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HomeMy WebLinkAboutMinutes - 8/4/1997 - Zoning Board of Appeals ZONING BOARD OF APPEALS �„ AUGUST 4, 1997 CITY OF MCHENRY IN THE MATTER OF THE APPLICATION OF ) Z-430 THE CITY C�F MCHENRY FOR A TEXT ) City of McHenry AMENDMENT, PURSUANT TO THE ZONING ) Text Amendment ORDINANCE OF THE CITY OF MCHENRY, ) MCHENRY COUNTY, ILLINOIS. ) Filing Procedures REPORT OF THE ZONING BOARD OF APPEALS TO THE CITY COUNCIL, CITY OF MCHENRY, ILLINOIS A hearing on the above-captioned petition was held on June 16, 1997, July 7, 1997, and was recessed to this date . Chairman Semrow called the hearing to order at 7 :38 p.m. The following persons were in attendance : 1 . Zonir_g Board Members : George Cadotte, Randy Christensen, Paula Ekstrom, Jon Meyer, Harry Semrow. Absent : John Howell, Chuck Lovett . 2 . Attorney for Zoning Board: David W. McArdle . `' 3 . Recording Secretary: Kathleen M. Kunzer 4 . City Administrator: John A. Lobaito. 5 . City Planner: Phillip Maggio. 6 . Petitioners : John Lobaito, representing the City of McHenry, 333 South Green Street, McHenry, Illinois 60050 . 7 . Attorney for Petitioners : David W. McArdle . 8 . City Council Members : None. 9 . Court Reporter: None. 10 . Objec.tors/Observers : None . NOTICE OF PUBLICATION Notice of this hearing was published in the Northwest Herald on June l, 1997 . Publisher' s Certificate of Publication is on file with regard to this matter in the City Clerk' s Office . '` Page 2 ZBA; Filing Procedures 8/4/97 � SUMMARY The Petitioner is requesting a text amendment to the City of McHenry Zoning Ordinance as follows : a. Chapter II(C) (3) (A) of page 31 - Delete; "The applicant shall comply", and replace with:" The applicant shall ensure the compliance"; b. Chapter II(D) ( on page 33) - insert: "publication costs" after : "legal services", in the second paragraph; c. Chapter II(F) ( on page 34) - Delete: "must provide", and replace with: "shall ensure the provision of" in the first paragraph; d. Chapter II(F) (3) (on page 35) - delete: "The applicant shall publish and replace with: "the applicant shall ensure that the following items have been filed"; and e. Chapter II(F) (4) (on page 35) - delete "The applicant shall file" and replace with: "the applicant shall ensure that the following items have been filed". GENER.AL DISCUSSION: Maggio advised that staff feels encumbered by the requirements of the Zoning Ordinance (hereinafter "the Ordinance) filing procedures . Staff, construing the intent of the Ordinance, is requesting that the City assume responsibility for the notification requirements of the Ordinance . The City' s current practice includes providing petitioners a list of abutting property owners from a data base provided by the County Collector, or Treasurer' s Office. The petitioner is advised �' to use this list to fulfill the required certified mail notice requirements . The City is proposed to assume responsibility for the content and preparation of all notices such notices but would leave responsibility for their mailing with the petitioner. The publication notice requirements would be assumed by the City of McHenry; this practice is proposed to include the preparation, payment for, and timely delivery of the requisite legal notice to the publisher. The expense for the assumption of this responsibility would be accomplished through the retained personnel funds of the petitioner. Semrow asked Maggio if he was a licensed attorney. Maggio replied that he is not . Semrow opined that the City of McHenry would be responsible for any mistakes; further, that he has great concern over the potential for liability absent pre-publication review by the City Attorney. Semrow advised that he has no problem with the assumption of such responsibility in the event that a property owner sought a minor variance . Lobaito said that when petitioners are represented by counsel, they usually have no problem with the preparation and publication of the notifications required by Ordinance . He advised that there are times when attorneys have come to him for guidance. The City staff presently reviews all petitions whether prepared by counsel � Page 3 , ZBA Filing Procedures 8/4/97 � or not . After review the responsible member of City staff will suggest changes to the petitioner based upon his assessment of the Petition. Lobaito advises that as Director of Building and Zoning his policy is to assist uncounselled property owners who are desirous of changes to their properties irrespective of whether the desired change requires formal consideration. If formal consideration is required, his department reviews the applications and notices, causing the Petitioner to make changes that staff judges are necessary or advisable . Cadotte said that if he were building a house had he wanted to build it 5 feet closer to the side property line than allowed by ordinance and he came to the Building Department seeking advise, there would be no liability at this point because there has been no appearance before a public board or body. He said he is concerned with the City taking responsibility for notification with regard to any public hearings . Meyer asked what would happen if staff were to make an error in assisting a Petitioner in the preparation of their documents for filing and, if there was an error in the application, causing the � process to be held up for a month or two and the contractor was no longer able to meet his proposed construction schedule? Meyer opined that the City could sustain liability for the project not moving forward. Semrcw, restating his concerns about liability, asked: where would the City draw the line between assisting a homeowner citizen of McHenry and helping a major developer? He offered that the relative magnitudes of such projects do not correlate to the potential liability. No apparent line exists before liability is determined. McArdle said that there appear to be two issues before the Board: (1) the policy issue of whether the City wants to absorb the expenditure of staff preparing and filing the necessary documentation; (2) the liability issue which, he opined could be circumvented by a release signed