Planning and Zoning Board

APPROVED MINUTES OF THE MEETING OF THE PLAN COMMISSION AND ZONING BOARD OF APPEALS VILLAGE OF NILES COOK COUNTY, ILLINOIS November 5, 2012 The Niles Plan Commission and Zoning Board of Appeals was called to order at 7:00 P.M. Chairman Kanelos asked everyone to stand for the Pledge of Allegiance. Present along with Chairman Thomas Kanelos was Village Attorney Joseph Annunzio, Commissioners Karen Dimond, Thomas Surace, Angelo Troiani, Barbara Nakanishi, Robert Schulter and Morgan Dubiel. Also present was Charles Ostman, Director of Community Development and Richard Wlodarski, Assistant Director of Community Development. Chairman Kanelos asked if there were any additions, clarifications or corrections to the minutes of October 1, 2012. There were none. Commissioner Dubiel moved to approve the minutes of October 1, 2012. Seconded by Commissioner Surace, on roll call the vote was: AYES: 6 Surace, Troiani, Nakanishi, Schulter, Dubiel, Kanelos NAYS: 0 PASSED: 1 Dimond There being six (6) affirmative votes the motion carried. ANNOUNCEMENTS Charles Ostman, Director of Community Development, informed the Board that the Village of Niles hired a full-time Planner. Bruce Sylvester comes with fifteen years experience. He earned his Masters in Urban Planning at the University of Illinois. He comes from Verona, Wisconsin and will be bringing his knowledge to the Village in regard to planning and zoning issues. Mr. Sylvester will be presenting the cases at these zoning meetings starting in January 2013. Richard Wlodarski will not be present at these meetings starting in January 2013. NEW BUSINESS 12-ZP-29 Peilin Li, agent 600 Hart Dr., Suite #105 Barrington, IL 60010 or P.O. Box 5846 Elgin, IL 60121 Page 1 of 14  APPROVED MINUTES OF THE MEETING OF THE PLAN COMMISSION AND ZONING BOARD OF APPEALS VILLAGE OF NILES COOK COUNTY, ILLINOIS November 5, 2012 Requesting approval of a Special Use to Appendix B Section VIII (B)(3)(z) to operate a full service restaurant and parking credits per Appendix B Section X (B)(10)(mm) at 9020 W. Golf Road, Niles, IL 60714, PIN #09-10-401-049 DISCUSSIONS General discussion on interpretation of Section VII (A)(6) residential districts (a) appearance. General discussion on Special Uses. Chairman Kanelos called for the first case. 12-ZP-29 Peilin Li, agent 600 Hart Dr., Suite #105 Barrington, IL 60010 or P.O. Box 5846 Elgin, IL 60121 Requesting approval of a Special Use to Appendix B Section VIII (B)(3)(z) to operate a full service restaurant and parking credits per Appendix B Section X (B)(10)(mm) at 9020 W. Golf Road, Niles, IL 60714, PIN #09-10-401-049 Richard Wlodarski presented tonight’s only case. Legal notice for this case was published on October 18, 2012 in The Bugle Newspaper. Letters were mailed out to all properties located within 250’ of the subject property. This is case 12-ZP-29. Subject property is 9020 W. Golf Road. The new Asian style buffet, per Village ordinance, requires a Special Use. The new buffet is proposing to lease 11,270 sq. ft. and have 280 seats. With the use being more demanding for parking than retail, as the Sunview Market was, staff has reviewed an existing parking study completed in July 2010 by Gewalt- Hamilton. Staff has no concerns there will be any parking issues in allowing this Asian buffet to occupy this space. The attached memorandum explains in more detail why Staff feels there are no parking concerns. If there are questions regarding this memorandum he will be happy to answer them. The Community Development Department has reviewed this Special Use request and recommends approval. This Board is a recommending Board to the Board of Trustees. Page 2 of 14  APPROVED MINUTES OF THE MEETING OF THE PLAN COMMISSION AND ZONING BOARD OF APPEALS VILLAGE OF NILES COOK COUNTY, ILLINOIS November 5, 2012 Chairman Kanelos asked if there were any questions from the Commissioners for Mr. Wlodarski. Commissioner Dubiel asked if Staff feels the parking study done in July 2010 is still an up to date parking plan. Mr. Wlodarski said they do. They keep close tabs on all the shopping centers and this mall has very little change with other users since the study was done. A parking study is very expensive and there wasn’t enough change to warrant it. Chairman Kanelos asked if there were more questions from the Commissioners. There were none. There were no questions from the public either. At this time he called up the petitioner. Three people approached the podium: Mike Norton 270 Commerce Dr. or 193 Wexford Place Rochester, NY 14623 Webster, NY 14580 Owen Guo from New York but living at 630 Morningside Dr. Round Lake Beach, IL 60073 Peilin Li, agent [not owner] 600 Hart Dr., Suite 105 or P.O. Box 5846 Barrington, IL 60010 Elgin, IL 60121 All three were sworn in. Mike Norton spoke on behalf of the owners of the shopping center, First Allied Corp. They are very optimistic on this restaurant coming into the center and using approximately 11,000 sq. ft. of the 19,000 sq. ft. vacancy there now. The space has been vacant for three years. Owen Guo stated he is a partner in the business. Peilin Li then spoke. It is going to be an Asian style buffet. There will be a variety of food. The restaurant will operate Sunday through Thursday 11:00 Page 3 of 14  APPROVED MINUTES OF THE MEETING OF THE PLAN COMMISSION AND ZONING BOARD OF APPEALS VILLAGE OF NILES COOK COUNTY, ILLINOIS November 5, 2012 a.m. until 10:00 p.m., Friday and Saturday from 11:00 a.m. until 11:00 p.m. They are very familiar with this kind of restaurant operation because they have done it before and have locations in other states and in this state as well. Chairman Kanelos asked if there were any questions for the petitioners from the Commissioners. There were none. There were no remaining members in the audience so no other questions. He then entertained a motion. Commissioner Dubiel moved to approve 12-ZP-29 – Peilin Li, agent, 600 Hart Dr., Suite #105, Barrington, IL 60010 requesting approval of a Special Use to Appendix B Section VIII (B)(3)(z) to operate a full service restaurant and parking credits per Appendix B Section X (B)(10)(mm) at 9020 W. Golf Road, Niles, IL 60714, PIN #09-10-401-049. It meets the standards set forth in the zoning codes Sections H 4 a, b & c. Seconded by Vice-Chairman Dimond, on roll call the vote was: AYES: 7 Dimond, Surace, Troiani, Nakanishi, Schulter, Dubiel, Kanelos NAYS: 0 There being seven (7) affirmative votes the motion carried. Chairman Kanelos said there being no other items on the agenda they will move on to a general discussion. General discussion on interpretation of Section VII (A)(6) residential districts (a) appearance. General discussion on Special Uses. Joseph Annunzio, Village Attorney, stepped to the podium to give a lecture on interpreting the residential districts appearance and special use. He first wanted to talk about the frame of reference in how the Board should be making their decisions. There are legal concepts that have not been addressed. He feels the Board has come a long way from where they started; now they are at a point where loose ends can be tied up. Whatever the Board does from now on, they can be assured they will not be overturned on an appeal in case an appeal comes up. This comes up because of the case last month [12-ZP-27] about the Meineke automotive shop. In order to avoid an appeal on that petition, there was some information that needed to be brought out but wasn’t brought out correctly. As it turns out, they aren’t going to be coming back. The other thing he is concerned about is when the Page 4 of 14  APPROVED MINUTES OF THE MEETING OF THE PLAN COMMISSION AND ZONING BOARD OF APPEALS VILLAGE OF NILES COOK COUNTY, ILLINOIS November 5, 2012 Board talked about the appearance ordinance. He noticed some didn’t adhere to what the requisites were in order to give approval to the appearance ordinance. He then began the lecture. On the overhead was a display of the different points Mr. Annunzio will discuss. An attachment at the end of these minutes is the entire outline for Mr. Annunzio’s presentation. He then brought up the case Klaeren v. Lisle. This had to do with a Special Use for a Meijer grocery store in Lisle, IL. The surrounding community did not like it. The hearing went on for hours. It was approved by the Zoning Board and then by the Village Board. It was appealed by the residents of Lisle and the decision was overturned. Whenever the Zoning Board gets together to make a decision they should be acting in a quasi-judicial manner. That means all issues before the Zoning Board must be given all due process rights as enumerated in the United States and Illinois constitutions. Everybody who comes to speak on the subject has a right to be cross examined by the petitioner or somebody else in the audience. It means you have a long, drawn out hearing. Quasi-judicial doesn’t set with what is done here namely administrative in nature; that has a whole different set of rules. Basically what this Klaeren decision did was throw how Zoning Boards of Appeals handle cases up for grabs. Everyone had an equal chance to talk; everyone had a chance to cross examine those who spoke. A full record was made; decisions were made in terms of being a court as opposed to being a legislative hearing body. The State Legislature got involved and overturned Klaeren. So what we’ve been trying to adhere to is no longer law in Illinois. Now law is 1) all decisions are legislative in nature – we are not quasi- judicial anymore – we are quasi-legislative. We are an administrative hearing body. That takes a lot of burden away from this Board as to how you handle a hearing. 