of licensed holders: 4 Number of licensed vehicles: 24 Projected income: $2400 Regulation: The Illinois EPA regulates their dumping* NAME CITY AMOUNT # OF VEHICLES Groot Industries, Inc. Elk Grove Village $200.00 2 MDC Environmental Services, Inc. Marengo $300.00 3 Waste Management of Illinois, Inc. McHenry $200.00 2 Advanced Disposal Services Waukegan $1,700.00 17 $2,400.00 4-12-1: DEFINITION: For the purpose of this chapter, the word SCAVENGER means any person engaged in the business of collecting, carting, hauling or transporting garbage, ashes, refuse of all kinds and any and all miscellaneous waste materials. (1987 Code § 11-99) 4-12-2: LICENSE REQUIRED: No person shall engage in the business of scavenger in the City, without first having obtained an annual scavenger license from the City. (1987 Code § 11-117) 4-12-3: EXEMPTIONS: This chapter shall not apply to anyone who is engaged in the business of landscaping, lawn and ground maintenance, tree trimming, lawn mowing, bush and tree trimming, construction or trucking who remove, haul and dispose of brush, tree branches and trunks, grass clippings, landscape wastes, building debris, construction debris or junk. (1987 Code § 11-100) 4-12-4: NUMBER OF LICENSES: Only one scavenger license for one-, two-, three- and four-family residence service in the City shall be issued. Scavenger licenses for all other scavenger services in the City shall be issued on a nonexclusive basis. (1987 Code § 11-117.1) 54 4-12-5: APPLICATION FOR LICENSE: Application for a scavenger’s license shall be filed with the City Clerk. Such application shall be signed, under oath, by the applicant and shall disclose the name, residence address and telephone number of the applicant, the business address and telephone number of the applicant, the make, model, year and serial number of each vehicle used and to be used by the applicant in the scavenger operations, and the total number of such vehicles. (1987 Code § 11-118) 4-12-6: EXCLUSIVE LICENSE: A. Terms And Conditions: The exclusive license for one-, two-, three- and four-family residence scavenger service in the City shall be issued to such scavenger on such terms and conditions as the City Council may from time to time determine. (1987 Code § 11-117.2) B. Bond Required: The waste hauler who is awarded the exclusive license for one-, two-, three- and four-family residential scavenger services shall immediately, upon being awarded the license, file a bond with the City in the penal sum of two hundred fifty thousand dollars ($250,000.00), executed by the waste hauler as principal and also by two (2) noncorporate sureties, who shall be residents of the State. The waste hauler, however, shall have the option of substituting a corporate surety on such bond, in lieu of the aforesaid noncorporate sureties. Such bond shall be approved by the City Attorney and shall be conditioned upon the waste hauler complying fully with all of the provisions of the ordinances of the City at all times and also complying fully with all of the provisions of the Statutes of the State. (1987 Code § 11-119) 4-12-7: ISSUANCE OF LICENSE: The City Clerk shall receive and issue scavenger licenses based upon receipt of all required documentation and fees as stated herein. (1987 Code § 11-120) 4-12-8: FEE FOR LICENSE: No annual fee shall be charged for the exclusive license issued for one-, two-, three- and four-family residential scavenger service. The annual fee for all other scavenger licenses shall be one hundred dollars ($100.00) for each vehicle that is to be used in the scavenger business in the City. (1987 Code § 11-121) 4-12-9: TERM: The term of an annual scavenger’s license shall be the same as the fiscal year of the City (May 1 to April 30). (1987 Code § 11-122) 4-12-10: VEHICLE INSURANCE: Each vehicle used in scavenger operations licensed under this chapter shall be insured against public liability in the amount of one million dollars ($1,000,000.00) for each person injured and in the amount of one million dollars ($1,000,000.00) for each occurrence. (1987 Code § 11-102) 55 4-12-11: VEHICLE REQUIREMENTS: A. Watertight; Cover: All vehicles used by a scavenger in their business shall be watertight and shall be equipped with airtight covers for such portions as are used for the transportation of garbage, refuse of all kinds or miscellaneous waste materials. (Ord. 19-1186, 2-18-2019) B. Vehicles And Containers Closed: All vehicles, boxes or containers used or leased by a scavenger shall be kept securely closed to prevent the contents from scattering. (1987 Code § 11-104) 4-12-12: RESIDENTIAL SERVICES: A. Rates, Terms, Conditions: The scavenger licensee furnishing one- and two-family