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HomeMy WebLinkAboutMinutes - 1/25/1994 - Zoning Board of Appeals ZONING BOARD OF APPEALS APRIL 25 , 1994 CITY OF MCHENRY � IN THE MAT7ER OF THE APPLICATION ) OF THE CI7Y OF MCHENRY , AN ) ZT 379 ILLINOIS MUNICIPAL CORPORA7ION ) CITY OF MCHENRY FOR A 7EXT AMENDMENT CREATING A ) TEXT AMENDMENT USE VARIANCE PURSUANT TO THE ZONING ) CREATE USE VARIANCE ORDINANCE OF THE CITY OF MCHENRY , ) MCHENRY COUN7Y , ILLINOIS . ) REPORT OF THE ZONING BOARD OF APPEALS TO THE CITY COUNCIL , CITY OF MCHENRY , ILLINOIS Hearings on the above-captioned F�etition were held on March 28 , 1a94 , April 4 , 1994 , and was recessed to this date . Chairman Semrow called the hearing to order at 7 �38 p .m . The follo�:ing persons were in attendance� 1 . Zoning Boar� Members= Ran�y Christensen , Emil Kleemann , Frank McClatchey , Harry Semrow , John 5wierk , Donna Tobeck . A�sent: Richard Adamson . 2. Attorney for Zoning Board: Dave McArdle . 3 . Recording 5ecretal-y � Katlileen Kunzer . 4 . Director of Building & Zonin�� John A . Lobaito . � 5 . Petitionor = City of McHenry , represented by David McArdle and John Lobaito . 6. Attorney for Petitioner : Zukowski , Rogers , Fload & h1cArdle , rept-esent�d by David McArdle , 50 North Vil-ginia 5t1-eet , Crystal Lake , Illinois 60014 . 7 . City Council Members : None . 8. Court Reporter = Cheryl Barcne . 9 . Objectors: None . • NOT�CE OF PUBL,ICATIOK IVotification of this hearing was published in the Northwest Heralcl on March 8 , 1994 . Publislier 's Ce�-tificai:E of Publication is on file in the office of the City Clerk . SUMMARY The Petitioner is requesting thnt a text amendment bd granted which would create a Use Variance as follows : A . Chapter II , Table 1 , Requirecl Cantents of Application Filings shall be amended as follows: 1 . Column 3 , Variance , Line 1a , Site Plan , delete "R" , replace � with the letter "X" . 2 . Column 3 , Variance , Line 22 , Architectural Renderings , add the letter "R" . Page 2 ZE3A-City of McHenry 4/25/94 � 3 . Column 3 , Variance , l._ine 26 , Traffiic Analysis , add the letter ��R�� . �. Chapter VII( A )6 , add "g . tJse Variance" . C . Chapter VI II( D ) , add "7 , tJse Var iance" . D. Chapter XV , add Paragr�phs: E Conditions or Restrictions . The Board may recommend , and the City Council , in granting any variance , may impose such conditions or restrictions as appear necessary to minimize possible detrimental effects of such variance upon other propel-ties in tfie neigl�borhood . F . Revocation of Variance A Variance may be ravok�d by the City Council : 1 . if any conditions or restrictions are not compliecl with within the time limit specified on the Variance ; 2 . if after they are initially complied a�ith , compliance with such conditions oT- T-estt-ictions is not maintained at any time; 3. if the Varia�ce is not established , or a required Building Permit i:� not obtained and the building started , within one year of the date the Variance is issued; 4 . if the Variance sl�all cease for rnol-e tl�an one year . E . Chapter XV , add Table 32� A ) Approval Criteria for Use Variances , as follows : In recommending approval of a use variance , the Board of Appeals shall transmit to the City Council written fiincfin�s ofi fact that all of the conditions below apply to the application . The City `- Council shall not be bound by the recommendation of tl�e Board of Appeals . However , in granting approval , th� City Council shall similarly find that all ofi the following conditions apply= 1 Practical [?ifificulties or Particular Hardshiw_ For reasons fully set forth in the written findings , the strict application of the provisions of this Ordinance relating to the us� of the buildings ar structures , or the use of the� land , woulci result in unnecessary and undue hard�hip upon tli� applicant , as distinguished from mere inconvenience . 