2) Substantive and Procedural Due Process still applies; 3) Decisions shall be subject to de novo judicial review. This is different than any other administrative hearing situation. Normally what happens when something is appealed the only thing the court would look at is the record as it is created. In this particular instance the Legislature has decided it is just not our record that is created here but now they are able to look at everything, whether or not it is in the record. Remember that all the decisions are now legislative in nature; we still have to follow procedural due process and Page 5 of 14  APPROVED MINUTES OF THE MEETING OF THE PLAN COMMISSION AND ZONING BOARD OF APPEALS VILLAGE OF NILES COOK COUNTY, ILLINOIS November 5, 2012 everything we do now in an appeal is de novo. Legislative acts mean: they will be upheld as long as they [legislative acts] represent a rational means to accomplish a legitimate purpose. That is what has to be done here from now on. Mr. Annunzio went on to explain rational means and legitimate purpose. You are to give everyone a chance to air their views. No cross examinations anymore but if they come to the podium you must let them talk. Roberts Rules allows constraints. You can give them three minutes a piece, five minutes a piece; you can ask them not to repeat what someone else has already said. You are looking to protect the integrity of the zoning code. Commissioner Surace stated he felt Chairman Kanelos ran last month’s meeting in an orderly fashion giving everyone a chance to talk. The Meineke case brought out a lot of neighbors – all having something to say. Mr. Annunzio agreed that Chairman Kanelos did run the meeting in the proper manner. Arbitrary & capricious decisions are legal terms. The decision is not based on anything in the record; it is just devoid of thought. That is good for us. In order for us to get overturned now we have to completely mess up. When it was quasi-judicial the burden was a lot easier for someone to turn us over. Now that we are quasi-legislative it will be much harder for someone to overturn a decision made here. Mr. Annunzio went on to explain the LaSalle Factors. This was based on LaSalle National Bank v. Cook County. Regarding existing uses and zoning of nearby property, you need to consider the code and how it relates to this particular piece of property. You need to see how a particular piece of property relates to certain communities. It may fit the zoning district but it may not fit the neighborhood. You need to find facts that support that. There are other factors that need to be followed. Commissioner Dubiel said therefore an existing use that is already R-5 - let’s say he is looking to put in high density in a neighborhood that is already high density – it would be consistent with that type of neighborhood. But if it was an R-1 v. an R-5 then you might say it is too dense or too little dense. Mr. Annunzio said yes and this is where it gets tricky and where the Meijer’s case got messed up. Also it was a business district where Meijer‘s would be located across the street from lovely homes in an R-1 district. Just because it Page 6 of 14  APPROVED MINUTES OF THE MEETING OF THE PLAN COMMISSION AND ZONING BOARD OF APPEALS VILLAGE OF NILES COOK COUNTY, ILLINOIS November 5, 2012 is zoned for a particular district you have to take into account the surrounding area. Commissioner Schulter asked if they ever built that Meijer’s store. Mr. Annunzio said he thinks they did. Commissioner Nakanishi asked if that situation is like the Whole Foods store going up in Park Ridge at Touhy & Washington. There was an outcry from the citizens about that. Directly across the street is R-1. Mr. Annunzio said apparently no one appealed it. As a general proposition, whatever you decide here is the law of the Village. We only run into trouble if someone wants to appeal your decision. You can always use a little bit of discretion. This likelihood of appealing this last Special Use is low. You don’t have to spend as much time creating a record as you would if you were talking about the automotive repair store from last month. You also need to factor in the community need for the purposed use and the care with which the community has undertaken its land use development. The more closely we adhere to our zoning code, the stricter we can