Planning & Zoning Commission

MINUTES CITY OF DEKALB PLANNING AND ZONING COMMISSION REGULAR MEETING October 28, 2015 The City of DeKalb Planning & Zoning Commission held a regular meeting on October 28, 2015 in the City Council Chambers of the DeKalb Municipal Building, 200 South Fourth Street, DeKalb, Illinois. CALL TO ORDER Chair Atherton called the meeting to order at 6:00 p.m. A. ROLL CALL Planning & Zoning Commission members present: David Castro, Matthew Crull, Adam Katz, Roger Ruehling, and Chair Christina Atherton. Members absent at roll call were: Deborah Nier and Jerry Wright. Also present: Derek Hiland, Principal Planner, Dean Frieders, City Attorney, and Linda Jacobson, Administrative Assistant. B. APPROVAL OF AGENDA A motion was made by M. Crull to approve the October 28, 2015 agenda. The motion was seconded by R. Ruehling and approved by voice vote. C. PUBLIC PARTICIPATION None D. APPROVAL OF MINUTES A motion was made by D. Castro to approve the September 30, 2015 minutes. The motion was seconded by M. Crull and approved by voice vote. E. OLD BUSINESS 1. Continued Review and Adoption of Planning and Zoning Commission By-Laws and standing rules. Changes to the By-Laws were last considered in August, 2015. D. Hiland, Principal Planner, invited City Attorney Frieders to field questions regarding issues of witness testimony and voting of the Planning and Zoning Commission. D. Frieders advised that with regard to the presentation of witnesses, different communities have different regulations. Under Illinois Municipal Code, a chair has the authority to administer an oath and swear in, if necessary, but this is not required under Illinois case law. Courts have upheld planning commission hearings even with the absence of oaths. Some plan commissions do have an ordinance process; they can require the attendance of, or subpoena witnesses; however, a planning commission does not have independent law enforcement authority and its subpoena would have to go through a judicial process, rather than through the Police Department, and that could provide challenging. There is no case law indicating that the City Planning and Zoning Commission would have an obligation to subpoena a witness. The presenter is responsible for whatever testimony and evidence is needed to support the findings they are asking the Planning Commission to engage in. With regard for authority of a commission for contempt of a witness that is not cooperative, the planning commission weighs testimony based on credibility or from that of a witness who is more open in answering the questions of the commission. They give or don’t give credit to a testimony. Occasionally a commission engages in a quasi-judicial role when determining how facts/law apply to a given recommendation/decision. In this role there is an obligation to permit cross examination. If a commission doesn’t allow a cross examination, the courts deem that a violation. The Planning & Zoning Commission has been careful to permit cross examination where relevant. If a party refuses cross examination after testimony, the commission can give less credence to the testimony offered and reflecting that in the record. Discussion was opened by C. Atherton regarding swearing in of persons to give testimony. D. Frieders advised that once approved in the By-Laws, the swearing in of persons giving testimony should be done consistently at meetings in the format of a public hearing and testimony should be offered under oath. A mass swearing at the onset, making it clear to the public that testimony offered is under oath, with the posting of a sign stating any testimony offered would be considered under oath, even for those who have missed the mass swearing will be sufficient. This can also be incorporated into the By-Laws noting that all testimony is presumed to be done truthfully and is under oath and all participates certify that their testimony is truthful and under oath. Attorney Frieders that swearing in witnesses is not a requirement for commission proceedings, and that not doing so does not make any commission actions or witness testimony less valid. The commission should be consistent in its proceedings. Attorney Frieders then addressed the question of voting. The By-laws reflect that an affirmative vote of at least four members is required to pass any motion; a vote of fewer than four members is only sufficient to adjourn a meeting. A majority of a quorum (three of four of the members) would not be adequate to pass a recommendation before the commission. In the absence of that provision, the applicable rule would be that a majority of a quorum are adequate to pass a motion before the Planning and Zoning Commission. As has been done in the past, it is recommended that the changes to the By- laws be referred to the City Council for approval to give them the force of the City ordinance. Then they would become a procedure the City would follow. Attorney Frieders continued to discuss the City’s unique status as a Home Rule municipality. There is some case law that indicates that even if the City fails to follow its own internal procedures, as long as a zoning decision is reasonable, the decision may still be enforceable. If the Commission intends to adopt a procedure, it is recommended that it follow the procedure as closely as possible. This rule of four votes is not a new provision, as it has been approved by the City Council and in place for some time. D. Frieders clarified, that a vote to approve a motion would need to be four of five; if fewer voted in favor, the motion would be denied. M. Crull voiced concern that this procedure is special, in that more than a majority voting