2 Rgasonable Return The property cannot yield a reasonable return if permitted to be used only under the conditions allowed by the 1-egulations in this Orclinance -For the pertinent zoning district . . 3 Unique Circumstances �pecial circumstances , fully described in the written finclings , exist tl�at are peculiar to the property for whicl� tl�e use variance is sought and that they do not apply generally to other properties in the sam� zoning district . 4 Not Alter Local Character Th� use variance , if grantecl , would not unreasonably alter the essential chat-actet- of the locality . 5 Consis�ent with ComGrehensive Plan The granting of a use variance will be in harmony with the general purpose and intent of this Ordinance and of the Comprehensive Plan of the City . � Pa�e 3 ZBA-City of McHenry 4/25/94 F . Chapte�- XIX , Definitions � Variance , sl�all be de].etec� and �-eplaced `' as follow.�: A modification of the provisions of this Ordinance in accordance with the provisions herein concerning variances i�� cases where strict enforcement would cause unclue hardship as a result of special circumstances afifecting an individual pt'operty that cJo not generally affect other properties in the same zoning district . This modif ication may 1-elate to ti�e use of the land . TESTIMONY Lobaito gave the back�round information concerning the clrafting of this Petition before the Board . The Petition was drafted by Stafif at the direction of the City Council . �obaito said the Approval Criteria �or Use Variances should be examined closely . � The proposed amendments were then examined and questioned paragraph by paragraph by members of the Boat-d . Para�raph A 5ub-Paragraphs A( 1 ) A( 2 ) , A( 3 )� Lobaito said these paragraphs would add Use Variance as a category ta 7able 1 in the Filing Application checklist . Paraaraph B_�_ Lobaito said this amendment would add Use Variance to the list af those filings which would require the submittal of a site plan . `.. Paraaraph C: Lobaito said this amendment would add Use Variance to the list of those filings whicli would require the subm,ittal of a landscap� plan . Paraqyraph D� 7his amendment would add two �aragraphs to the Variance chapter of the Ordinance . 71ie fiirst pa1-agraph would pe1-mit the City Council to impose restrictions or conditions on Variances . The secand para�raph would provide a vehicle for the City Council to 1-evoke a Variance if any one of. the four points contained within that parayraph� is valicl . Discussion ensued regarding Chapter XV , Paragraph E . Conditions or Restrictions . Swie�-k said that being able to impose conditions or restrictions is good . This paragraph should someclay be included in the Conditional Use chapter of this Ordinance as well . ChT-istensen asked Lobaito to clarify "appear necessary to minimize possible detrimental effects . . " . Lo(�aito said an example might be requiring additional landscaping to minimize the detrimental impact of a praposed use in a district . McArdle said that a use variance will moY-e tl�an likely be detrimental to an area by its very nature . It would not normally be a permitted or conditional use for a given zoning distt-ict ancl that would be the reason for it being requested as a use variance . Semrow asked why the word "use" was not included as a modifier in this proposed paragrapl� nol- in paragraph F . McArdle said that the staffi is proposing that the Condztions or Restrictions paragraph and the Revocation of VaT-ianc� paragraph both be � applicable to al]. variances , not only use variances . It wa5 sUggested that the word neighborhood in the Conditions or f2estrictions para�raph be changed to subject zoning district . It was the consensus of all present to make this change . Page 4 ZBA-City ofi McHenry 4/25/94 � 5wie1-k said tliat the Board shou.�d not allow any advei-s� impact . 71�e1-e shauld be no d«�triment to the zon�.