be. The Village has hosts of Variations and Special Uses and at some point the zoning map will begin to weaken because we aren’t that concerned with our own zoning map since we are allowing all these variances. Commissioner Dubiel asked in the long-term should they be reviewing the zoning code. Commissioner Schulter asked a question regarding the Meineke case from last month. Does it make a difference if the structure was already in place? As opposed to new construction. Mr. Annunzio said the fact it was an existing building and it was empty for a few years is a factor that needs to be considered when looking at the LaSalle factors. Commissioner Schulter said the neighbors were questioning the safety of the children; the property values will go down and so on. He didn’t want to be the one to say you know you are already living in a business district and there was an existing business there for many years. He didn’t feel he should say that to the people. Page 7 of 14  APPROVED MINUTES OF THE MEETING OF THE PLAN COMMISSION AND ZONING BOARD OF APPEALS VILLAGE OF NILES COOK COUNTY, ILLINOIS November 5, 2012 Chairman Kanelos said there is nothing wrong with saying that. It isn’t the only thing that influences their decision. Mr. Annunzio said when someone puts into the record that the traffic pattern is dangerous, now that has become part of the record. The petitioner should show there was a study done and there is nothing wrong here, the traffic pattern is fine, it will be safe. Commissioner Dubiel asked if it had to be a separate study or is the recommendation of the Building Department sufficient. Mr. Annunzio said the trouble is that these are decisions that judges make. It is more important that Gewalt-Hamilton do a traffic study rather than the Community Development Department. Chairman Kanelos said then if people bring up a traffic problem and the petitioner says there is not going to be a problem with traffic, the Board can ask the petitioner to show a traffic study and then continue the case to the next month. Mr. Annunzio said since this is legislative and not judicial you don’t have to give that person any weight whatsoever. This is simply to avoid an appeal. Say someone says they have lived there twenty years and they know a child is going to get killed there. They probably are an expert on the traffic at this corner but someone has to say something to this person to rebut what they said; if you don’t say anything you can be labeled as arbitrary and capricious. It doesn’t have to be a cross examination. You can just rebut their testimony. Commissioner Dubiel asked about the definition of community need. Is it just in that district or in the entire community of Niles? Is it across the street in Chicago? Mr. Annunzio said the entire surrounding area including Chicago. Let’s say someone wants to put in an auto repair shop and there are already two nearby. By adding a third one, the need is already less. Commissioner Dubiel said if the first two shops are packed with customers there could be a need for a third shop. Chairman Kanelos said then the petitioner has to come forward and show Page 8 of 14  APPROVED MINUTES OF THE MEETING OF THE PLAN COMMISSION AND ZONING BOARD OF APPEALS VILLAGE OF NILES COOK COUNTY, ILLINOIS November 5, 2012 why it is necessary for the public convenience at that location. That is a fair question. Mr. Annunzio said by asking that question you are not acting arbitrarily anymore. Now you are acting in a rational manner to come to some sort of conclusion. There is no right or wrong conclusion now. It is only acting rationally. Commissioner Troiani said they were always told the Board can’t tell people how many stores they can have on a block as long as they fall into the proper zoning code. If there are four automotive stores in an area and someone wants to put in a fifth, the Board doesn’t have a right to limit that. Mr. Annunzio said this is not written in stone. These are things that must be looked at. Commissioner Dubiel said it sounds like these things are quasi-judicial. Mr. Annunzio said no, that would be if there would be an open argument such as a defense and a prosecutor. Here you don’t have that. You are here to absorb and obtain information. Commissioner Surace said going back to the Meineke case, one of the neighbors brought a lot of information and he felt the Board was at a disadvantage. Mr. Annunzio said an opponent gave a list of dangerous compounds that could be generated from this business. That means nothing. It sounded scary but it was not in context with anything. Chairman Kanelos said the petitioner could then say that children will not be in contact with those