in favor would be necessary to pass a motion. He stated the he was not in support the requirement of four votes to approve. However, he would not object if the other Commission members believed the rule to be necessary. Chair Atherton mentioned a situation in the past when a quorum was met for a meeting to be held, as four members were present, and a motion was considered. In this case, three voted in favor of the motion, but the motion did not pass. The motion had to be brought back at the next meeting because there was confusion about whether a vote of three was or was not adequate to pass the motion. Attorney Frieders stated that if the vote of four is required, that the Commission review its By-laws periodically, especially when a new member joins, to be sure everyone understands the procedure. A discussion of the pros and cons related to an approved vote being four in favor followed. It was found that a real possibility exists of meeting a quorum to hold a meeting but not having enough votes in favor to pass a motion that is brought to the Commission. A discussion of the requirement for swearing-in witnesses took place. D. Castro stated that he did not believe that requirement should be in the By-laws, as there is no way to enforce it and it would be just symbolic. A. Katz voiced agreement with D. Castro. M. Crull pointed out that the swearing-in of citizens may not be beneficial, as citizen comments are often opinions, not necessarily truths. R. Ruehling stated that he was in favor of the swearing-in requirement as it might keep citizens from stretching the truth. Chair Atherton voiced concern that requiring swearing-in citizens may deter them away from speaking at public hearings and giving valuable insight. D. Castro thanked Attorney Frieders for his clarification of the language in the By-laws related to the number of votes necessary for approving a motion and for swearing-in of witnesses. D. Castro motioned to postpone the vote on the new language of the By-laws until the next meeting of the Planning and Zoning Commission. This motion failed. A discussion continued in which M. Crull voiced support for striking out the language in the By-laws that regarding the number of required affirmative votes and the swearing-in of citizens. Chair Atherton also supported the removal of the language for the required four affirmative votes, which may delay decisions when only four members are present at a meeting. R. Ruehling stated he would support striking out the language requiring the four affirmative votes as well. M. Crull motioned to adopt the By-laws as they are with the recommendation to remove the requirement for an affirmative vote of at least four members and the language requiring the swearing- in for citizen commentary. This motion was seconded by A. Katz. A roll call vote was taken: D. Castro abstained; M. Crull, A. Katz, R. Ruehling, and Chair Atherton voted yes. The motion passed. Attorney Frieders stated that the By-laws as approved by the Commission will go to the City Council for approval on November 23, 2015. Until then, the Commission is bound by the current, unrevised By-laws. However, no meetings of the Commission were planned before the meeting of the City Council, so there should be issue with this time period between. F. NEW BUSINESS A request by Ray Shinkle of Insite RE, Inc., on behalf of Verizon Wireless, for a special use permit to colocate Verizon communication equipment on top of the exiting 63-foot tall bank building located at 155 North Third Street, DeKalb, Illinois, which is zoned Central Business District. D. Hiland stated that the height of the building plus the faux penthouse and antenna structure falls below the maximum height limited for the Central Business District. D. Hiland pointed to the staff report documents that detail the plans for this project. Chair Atherton opened the public hearing. Matthew Grant of Insite RE, Inc., on behalf of Verizon Wireless, gave a presentation during which he laid out the proposal for Verizon to install the additional antenna structure to help provide seamless coverage inside buildings and vehicles in the area. He discussed the popularity of wireless communication and the 911 capability of wireless phones. Mr. Grant demonstrated with a radio frequency map the need for better wireless coverage in the proposed antenna’s area as it relates to four existing antennas’ sites. Mr. Grant also outlined how the proposed antenna’s site was chosen to be at the 155 North Third Street location and presented photograph simulations of how the stealth-design antenna structure would look on top of the building. Mr. Grant also presented site plan drawings of how the structure would be placed, including nine antennas, on the roof of the building. No equipment will be visible from outside the stealth structure. The proposed emergency backup power generator will be located in the parking lot to the southwest of the building, along the wall of an adjacent building. Chair Atherton asked what the generator would look like in its proposed location. Mr. Grant stated it would be placed in a fenced leased area measuring 10 feet by 16 feet with a fence height of 8 feet. The fence would be covered if recommended by the City. The generator would not take up any of the parking spaces currently in place. Chair Atherton confirmed that there would be no hindrances to driving through the parking lot or blocking the sidewalk area. R. Ruehling asked about the distance from the edge of the generator to the nearest building. Mr. Grant directed him to drawing C-1 to see that the generator would be placed against the building. Chair Atherton confirmed that the connection