�ny district causecf Uy the grant of a use variance . l.ob:�ito said it would be vi1-tually impossible to pt-ove by the Petitioner if there were no detrymental impact whatsoever . It would then be impossible fo�- the boa�-d to g1-�nt a use var iance . Semrow said tl�e Boa�-d would look at the detrimental impact on a case by case basis .Discussion ensued regarding the phrase detrimental effects ancl tl�e pu�-pose of providing ti�e Board and City Council with tha powel- to put conditions and/or restrictions on the granting of a use variance . Revocation of Variance: Item #1 a;id Item #2 and Item #3 would be applicable to area variances and use variances . Item #4 would be applicable to only use variances . It was suggested that item #4 be changecl to read: "with respect to the use variance , if the use granted by the vari�ance shall stop for more than one year or 365 day:�" . Swierk asked if the use variance would be yrantecl to the petitioner or the land . McArdle said that special uses only can b� assigned to tl�e persons making application for them . P�r ,aara� E � Each of the proposed Approval Criteria for Use Variances were discussed as follows: 1 . Practical Difficulties or Particular Hardship� Christensen asked what is meant by "mere inconvenience" . Lobaito said that `- would be up to the Boat-d to decid�� . 2. Reasonable Return= Swierk said that this should not even be difficult for an applicant to prove . He questioned the need for- this c1-iteria . McAT-dle pointed out that in the Variance criteria , the applicant is prevented from making application such that tl�e sole PUT"�05E would be economic 1�eturn . 3. Unique Circumstances= Christensen askecl if a use variance could be granted that would allow �he sale of packaged liquor at a gas station? Lobaito said a ��se variance could be applied for when a use is not permitted or a conditional use is not permitted within t1�e subject zoning district . . �o�iaito explained when use variances waulcl be appropriat�ly applied far ancl when they would npt . Lobaito explained that for exampla wlien a C-5 use is not permitted in a C-3 District , the Petitioner could apply for a use variance . This would be undeT-standable . It would be more difficult to approve when tl-�e use would jump between zoning districts , such as an industrial use in a residential clist�-ict . Perliaps this Board would address this issue so that the Council would know the position o� the BoarcJ with regard to uses jumping from one zoning district to another . 4 . Not Alter Local Character = � Christensen asked what is mear�t by "unreasonably alter the essential � chal-acter . . " . Lobaito said that would mean what the applicant is proposing would fit into the local character . An example might be an office buildiny in a residential district . McAI-dle said this would be a judgement call by the Board . :t was the consensus of those present to incorpora�e paragraph 7 , Table 32 , F�age 377 of the Zoning 0�-dinance , in its entirety in place of this paragrapti as stated in the Fetition . Page 5 ZBA-City of McHem�y 4/25/94 � 5 . Consistent with Comprehensive Plan= Christensen sa�wd he had a problern with "harmony with the general purpose and intent of the Ordinance . . " . Semrow said that once again it waulcl be a judgement call on a case by case I�asis . Paragraph F = McArdle stated that the definiti �n for Variances is basically the same as the existing one in the ordinanc� except for the fact that the last sentence has been added . This s�ntence is tl�e one which actually creates th� use variance . The rest of the Petition before you at this hearing implements it once it has been cT�t.ated . pF� IBERAT�ON BY TH� BOARD Discussion ensued regarding the A�proval Criteria far Variances ( Table 32 ) and the propos�d Approval Criteria for Use Variances ( 7able 32( A ) ) . It was pointed out by McArdle that not all of the Criteria for Variances were applicable to the Use Val-iance and tl�at was the T-eason fot- establishing a separate set of Approval Criteria for Use Variances . The Board then addressed the Appr-oval Criteria fo�- tlie Text Amendment as stated in Paragraph 3 of the Petition . It was the