County’s stance vs. septic faces first test

By Stuart R. Wahlin
Staff Writer

The Gensler family, owners of Gensler Gardens, purchased nearly 10 acres in August 2007 with the intention of subdividing the property into three or four lots to build homes for family members. Bill Gensler’s dream of keeping his children’s families together on the property could face some resistance, however, when the Winnebago County Board votes March 11 whether to honor a request to waive a sewer requirement for the proposed Garden Estates subdivision.

In 2008, the Genslers succeeded in their first step, to re-zone the 9.89 acres at 7631 Stillman Valley Road in Rockford Township from Agricultural Priority to Rural Estate, but not without some opposition.

The property’s high Land Evaluation and Site Assessment (LESA) score of 216, attributed to adjacent agricultural property, gave some Zoning Board of Appeals (ZBA) members reason for pause.

“You’ve got Ag all the way around there,” ZBA member Brian Erickson noted. “If we allow this, would that be considered as spot-zoning?”

Greg Tilly, a county planner, responded that whether it would be considered spot-zoning “is a matter of interpretation.”

Although the land was designated agricultural, Gensler was quick to point out no crops were being grown on the property.

“In my opinion, it is not ever going to be put into Ag ground again, and that’s one of the reasons it appeals to me, because we could build on our present site where I live right now, but that would take ground out of Ag production,” Gensler said during the May 2008 ZBA hearing. “I’m one of those people that don’t like to take ground out of Ag production.”

Gensler asserted his belief that such a subdivision promotes orderly and beneficial development as a residential setting, rather than agricultural. He also noted approximately 60 percent of the property is heavily wooded, and that the slope of the land makes for less-than-ideal farming.

Tilly explained: “One of the things that is part of the LESA score for the board to understand is that even though it is not in row crops necessarily, forestry is considered an agricultural pursuit. So, even wooded lands are considered by the zoning ordinance [according to the LESA scoring system]…as an agricultural pursuit, even though they are not being harvested necessarily.”

Co-petitioner Scott Gensler testified: “We’re going to keep as many trees as we possibly can. That’s the part of this piece that I really love.”

Some neighbors of the proposed subdivision had reservations, however.

Chester Chostner, attorney for adjacent property owner Tim Theden, argued: “It is something very special here. It is not only zoned Ag, but it is prime agricultural land. It is part of the 2010 Land Use Guide. You can see that designation. It is clearly surrounded by property that is an agricultural use.”

Chostner urged ZBA members not to be swayed by the fact the property was not being used for agricultural production at the time, and to keep the land intact.

“I think more importantly, however, the board has to take into consideration that we have a mini-subdivision proposed to this site,” Chostner added. “There are no public improvements there, so we’re going to put at least three more holes in the ground for wells and three more fields to be used for septic systems on this property.”

Neighbors also expressed concerns about added traffic—particularly truck traffic associated with building homes on the property—and the road’s ability to stand up to the additional strain.

Some neighbors described the area’s sparse population density as its desirability, suggesting the quiet, rural area is being eyed for further development.

Francis Healy testified: “I’m afraid the additional subdivision or whatever might promote others to try to increase that area. And my neighbor, Mr. [Laurence] Wiles, has been approached by many real estate companies to sell out his land, and he refuses to do that because of all the farm land that he owns.”

Wiles was reportedly not the only local landowner approached by developers.

“I’ve been approached several times by real estate agents to buy my property as well,” said Tim Farrell, whose family has owned about 200 acres of farmland adjacent to the property since the 1800s. “It is a concern that now that maybe this, what they call, and I agree with it, a ‘mini-subdivision,’ and we’re going to have more aggressive people coming after me to sell my farm land.”

Gensler, however, said he has no intention of selling the property.

Gensler attorney Bryan Selander argued: “This is a family that has bought this property with the hope of allowing their family to continue to live together, grow together, and it is a positive thing. We’re not looking at a developer here that is coming in to ask to put in five streets and multiple homes. We’re looking at a Winnebago County family that is in the agricultural community, running Gensler Gardens for a number of years, selecting to use property that, as testimony you’ve heard based on an expert, no one’s farming. That would not be a desirable place to locate an agricultural use as opposed to using other land that they have that is devoted to that purpose.”

Selander did not respond to requests by this publication for additional comments.

During deliberation, ZBA member Ed Conklin remarked: “I said many times from this point that I wish that there were a way that would allow families to build homes to stay together. But in a situation such as this, I can’t really call it anything other than spot-zoning, and that it is putting a residential area designated for four homes in the middle of purely agriculture land.”

Erickson concurred: “I think they have a great idea to keep the family together, put the houses in there. They all live together. They get along. That’s a fantastic idea. But—and this is a big but—with the tools that we have, we are bound by the zoning codes that we go through, and I would consider this spot-zoning.”

The ZBA unanimously recommended denial of the petition to re-zone the property, but the Zoning Committee and County Board ultimately voted in favor of the Genslers’ request.

Genslers need OK for septic

At the time of the ZBA hearing, the county’s 2030 Land Resource Management Plan was not yet in place. The plan, approved last year, discourages new development absent of public infrastructure.

“All new residential development should be connected to public infrastructure, with the exception of Conservation Design and the 40-acre minimum residential lots in the agricultural areas,” the plan states.

The plan’s growth policy adds, “Development should occur where sewer and water is or will be available, not where well and septic is necessary.”

The Rockford City Council unanimously approved a pre-annexation agreement for the property in November, which suggests the possibility of public sewer reaching the area in the future.

Like the county, city leaders have asserted a desire for residential developments to connect to public infrastructure. The city, however, appears willing to make an exception in its 20-year pre-annexation agreement with the Genslers.

Reid Montgomery, the city’s community development director, noted that because the Gensler property is within a mile-and-a-half of Rockford, the subdivision’s plat is subject to city review and approval.

“Within the [pre-annexation] agreement, the plat is required to be approved by Winnebago County, but does allow for well and septic should the county approve,” Montgomery indicated.

He stated the city agreed to well and septic because the county had previously approved residential zoning, which county staff had indicated they wanted to complete, and on the basis of “consideration for other future agreements with the Gensler family and the limited size of the development.”

According to Winnebago County Planning & Zoning Officer Troy Krup, no ZBA hearing is required for the final plat approval or variation, because such requests are governed by the Subdivision Code, not the Zoning Code.

“The ZBA reviews variations to the Zoning Code,” Krup noted. “The ZBA does not review subdivision-related requests.”

According to county code regarding sewer variations, however, “The county board may grant a variation exempting a proposed subdivision from the requirements imposed by this section. However, prior to granting a variation, the county board shall receive written comments or other input from the public sewer authority in whose area the proposed subdivision is located.

According to Rock River Water Reclamation District (RRWRD) Director Steve Graceffa, Engineering Manager Dana Carroll’s only input regarding the project, provided in August 2008, simply stated, “District sewer is not available to the proposed development.”

According to the 2030 plan, however:  “A major issue identified by the RRWRD was the County’s authorization of developments outside the current service area with approved use of septic systems. This results in situations where these developments are later included in the RRWRD’s service area and require costly retrofitting. The RRWRD prefers systematic growth starting with infill and extending outward from the municipal areas, and does not endorse ‘leapfrogging’ development where the sewer trunk needs to be extended over open space.”

Because no opportunity has been provided for public input regarding the request, and because the county board’s rule barring public comments regarding zoning issues does not apply in this instance, input will be allowed during the public participation segment of the board’s March 11 meeting.

From the Mar. 3-9, 2010 issue

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