County forgives ‘honest mistake’ to grant zoning request

November 18, 2009

News and notes from the Nov. 12 Winnebago County Board meeting

By Stuart R. Wahlin

Staff Writer

Although the Winnebago County Board hasn’t been very forgiving of construction errors in recent days, an exception was made during the Nov. 12 meeting.

As reported in the Nov. 11-17 issue of The Rock River Times, Winnebago County is at odds with West Quick Mart, 1002 S. Pierpont Ave., after the board rejected a variation in August that would have forgiven a parking lot that was paved too close to the road.

County zoning officials indicated the convenience store’s site plan was compliant with ordinances, but that when the lot was paved, it was overextended into the public right-of-way. Although the discrepancy was reportedly the result of a contractor error, board members insisted “rules are rules,” even though the Zoning Board of Appeals (ZBA) recommended granting the variation.

By denying the request, the board would force West Quick Mart to cease operations, but the store defiantly remains open for business.

The county has responded by filing for an injunction, but not before the property owners filed for a writ of mandamus, which would result in a review of the board’s action in the matter. Meantime, the business would be allowed to remain open.

A hearing regarding the injunction was set for Nov. 18.

While the West Quick Mart issue was discussed during the Aug. 13 meeting, the board took a hard stance against forgiving alleged “mistakes,” and there was a clear sense not all board members believed it to have been unintentional.

In December 2008, the board unanimously denied a special-use permit for a commercial rodeo facility in an agricultural district on approximately 85 acres next to the Sugar River Forest Preserve. The request for a permit only came after the county discovered events were already being held on the property, but property owner Enrique Jaime said he hadn’t been aware such a venture did not conform.

Board members didn’t accept Jaime’s plea of ignorance, and the request was denied.

“I think he got a little ahead of himself,” County Board Chairman Scott Christiansen (R) said. “He kind of built it before he had any permits.”

The county later filed an injunction when it was learned Jaime was planning another rodeo for Aug. 1, causing cancellation of the equestrian event. A hearing on a motion to dismiss the petition for injunction is scheduled for Dec. 15, while a preliminary injunction remains in effect.

During the Nov. 12 meeting, however, board members were far more forgiving.

On behalf of Westlake Village residents Pietro and Paola Salamone, Teresa Cimino requested an amendment to permit a side yard setback of 2 feet, rather than the required 6-foot minimum. The request came as the result of an alleged error during a deck-building project on the home at 12878 Clearwater Pointe in Pecatonica Township.

Tom Owens (R-1) reported the deck was partially built, but that construction stopped when the matter was discovered.

“I think the issue was an honest mistake made either by the petitioner or the builder,” Owens asserted. “If this [petition] goes down, they have to remove the deck, but they also have to remove a sunken stone patio as well.”

In committee, a condition was added to the ZBA’s recommendation for approval as a compromise of sorts. The condition stated, “The deck shall be redesigned to provide no less than a 4-foot side yard setback instead of the 2 feet shown on the applicant’s site plan.”

When Bob Hastings (D-13) moved to eliminate the condition, however, the otherwise typical zoning issue became contentious.

Hastings indicated the adjacent lot is vacant, and that its owner, developers William Charles, had no objection to the amendment.

But Dave Yeske (R-2) noted, “Nobody’s objecting, ’cause nobody lives there.”

Bob Kinnison (R-10) added, “I understand that the current property owner wouldn’t have a problem, but remember that there may be future property owners that may have a problem with that.”

Likewise, Angie Goral (D-7) noted her support of the measure was dependent on the condition remaining in place.

“What’s there today isn’t there tomorrow, and that could be a problem,” Goral agreed with Kinnison. “At this time, it might be an empty lot, but tomorrow, it isn’t.

“What we’re saying to a builder: ‘It’s OK if you go ahead and draw these plans and they’re not in compliance. But we’re gonna go ahead and let you have it,’” Goral argued. “What are we saying to builders—that we have rules and regulations, but you don’t have to follow them when you’re doing your plans?”

The motion to delete the condition prevailed in a voice vote, but Yeske called the 2-foot setback “way, way off base.”

Uncomfortable with setting such a precedent, he explained, “We do have some leeway sometimes, and 2 or 3 feet out of 60 or 45 is one thing, but this is way too much movement here—this is two-thirds.”

Because developers William Charles have no plans for the vacant lot, Tom Owens (R-1) suggested the setback be increased for that property to prevent a home from being built too close to the property line later.

Steve Schultz (R-2) and Yeske, however, said that would punish the future property owners.

“The change that Mr. Owens is suggesting makes good sense in terms of the property that’s in question,” Schultz acknowledged. “The difficulty is it actually illustrates why I’m going to be voting against it, because it’s a punitive impact on the neighboring property. The current owner is not the one that will end up living in that property.”

Yeske argued, “I can’t believe we’re talking about, to correct this, we’re gonna ask the next owner to come in and ask for a special-use permit so he can move.”

Also resistant to Owens’ suggestion, Mel Paris (D-8) said the zoning should be left as is to avoid problems. By having to amend the adjacent property’s setback, Paris added, the board would just be making more work for itself.

The request was ultimately approved in a 15-10 vote. George Anne Duckett (D-12), Goral, Pearl Hawks (D-6), Karen Hoffman (D-11), Kinnison, Paris, Dorothy Redd (D-6), Schultz, L.C. Wilson (D-12) and Yeske voted “no.” Frank Gambino (R-14), Paul Gorski (D-5) and Kyle Logan (R-3) were not present for the vote.

From the November 18-24, 2009 issue

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