consensus of the Board that the Petitionar satisfactorily addT-essed tl�e Criteria as required by Ordinance . Swierk saicl that he is not opposed to the creation af the use va.riance , but that it should not be used foT- nea�ly annexed parc�ls into tl�e City . In `- those instances , tho applicant should seek the actual zaning requirecl �'or the use being proposed . Christensen a.sked if the sole purpose of the use variance is to permit uses that would otheT-wise not be p�1-mitted on a specific property . McArdle said that when the proposed use of the land differs from those which are allowed as a permitted or conditional use on a particular property within a zonin� district , then application for a use variance would_ be appropriate . Several examples of a use val�ian�es whicl� have been gi-antzd on tl�e advice of the farmer corporate attorney were discussecl: yranting of multi-family use in RA-1 District , grantirg of farnily counsel9.ng center in RS-3 District; upstairs/downstairs apartments in RA-1 District . McClatchey said that these types of uses could be granted in annexation agreements when properties were being brought into the City . discussion ensued regarding� annexation agreements as an alte�-nate means of implementing a use variance rather than the procedure which is befare this Board at tl�is heaT-ing . Christensen said he had concerrs regarding each time a use variance is granted , in effect , the Comprel�ensive Plan and Zoning District Map are being altered . McArdle said that he checked wa.th five municipalities who have implemented a use va�-iance . He found that it is not b�ing a�idely used or abused . Lobaito said that the City Council would direct staff regarda.ng when they would like someone to rnake application for a use variance . �, Lobaito asked the Board to recommend to the CitY Council that zoning district jumpin� not be allowed oi- strongly discouT-aged . SemY'u�•► said tl�at the tool of tl-�e use variance could be very beneficial to the City and its residents . Howevet- , it could be f�a1-mful if not used pt'op�t'ly . Paye 6 ZBA-City of McHenry 4/25/94 `.. Chairman Semrow said , "there being nothing further before this Board with regard to this matter , the Board will consider the Petition at this time , unless there is a motion to rece:�s by a rnember of tlie BoaT-d . 71�ere being no motion to recess , the Chair will entertain a motion a�ith regard ta this Petition" . DELIBERATION _AND RECOMMENQATION McArdle said that any motion by a member of this Board shoulci include the previously addressed amendments t�:� the Petition . Motion by Mc�latchey , seconded by Kleemann to recommend to the City Council that The Petitioner 's request for a text amendment to create a U�e Variance �e g�-anted �s follows: A . Chapter II , Table 1 , Required Contents of Applica.tion Filings shall be amended as follows: 1 . Column 3 , Variance , Line 19 , Site Plan , delete "R" , replace witli the letter "X" . 2. Column 3 , Variance , �ine 22 , Architectural Renderings , add the letter "R" . 3. Column 3 , Variance , �ine 26 , Traffic Analysis , add the letter ��R�� . B . Chapter VII( A )6 , add "g . Use Variance" . C . Chaptel- VI II( D ) , add "7 , Us� Var iance" . D . Chapter XV , add Paragraphs= `' E . Conditions or Restrictions . Th� Baard may recommend , and the City Council , in �rantiny any variance , may impose such conditions or restrictions as appear necessary to minimize possible detrimental effects of such variance upon other properties in the subject zoning di�trict . F . Revocation of Var.iance A Variance rnay be revok�d by tl�e City Council = 1 . if any conditions or restrictions are _ not complied with within the time limit specified on the Va1-ian�e; 2. if after they are initially� complied with , compliance wzth such conditions OT� T-AJI.T�IC��.O�1J is not maintained at any time; 3 . if the Variance is not established , or a :required Building Perrnit is not obtained and the building started , ��ithin one year