from the generator to the antenna facility would be underground and up to the site. Mr. Grant directed her to drawing E-4, which shows that the buried conduits would be under the parking lot and into the bank building. Chair Atherton asked if there were any further questions and noted that there was no public present at the meeting to pose any public comments. Chair Atherton posed to D. Hiland a question regarding the fence and landscaping. D. Hiland responded by directing her to the Sample Motion included in the Staff Report, items 5, 6, and 7: 5. The UDO requires landscaping on sides facing public rights-of-way or residential areas to be planted with vegetation at least four feet in height. As this property will be visible from the east, south and west, landscaping along those sides will be required. The landscaping plan submitted needs to be adjusted to meet this requirement;  6. Installation of a sight-proof fence of at least six feet in height constructed of wood, vinyl, or in materials compatible with the adjacent building to help with screening, appearance and sound of the generator; 7. Noise generating equipment like the proposed emergency generator shall be sound buffered by means of baffling, barriers, or other suitable means to reduce sound level measured at the property line to 30dBA when adjacent to residential areas and 45dBA in other areas. Chair Atherton asked how tall the generator and equipment that would go with it behind the fence would be. Mr. Grant replied that he did not have the specific answer at hand but assured her that it would not be taller than a few feet. The required height of the fence is six feet, but the applicant can install fence measuring eight feet for security purposes. R. Ruehling asked D. Hiland if it was acceptable for the generator site to be only six inches from the property line. D. Hiland replied that the landscaping requirement is the only concern, as six inches does not allow for much development of landscaping. Chair Atherton and C. Crull agreed that landscaping in such a small area with pavement all around does not seem likely to work. R. Ruehling suggested ivy. Chair Atherton asked about a gap in the faux penthouse wall of the rooftop structure that allowed technicians to access the equipment was in a previous proposal. Mr. Grant responded that the gap is no longer present in the current proposal, per the City’s request. Chair Atherton asked further how technicians will be able to access the antenna structure. Mr. Grant replied that there would be a door instead of a gap in the current plan, with a small ladder leading up to it. Access to the antenna structure would be from the roof outside of the building. R. Ruehling asked Mr. Grant what the distance will be from the surface of the roof to the bottom of the antennas, as he was concerned about snow accumulation affecting the antennas’ performance. Mr. Grant stated that the antennas will be elevated to eliminate all blocking. D. Hiland stated that the antennas are elevated about eight feet above the roof. Chair Atherton asked for thoughts from Commission members on the landscaping and fencing options. A. Katz suggested a brick or faux brick material with ivy for maintenance-free fencing. He stated he was not in favor of wood as a material due to the maintenance it requires, and recommended vinyl or something like it that is easier to maintain. M. Crull stated that ivy may damage a fence and requires maintenance as well and suggested that landscaping not be a requirement for this particular project. D. Hiland suggested that instead of chain-link fencing proposed by the applicant that the enclosure around the generator be created so it mimics the brick of the building to which it is adjacent, which would help more with noise reduction. M. Crull voiced agreement with D. Hiland’s suggestion of an enclosure that would be constructed of a building material that looks similar to the adjacent building’s material. Chair Atherton asked Mr. Grant if there will be some buffering between the generator and the building it will be placed against. Mr. Grant said there is none planned. Chair Atherton voiced concern that the cosmetology school, which is housed in the adjacent building, may be disturbed by the noise of the generator whenever it is tested, which occurs at maximum once per month. A. Katz asked what the decibel level of the generator would be. Mr. Grant did not have the actual level, but stated that Verizon proposes to deploy these generators at nearly every antenna site throughout the state, and the generators do abide by the county and state noise level laws. R. Ruehling asked Mr. Grant if he has been present when such a generator has been operating. Mr. Grant stated that he has not. Chair Atherton closed the public hearing at 7:10 P.M. D. Hiland confirmed that as long as the enclosure provides security for the equipment, minimizes the impact on the public rights of way, and it meets the decibel level at the property line, the enclosure would meet the requirements of the Zoning Ordinance. D. Hiland stated that the City would be involved in the building permit process with the applicant and recommended that the Commission vet out some more descriptive details on the structure’s material. He cautioned against striking out items 5, 6, and 7 from the Sample Motion and asked Mr. Grant if he had any experience with altering the plans for the generator enclosure. Mr. Grant presented a last resort option of an “Appleton plug,” which is about the size of a water spigot and installed the side of the building; a generator would be wheeled in and connected to this plug during a power loss situation. He stated