chemicals. Mr. Annunzio said there are a lot of laws to make sure those types of chemicals are treated properly. He then said the petitioner for the Meineke shop didn’t seem to think he needed a permit for fumes emitting from the stack. In fact, he would need a permit. Commissioner Dubiel said in the Meineke case he saw the father and son petitioners prepared to discuss their business. When they came to the Board Page 9 of 14  APPROVED MINUTES OF THE MEETING OF THE PLAN COMMISSION AND ZONING BOARD OF APPEALS VILLAGE OF NILES COOK COUNTY, ILLINOIS November 5, 2012 meeting is was a hostile situation. From there it seemed to unravel. Chairman Kanelos said someone could have asked to continue or postpone the case until the next meeting. He then asked if continuing is the same as tabling. Mr. Annunzio said you can call it either but he prefers to call it a continuance. And if you chose to continue a case, there has to be a motion and then a second and finally a vote. Commissioner Nakanishi asked the purpose of continuing. Mr. Annunzio said to ask the petitioner for additional information so that when you come back to the case, you can rebut what is being said or have no information to rebut what they are saying. Commissioner Schulter said if they are asking the petitioner to get additional information, can they request it two weeks before the next meeting so they have time to look at it? Mr. Annunzio said absolutely. Vice-Chairman Dimond said it is statutorily required they make certain findings on rulings for Special Uses. There are similar findings for variations. Are the LaSalle factors overlaid in addition to these findings? Mr. Annunzio said to think of them as a backdrop. Commissioner Dubiel then went over the eight LaSalle factors with additional comments. Commissioner Schulter said if someone does appeal their decision, does it go in front of the Board of Trustees? Mr. Annunzio said the decision the Board of Trustees makes is determined by the record that is created here [meaning at the Zoning Board meeting.] Commissioner Schulter said to consider the Meineke case. It didn’t pass. Then it never made it to the Board of Trustees. If they appeal it then it would go to the Board of Trustees. Page 10 of 14  APPROVED MINUTES OF THE MEETING OF THE PLAN COMMISSION AND ZONING BOARD OF APPEALS VILLAGE OF NILES COOK COUNTY, ILLINOIS November 5, 2012 Chairman Kanelos said how does the Board of Trustees decide? Mr. Annunzio said they take a look at your [Zoning Board] record and say sorry but the facts were presented in such a way they think your conclusion is wrong. They can either pass it or send it back to the Zoning Board to get more information. There was more discussion regarding the Meineke case if they were ever to be challenged. The finding of fact doesn’t have to be articulated as long as it is in the record. That is what happened last month. A positive motion was defeated to allow a Special Use. Mr. Annunzio gave another example. Let’s say you take something and vote it down. The petitioner can still go to the Board of Trustees and have them make their decision with the record created at the Zoning Board. That Board looks at everything that was recorded with the Zoning Board and they vote no also. That is the last appeal. The petitioner then takes it to court and says the Zoning Board acted arbitrary and capriciously in the decision process. That would be different than what we just had – that the facts didn’t support our decision. Commissioner Dubiel said the Board needs to have a substantial amount of facts for the reasoning entered into the record. He feels the petitioner told the neighbors he would do everything that needed to be done to make everything legal, including the EPA issues. Chairman Kanelos said those issues are addressed in the findings of fact. He’s been writing these findings of fact for two and a half years and if he wasn’t doing this correctly he would have been told by now. Mr. Annunzio said what this Board has been doing is good. Now we are going to make it better. Let us now look at the appearance ordinance. It was a giant paragraph. It needs to be broken down into phrases. Under “Appearance”, if it is not a major improvement to an existing building or structure or it is not new it would not be heard by the Zoning Board. An example: two months ago there was a petition for a new house to be built. It came before this Board. Then you go to step 2: that it is distinctly inferior or very different. You need to explain why it would be one or the other. They are looking at design only. Then does it impair the marketability or property values of existing buildings or structure in the