of the date the Variance is issued; 4 ;, witl� regard to tl�e Use Variance , if tl�e us� granted by th� Variance shall stop for more than one year ( 365 days ) . E . Chapter XV , add Table 3�( A ) Approval Criteria for Us� VarianGes , as follow�: In recommending approval of a use variance , the Board of Appeals shall transmit to the City Council written findings of fact that all of the conditions below apply to the application . The City Council shall not be bound by the recommendation ofi the Board of Appeals . However , in granting approval , the City Council shall sirnilarly find that all of the followinc� conditions �pply� �.. Page 7 ZBA-City ofi McHenr�/ 4/25/94 � � . Practic�J. Difficulties or Particular Hardship For reasons fully set f�rtl� in the written findin�s , the strict application of the provisions of this Ordinance relating to tl-�e use of the builcJin�s or structures , or the use of the land , woulcJ result in unnecessa.ry and undue hardship upon the applicant , as distinguished fr-orn rne�-� inconven.ience . 2 . Reasonable Feturn Th�s property cannot yiE�ld a reasonable return if permitted to be used on1Y under the concJitions allowed by the rec�ulations in this Ordinance for the pertinent zoning district . 3 . Uniwue Circumstances Sp�cial circumstances , fully describecJ in the written findings , exist tl�at are peculiar to tiie property for wl�icli tl�e use variance is sought and that they do no�t apply gen�rally to ather properties in the samL zoning district . 4 . Not Alter L,ocal Character The granting of the �ise variance will not alter the essential character of the locality nor substantially irnpair environrnental quality , property valu.es , or public safety or w�lfare in the vicinity . 5 . Consistent with ComGrehensive Plan The grantiny of a use variance will be in harmony with the general purpose and intent of tfiis Ordinance and of the Comprehensive Plan of the City . F . Chapter XIX , Definitions : Variance , sl�all be delat�d and replaced as follows= `- A modi-Ficatian of the provi�ions of this Ordinance in accarda.nce with the provisions herein concernin� variances in cases wlierd strict enforc�ment would cause undue hardship as a result of special cil-cumstances affecting an individual propel-ty tl��t do not �enerally affect other properties in the same zoniny clistrict . This modif ication may T-elate to tli� u�e of the land . and that the Approval Criteria for Zoniny Amendments , Table 33 , page 401 of the Zoning Ordinance have been met . Voting Aye: Kleemann , I�cClatchey , Semrow , Tobeck . Voting Nay: Ch1-istensen , Swie1- k . Not Voting= None . Abstaining: None . Absent: Adamson . . Motion carried 4-2 . Christensen stated that he is in favor of the creation of a use variance , but that it should not be used with 1-egal-d to anne.cation of property to the City . ' eDJOURNMENT This hearing was adjourned at �: �5 p .m . Res ec fully s rnitte , Harry 5e ow , Cliairman Zoniny Board of Appeals � c= Agend� , Zoning Board of Appeals ( 7 ) , Plan Cornmission ( 7 ) , City Administrator , Director of Building & Zaniny , Pul�lic Glarks Administration , City Attol�ney , City Engineers , Alderrnen Reference Copy , Building & Zoning Zoning File , Landmark Commission Chairman , Northwest. Herald , City Clerk File . Doc/ZBAMIN .37�� � ZONING BOARD OF APPEALS APRIL 25, 1994 CITY OF MCt�INItY � IN TI�MATIER OF 7�APPLICATION ) OF DAVID A KRUK F'OR A USE ) ..�_ _�7 VARIANCE PIItM�f IN ACCORDANCE W1TH ) DAVID A KRUK THE PROVISIONS OF TI�ZONIIVG ) HAYSTACK MANOR ORDINANCE OF TT-�C1TY OF MCHINRY, ) USE VA.RIANCE MCHENRY COUNTY, ILLINOIS. ) RE�ORT OF THE ZONING BOARD OF APPEALS TO THE C1TY COUNCIL,CiTY Or MCHENRY,ILLINOIS Hearings on the above�captioned petition wer�e held on March 28, 1994, Apri14, 1994, and was recessed bo this date. Chairman Sanmw called the hearing to order at 924 p.m. The following petsons were in attendance: 1. Zoning Board Membecs: Randy Christensen,Fmil Kleemann,Frank McClatchey,I��ury Semrow,John Swie►]c,Donna Tobeck Absent Richard Adamson. 