by the Petitioner exonerating the City from liability for any errors in the preparation of the necessary documents . McArdle stated the waiver or release could be used as a way of circumventing responsibility. � Page 4, ZBA Filing Procedures 8/4/97 � Semrow said that he had concerns about the viability of such a waiver �_n a Court of Law particularly where a Petitioner signs such a document without legal advice . McArdle commented that surrounding communities handle the preparation of zoning documents in a variety of ways . Schaumburg was cited by staff as a community that prepares all of the documentation similar to the manner being considered. Semrow stated that he is familiar with the corporation organization of the City of Schaumburg and that it includes at least one full time City Attorney on staff . He would have less reservation if McHenry had an attorney on staff who was responsible for insuring the correctness of legal notifications . Semrow also said that he was uncomfortable with the expenditure of tax dollars devoted to spending large blocks of time researching and assisting large developers . Maggio said that he has obtained data from the McHenry County Assessor that is update annually. This is the data base from which he compiles a list of abutting property owners . � Cadotte advised that he does not like to see the City of McHenry taking this kind of responsibility. The onus should be on the applicant who wants to make changes to their property not on the City to do the work for them. If they want the change badly enough they will do the work necessary to obtain it . Semrow said if there were a full time on site corporate attorney he would not have a problem with any of the proposed changes to the ordinance . Semrow said it occurs to him the instance will arise where it will not be so simple . There could then be a judgement against the City. The City will have to pay because someone did not want to hire their own attorney. Semrow said he does not understand how the proposed changes would simplify procedures . Meyer said that if it is common practice at this time to assist Petitioners, why is this matter before the Board. Lobaito said the difference would be that the code would provide direction as to how much staff could assist the applicants . He stated Maggio said when Petitioners first come into the office, someone has to tell them what approval is required in order to make their project work. Lobaito said if they are directed to obtain a conditional use permit, and staff does not advise that a variance is also required, the City would be liable for providing only a portion of the information the Petitioner needs . � Page 5 � ZBA Filinc Procedures 8/4/97 V Semrow said the Zoning Board is an advisory board and the Board mus: review Petitions on behalf of all the citizens of McHenry - not strictly those who come before the Board for action. Maggio said the Board may want to consider amending the step by step process for filing as stated in the Zoning Ordinance . Cadotte said why not have staff suggest that applicants retain an attorney for zoning filing purposes . Maggio said he provides the same advice to attorneys that he does to a private citizen. There is no difference whether or not there is an attorney involved. He did not expand on what the nature or frequency of that advise was . McArdle said the city has drafted forms for application. Each attorney who would be filing a petition should be encouraged to obtain a copy of the Zoning Ordinance in order to complete the application forms completely and correctly. If the Petitioner has an attorney, the attorney could determine the abutting property owners for the Petitioner. If the Petitioner does not have an attorney, the City could prepare a list of abutting property owners, but the Petitioner would be required to sign a release absolving the city from liability. Discussion followed regarding the Approval Criteria process � and the staff' s involvement in providing responses to the Approval Criteria questions . Meyer noted that the first paragraph on page 31 of the Zoning Ordinance provides that "staff may advise and assist the applicant in meeting ordinance requirements but shall have no power to approve or disapprove any filing or in any way restrict the applicant' s right to seek formal approval thereof" . It would appear that the latitude being requested by staff to assist the Petitioners in filing applications is already stated in the ordinance and that this proposed text amendment is unnecessary. After deliberating over each of the proposed text amendments as stated in the summary, it was noticed that all proposed amendments are essentially the same as they currently exist in the ordinance with minor word changes . The only radical change is to add "publication costs" to the permitted expenses to be paid from retained personnel funds . Maggio said the proposed text changes are to accommodate staf f taking on some of the tasks mentioned in this hearing. Maggio stated the one issue remaining is should staff do the publication for each of the public hearings with the city being reimbursed from retained personnel, or should the Petitioner be required to do their own publication. He said it did not matter to him who did the publication as long as he was able to provide input to applicants when they come to his office . � Page 6 �. ZBA Filina Procedures 8/4/97 It was the consensus of the Board that no recommendation for text amendment be made to the text . Administrator Lobaito asked that the Petition for Text Amendment be withdrawn from further consideration. ADJOURNMENT Motion by Ekstrom, seconded by Cadotte to adjourn. Voting Aye : Cadotte, Christensen, Ekstrom, Meyer, Semrow Voting Nay: None Not Voting: None Absent : Howell, Lovett This hearing was adjourned at 8 :47 p.m. Respectfully submitted, �G(G� Harry row, Chairman Zoning oard of Appeals � c : Zoning Board of Appeals Members (7) , Plan Commission Members (7) , City Administrator, Planner, PW Administration, City Engineers, Aldermen Reference Copy, Petitioner, B & Z Zoning File, Landmark Commission Chairman, Northwest Herald, Star Newspapers, City Clerk File Copy. Z-430 