residential scavenger service shall provide such services at such rates and under such terms and conditions as may be determined from time to time by the City Council. B. Special Services: A scavenger may provide such other special type of collection service (such as the pickup of household debris, construction material, junked appliances, discarded furniture or other miscellaneous materials) as the homeowner may request at a collection fee to be agreed upon between the scavenger and the homeowner. (1987 Code § 11-105) 4-12-13: BUSINESS, COMMERCIAL AND INDUSTRIAL SERVICES: A scavenger licensed under this chapter may contract with each business, commercial and industrial establishment, individually, for scavenger service, at a monthly collection fee to be agreed upon between them. (1987 Code § 11-106) 4-12-14: REVOCATION OF LICENSE: A. Authority; Notice: The Mayor and City Council may revoke any scavenger’s license issued under this chapter, where the licensee has violated any of the regulations prescribed in this chapter. Notice of such revocation shall be given to the licensee by personal delivery to the licensee, or by certified mail addressed to the licensee. The licensee shall be entitled to a hearing before the Mayor and City Council in connection with such revocation, provided he makes written demand for such hearing within five (5) days after he has received the notice of revocation. (1987 Code § 11-123) B. Hearing: A hearing demanded by the licensee under this section shall take place within fifteen (15) days after the demand for the hearing has been filed with the City Clerk. Whenever a demand has been made by a licensee for a hearing in connection with the revocation of their license, the licensee shall be permitted to continue scavenger operations in the City during the time that such hearing on the revocation is pending. (Ord. 19-1186, 2-18-2019) 56 Arborist Current number of licensed holders: 0 Projected income: $0 Regulation: Not sure if they have to be State licensed 8-3A-21: ARBORIST’S LICENSE AND BOND: It shall be unlawful for any person or firm to engage in the business or occupation of pruning, treating or removing street trees or trees overhanging streets, rights-of-way or utility easements without first applying for and procuring a license from the City Clerk. The annual license fee, based on fiscal year, shall be twenty five dollars ($25.00). No license shall be required of any public service company franchised by the City or of any City employee. Before any license is issued, each applicant shall first file satisfactory evidence with the City Clerk of liability insurance coverage for general liability, automobile liability, excess liability and workers’ compensation liability in the minimum amounts of one million dollars ($1,000,000.00) for bodily injury and one million dollars ($1,000,000.00) for property damage, which insurance policy shall name the City as an additional insured party thereon, and which shall indemnify the City from any and all claims, damages and judgments on account of any injury to person or property resulting from the conduct and actions of such licensee. (1987 Code § 24-21) 8-3A-22: PENALTY: 57 Business Licenses – Other Municipalities Woodstock - None Crystal Lake - tattoo, massage Lake Zurich - None* (technically all, but through certificates of occupancy) Algonquin - None* (business registration, all businesses through certificates of occupancy) Mundelein - Pawnbrokers, Food Trucks, Pawnbrokers, Second Hand Goods (then Business Registrations for others) Barrington - Food Establishment, Amusement, Tobacco, Massage (then Business Registrations for others) Elgin - Food Handling, Tobacco, Home Business (then Business Registration Licenses for others) Harvard- Amusement, Contractors, Home Occupation, Ice Cream Vehicle, Tobacco, Massage, Outdoor Market, Taxi, Vending St. Charles - Carnival, Tobacco, Amusements, Horse Drawn Carriage, Massage, Scavenger, Towing Aurora - None Rochelle - None (business registration) Waukegan - Home Business, Home Day Care, Mobile Food Vendor (then all regular Business License) Island Lake - None (business registration) Prairie Grove - None *Note For those listed with “Business Registration”, or “all through certificates of occupancy”, they don’t have business licenses for special or different businesses. They require ALL businesses to register, but not usually a fee. They are usually just issued a Business Registration certificate or license by going through the standard building permit procedure to obtain their Certificate of Occupancy. Then they just give them a Business Certificate or License just so they can keep track of who has a business in their town. 58