2. Atborney for Zoning Boani: Dave McArdle. 3. Recording Secre�uy: ICat}ileen Kunzer. �4. Direcb�r of Building&Zoning: John A Lobaito. 5. Petitioner: Absent 6. Atiomey for Petitioner: Diamond,LeSueur Roth a��d Associates,represented by Samuel J.Diamond,3431 West Eim Stree� McHenry Dlinois 60050. 7. City Council Members: Mayor Cuda, Alderman Locke, Alderman Bates. 8. Court Reporter. Cheryl Barone. 9. Objacbocs: None. � NOTICE OI'PUBLICATION Notification of t�vs hearing was publishad in the Northwest Heca(d on Mar�h 5, 1994. Publishec's Cerbficate of Publication is on file in the office of the City Clerk All abutting property ownecs were notified of these pcnceedings. The subject properly was posted as required by Oniinance. Afiidavit of service is on file in the o�ce of the City Clerk LOCEIT[ON The subject pmperty is located at 5603 West Bull Valley Road,McHenry Illinois 60050, approximately 2/10 of a mile west of the inbecsection of Bull Valley Road and Crystal Lake Road. the prope�ty is cumendy wned agric�ltural pu�u�int to the McHenry County Zoning Ocdinance. � �iJMIVIARY The Petitioner is r�uesting that the subject property be zoned E Estate Zoning Disirict and be gc�anted a Use Variance Permit bo allow t�e conshuction and operation of a restaurant serving alcoholic beverages upon annexation to the City of McHenry. Page 2 ZBA Kcuk 4/z5/'94 �Mayor C�da explained to the Board that it was at the request of the City Council that this Petitioner is before this Boar�i. the City Council specifically requ�ted that this Petitioner present his case befoc�dvs Board on the same ni�,ht as fl�ey considec�d��e creation of the Use Variance. It is undasbood that this Petitioner can only be grant,ed a Use Variance if tl�e City Council adopts the recommendarion voted on in the first heaiing flvs evening. TESTIMONY Sam Diamond said that if the City Council adopts the Use Variance,the Petitioner is requesting that he be ganted a Use Variance bo pennit the construction and opaation of a restaurant serving alcoholic beverages on the subjoct prope►ty. Chaictnan Semrow said the Board will honor the Council's rEx�uest and her this Petition this evening. There is in actuality no Use Variance procedure in place until the City Council acis upon the recommendation of tl�is Board. Diamond svd he wished to proceed with this hearing at risk to his client Semc�w said d�at given tlie present shtus of the text amendment for the Use Variance, any rocommendalion by ihe Board this evenin�should be conditioned on upon the proposed Use Variance being adopted by the City Council,Mr.Kruk should be granted his Use Variance according to the tams and conditions se�forth in the ordinance of adoption of the Use Variance. Diamond said that the Petitioner has chasen not to appea�-personally before this Boazrl. Diamond is acting on his behalf. Diamond int�duced inbo evidence the transcript of�e November 29, 1�3 hearing n�arding this property. In that Petitioc�,Mr.Ktuk sought r�classification to C 3 Zoning Districk However,much of tlie testimony, questions of the Petitioner and pertinent informatioq was addressed at that hearing. It would seem to be redundant b go over all of that testimony once again. `,,Jiamond said ihat when the Peetitioner appearad before the Plan Commission on November 18, 1994, it was the recommendation of that body tfiat the proposed use was consistent with the Comprehensive Plan. Diamond said il�e basis for the Use Variance request is d�at the pmposed use with the specific plan which has been presented bo the City with modifications was in essence appr�ved by the City Council. There was some disagree�nent as to how to�ant the use. The original plan of zoning the parcel C-3 did not meet widl the appmval of the entire Council. It was then recommended to come before fl�is Board ro request a Use Variance. It was then t�commended by d�e Council that the Zoning Board consider an appGcabon bo create a Use Variance. Additional