immediate vicinity. Page 11 of 14  APPROVED MINUTES OF THE MEETING OF THE PLAN COMMISSION AND ZONING BOARD OF APPEALS VILLAGE OF NILES COOK COUNTY, ILLINOIS November 5, 2012 Vice-Chairman Dimond brought up the point if the petitioner calls in an expert to the Board and this design is good enough for the vicinity, how does the Board handle that? This new design may stick out like a sore thumb. Mr. Annunzio said you listen to all the facts and sometimes you just have to go with your gut feeling. Commissioner Dubiel gave an example from twenty-five years ago about a block on Maude St. in Chicago. Within five years all the single family, asphalt shingle homes and two flats were replaced by townhomes with modern brick, flat roofs and distinctly different that what was originally there. He feels this part of the code [architectural design] is subjective. Mr. Annunzio said that is why we are going through all this. To show the court we made a rational decision using the facts that were presented. Whatever decisions the Board makes, please don’t say no “because I think it is ugly.” You must back it up with something. Next are the facts on how the exterior walls should look. Vice-Chairman Dimond said she understands this to mean the home being built or remodeled should have the same materials as the rest of the neighborhood. Commissioner Dubiel said no, this ruling is just for the building itself. But when they see the drawings at the meeting, they can’t tell if the materials are harmonious. It seems so subjective. Is there a more objective criteria? Mr. Annunzio said the appearance is totally subjective. We are doing the best we can to make a rational decision on a totally subjective question. This is a tough one. Mr. Ostman said when you start saying “50% masonry” that falls under the building code. That doesn’t really pertain to the request. Commissioner Dubiel said forget about zoning for a minute. If you look at question number two [on the overhead] now you’re a designer. Now you have put us in the building code. Mr. Annunzio said no. All they are asking is that exterior materials work Page 12 of 14  APPROVED MINUTES OF THE MEETING OF THE PLAN COMMISSION AND ZONING BOARD OF APPEALS VILLAGE OF NILES COOK COUNTY, ILLINOIS November 5, 2012 together visually. Whether or not it meets the 50% is a different issue. If it doesn’t, the permit won’t be issued. If it does, the petitioner passed the appearance aspect. Chairman Kanelos said the Board has to assume the Building Department is going to enforce the code which is 50% minimum. Mr. Annunzio said he also needs to talk about Special Uses but they will do that at the next Board meeting. Mr. Ostman said the entire code is going to be rewritten. Commissioner Dubiel said Mr. Ostman may want to strike the appearance code. It seems to him this is so subjective it violates some due process. The finding of fact is really the finding of opinion. He feels the law is vague. Vice-Chairman Dimond said she feels it is a very important part of the code. Commissioner Dubiel said there is a first amendment issue here also. Right now the code is such you could have a purple painted house. You don’t know what color siding will be put on. Historically in villages it has been very easy to bring political pressure on certain people [not in this case]. We tend to make laws and think the good guys will have a handle on these laws and they will be fairly enforced. This is so subjective that in the wrong hands it could be misapplied. Mr. Annunzio said Park Ridge has a strict appearance code. Now no one wants to build there. That has to be considered too. Vice-Chairman Dimond said there is no first amendment right to have your house look how you want it to look. She feels giving this Board the right to have some control over the appearances of structures in Niles is important to the look of the Village and is important for everyone in the Village. It merits further discussion later. Mr. Ostman said there is no December 2012 meeting so the rest of these things will be discussed at the January 2013 meeting. Chairman Kanelos then entertained a motion to adjourn. Page 13 of 14  APPROVED MINUTES OF THE MEETING OF THE PLAN COMMISSION AND ZONING BOARD OF APPEALS VILLAGE OF NILES COOK COUNTY, ILLINOIS November 5, 2012 Commissioner Dubiel moved to adjourn. Seconded by Vice-Chairman Dimond, on roll call the vote was: AYES: 7 Dimond, Surace, Troiani, Nakanishi, Schulter, Dubiel, Kanelos NAYS: 0 There being seven (7) affirmative votes the motion carried. The meeting adjourned at 8:15 p.m. ATTACHMENTS Village Attorney Joseph Annunzio’s outline for discussion. Kathleen Janessa, Recording Secretary Page 14 of 14