that if the special use permit is contingent upon this, an Appleton plug may be an option. Ultimately, two options were presented: • A masonry structure that looks similar to the adjacent building to enclose the generator or • An Appleton Plug, which would require an emergency team to deploy and bring a generator to the site. D. Hiland asked what the other four Verizon antenna sites in DeKalb have in place for emergency power supplies. Mr. Grant replied that the towers have generators below them on the ground, housed in enclosures, but he was not certain of the location of the emergency power supply that is on the current rooftop antenna in DeKalb. As the site under consideration is intended to boost the wireless signal, not as an essential providing site, it would likely affect a small number of customers for a short period of time while an emergency team brought a generator to the site in case of a power outage. D. Hiland suggested that the Commission make a recommendation of whether Verizon will have an enclosure surrounding a generator or an appleton plug. M. Crull motioned to approve the recommendation of all items, striking out 5, 6, and 7, and replacing that with requiring a masonry enclosure around the generator site or an appleton plug. Motion was seconded by R. Ruehling. A roll call vote was taken. M. Cull, A. Katz, D. Castro, R. Ruehling, and Chair Atherton voted yes. The motion passed. G. CONSIDERATIONS D. Hiland presented a workshop regarding considerations for electronic digital signs. City staff brought this issue to the Commission, specifically electronic changeable copy signs or message boards. D. Hiland provided a brief history of digital signs in the City: in 2001 they were allowed; in 2005 or 2006 they were not allowed; in 2012 they were allowed as part of a special use process or a PUD. In 2012, the City approved the NB&T sign with specific limitations: size, brightness, blinking, how often the message would change, and what kinds of messages it would display. D. Hiland asked the Commission to consider how to move forward with a current request for an electronic digital ground sign. He delineated the current requirement for a sign to be 10 feet tall, 50 square feet in area, 18 feet of which can be manual, not electronic, changeable copy. He mentioned recent changeable sign applicants, including Culver’s and McDonalds, and how the winter climate makes changing the signs manually difficult and possibly dangerous. In addition, electronic digital signs are more energy efficient. Additionally, he presented arguments against electronic signs, as well: that they can be bright, have messages that change frequently, and may be more like moveable billboards. D. Hiland asked the Commission to voice their thoughts on the current sign ordinance. He reminded the members that any amendment to the UDO would require a public hearing before adoption by the City Council. The electronic signs at NB&T, at DeKalb High School, and at recent gasoline stations for price displays are examples of recently approved special use electronic signs. R. Ruehling stated that operating an electronic sign from inside the store makes doing business easier, but he was not in favor of moving signs due to the possibility of a traffic hazard. The NB&T sign was not allowed by the City to have a ticker scrolling across it. Chair Atherton voiced concern about how LED light intensity can be as distracting to drivers as a moving sign. She stated that several recent new businesses have built in the City and requested electronic signs, so discussing this issue was important. D. Hiland stated that some communities do handle electronic message boards signs safely with the health and welfare of the community in mind by allowing changing of the messages on electronic signs at different but specific intervals to not distract drivers or cause a hazard or nuisance. On the other side of the argument, D. Hiland noted that some communities have businesses that do not dim their electronic signs in the evenings appropriately and let the sign operate like a video board. He spoke on the point that currently the City’s code prohibits any electronic moving sign, but it does allow a non-electronic moving sign under a temporary sign permit, for two weeks up to six times a year, namely at Copy Service. Chair Atherton asked if the temporary parking signs used by Northern Illinois University on the highway on Route 38 would be considered temporary signs under the current code. D. Hiland stated that these are directional signs, not commercial activity signs. A. Katz stated that the City should keep some control of the signage issue. M. Crull stated he supported signs that are basic and safe. R. Ruehling recommended that electronic sign change their messages not more than once per hour. D. Castro stated that he supported further conversation about changeable electronic signs and requested that the Commission investigate what other communities do before making any decisions. H. FUTURE CONSIDERATIONS D. Hiland stated the calendar is open, but scheduling meetings around Veterans’ Day, Thanksgiving, and the month December may be challenging. There is currently one request for a variance for a garage that will likely come before the Commission in December. D. Hiland said that if a special meeting were to be necessary in November or December, he would let the Commission know. I. REPORTS/ITEMS FOR NEXT MEETING J. ADJOURNMENT M. Crull motioned to adjourn the meeting. D. Castro seconded the motion. The motion passed by voice vote. Linda Jacobson, Recorder Natalie Nelson, Recorder Minutes approved by the Planning and Zoning Commission on December 16, 2015.