meetings were conducted with city staff and s1:ch thin� as realignment of the road, addibonal landscaping, buffering� pmvisions wer�implemented as a part of the re,vised plan. The City Council appears to like this projec�however,there is no consensus about how to approve flus partic�lar project Diamond presented Petitionec's Fxhibit 1,David K�vk's Zoning Petirion for Use Variatioq attached hereto as a part of this report Diamond said that t1�e restrictions which were addressed in Fxhibit 1 could be implemented by this Board and the Ciry Council as a means of restricting�is property. „ Diamond addressed the Approval Critexia for Use Variance as stated in the Pdihon. Semrow asked if tl�e Plan Commission has racommended a�proval of this project and has stated d�at it is consistent with the Comprehensive Plan. Diamond said that is corr�ct Serru-ow read from a portion of the November 18, 1993 Plan Commission minutes which stated tfiat the proposed use is inconsistent�vith the Comprehensive Plan. Christensen said that this pmposal was presentod to the Plan Commission as a G3 Commercial pmperty and not as a Use Variance. � Page 3 ZBA-Kruk 4/25/94 � Semc�w said that when thi.s property is annexed into the City, it would be wned E Estate, the most restric�ve wning classification accocrling to the Zoning Ordinance. �he building will be enlarged. Should the business fail, the City would be left with a par�el of land which is zoned Fstate and an oversized building on tlle site which would not lend itself to an Pstaze residence. Semrow asked how a building of such a large size which has beeen converted into a restaurant could blend into an estate district Diamond said the City's controls,restridions and conditions would regulate flvs property. This location is in a crossover area There would only be two uses penni�ed on t3�is site: restau�ant and estate residential. Diamond said�at if the City finds�at this is a good use which would be welcome into the City, d�en the City must find a way bo make it fit The Use Variance appeais to be ti�e tool to do that The Use Variance bring flexibility to ihe Zoning Ordinance. Discussion er�sued t�egarding the proposad aparlment which would be a part of the structure. The apartme��t issue and the alcoholic bevetage issue (with or wit�out entertainment) would be inore specifically addressed in the annexation hearing before the City Council. QUE.SITONS OF THE PEITITONER BY MEMBEIZ� Or THE BOARD Swierk asked if Mr. Kiuk was aware of the wning of the property prior bo his purchase. Diamond said that the Petitioner mali�ad that he vwuld need�obtiin zoning and that there were no guarantees that he would get it The Peetitioner anticipater�no difficulty in getting the zoning granted for�is property. Swierk ask�cl what the unique circumstances were that this use should be grantad. He said that removing so many mces from the site would not help to maintain the uniqueness of ti�is site. Christensa�said that he surveyed the site on foot and counted between 150 and 190 mees wlvch would have to be�xnovai if this �cUposed pmject moves forward. Christensen said he would like to see a tree inventory of this site. Diamond said the tt�e invenbory vwuld be done before cons�uction commenced on the pn?ject McClatchey said he was surprised that�e Petitioner was not present for this hearing. He asked ihe size of the bar area;would there be a pool table on site? Diamond said the bar area would be for those patrtins who are waitin�bo be seated at their tables. There would be no pool table. Swierk said that if the bar area is for those waiting b� be seat,ed, why doesn't ihe Petitioner increase the seatin�capacity of the dining room and reduce die seating ir;the bar area. At this point,both areas are nearly equal in size. Diamond said it is not the intent of the Petitioner b�have a lounge, but a restaurant serving alcoholic beverages. McA�lle asked for clarification regarding flie restaurant issue. Would this be a restaurarit serving