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 .
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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
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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.
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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 .
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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 .
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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
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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
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