alcoholic beverages wiihout live entertainment or dancing? Diamond said there would be no live entertainment except as approved by City Council. Swierk asked Lobaib�if the City is loolan�at a t�ur�ant or a lounge as far as the building use is concemed. Lobaito said ti�at any place of business w(uch secves food, is consida�ci a restauruit Swierk said the ZBA should be aware of this flct Even some of the bais in tiown, as lon�as they serve food, are considered a restaurant Motion to mcess due bo the lateness of the hour by Jol�n S�vierk Motion failed for lack of a second. Swierk said the Board should be pmvided with a landscape plan,ho�us of operation,etc. before a decision can be made wit�i rega�d to a recommendation. Diamond said none of t�ase matte� are being negotiated this evening. Negotiations will take place before the City Council. `.5wierk said that an ach�al tree survey,enume�ating the mees which would be lost due tio the development should be provided. How would the Petitioner�place the lost trees? Ttvs is a unique prope�ty which would no longer be unique if so many of the tr�es were lost Page 4 ZBA Kruk 4/25/94 `. Chtistensen said d�at due� the layout of the proposed parking lot, most of the trees on ihe east side of the lot would be losk 1n additioq the trees in�e public right of way would be lost when d�e sewers are installed. Diamond said the Petitioner would provide a tr�e inventiory b�the City. This Board could make that a part of its recommendaation bo the City Council. DELiBERAT[ON AND RECOMMENDATION Motion by McClatchey, seconded by Swierk to rocommend to il�e City Council thai The Petitionet's request that the subject pmpeety be zoned E Fstate District and d�at a Use Variance be granted upon anneacation to allow the construction and opecabon of a restaurant serving alcoholic beverages;that the Petitioner be restrictsd as to �e Use Variance according to the conditionsirestrictions enumerated in Petitiona's Fxhibit 1; fl�at the Use Variance is in conformance to the Site Plan submitted at this hearing and marked Petiboner's Fxhibit 2,heret�auached;and that the Approval Criteria for Use Varianc,es,Table 32(A) of the Zoning Ordinance have been met � DISCUSSION ON TFIE MOTION Semrow said this p�perty would never under any circumstanc�es ever be used as an Fstate property once this Use Variance would be granted. This is in essence a de facto reclassification b�cemmercial wning. This could no longer be sold as a residential p�operty. Tobeck said that it was not that long ago that this Board wor�ced very ha�d regarding the Backhaus annexation prt�c,eedings bo maintain a buffer between the residential district and the conunercial districts to the east in this area. Ri�it now flvs pcvpe�ty is very unique. but we are trying to put a square peg into a mund hole. It will not woric. This would be spot zoning bo gant tilis Use Variance for this pmpe�ty. We would be creating a white elephant and we,the citizen.c of McHenry,would be stuck paying for it `,.iwierk said he ageod witli Tobeck's poinis. VOTING ON THE MOTION Voting Aye: Kleemann,McClatchey. Voting Nay: Christensen, Semrnw, Swiedc,Tobeck Not Voting: None. � Abstaining: None. Absent Adamson. Motion failed 2�. 11�ere will be no recommendation from tl�is Board to ihe City Council with regard to this matter. ADJOURN1vIENT . Motion by Christa�se►�, seconded by Tobecic to adjoum at 10:25 p.m. Voting Aye: Christensen,IClcemann,McClatchey, Sernrow, Swierk,Tobeck. Voting Nay: None. � Not Voting: None. Abstaining: None. , Absent Adamson. This hearing was adjoumed at 10:25 pm. Respectfull sub i � �f� Harry S w, Chairman Zoning ard of Appeals � Page 5 ZBA-Kruk 4/25/94 � c: Agend�Zoning Boarri of Appeals ('�,Plan Commission (�, Ciry Adminishabor, Direcb�r of Building&Zoning,Public Wocics Administration,City Atbmey,Petitioner's Atb�mey,City Enginaecs,Aldermen Reference Copy,Building&Zoning Zoning File,Landmark Commission Chairman,I�orthwest Haald, City Clerk File. Doc/'LBAMIN.373 � �..