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Editorial: County Board fails land-use test

March 31, 2010

By Stuart R. Wahlin
Staff Writer

During the three-year process of developing Winnebago County’s new 2030 Land Resource Management Plan, adopted last year after hundreds of thousands of tax dollars were invested, a recurring theme of discussion was the county’s inability to abide by its 2010 land-use plan, which resulted in numerous leapfrog developments littering the countryside.

County board members pledged the 2030 plan would be different. But following their failure to stick to the established guidelines for growth March 25, the 2030 plan was rendered impotent in one fell, ham-handed swoop.

In its first real test of the 2030 plan, the county board negated its duty to uphold a fundamental cornerstone of orderly growth by choosing to ignore an overwhelmingly-demanded requirement that new developments be connected to public sewer.

In the spirit of compromise and flexibility, board members drafted two exceptions to this rule in the plan. One exception permits septic systems on lots of 40 acres or more in agricultural districts. The other allows septic for Conservation Design subdivisions, which are clustered developments aimed at minimizing the impacts on open space and natural resources.

The issue at hand March 25 was neither, however. As a result, county board members have set a precedent that will come back to haunt them and the taxpayers for years to come.

In 2007, Gensler Gardens purchased 9.89 acres of agricultural land at 7631 Stillman Valley Road in Rockford Township. Since then, their plan has been to build a few homes on the property for Gensler family members. To make their Garden Estates subdivision a reality, however, several hurdles would have to be overcome.

First, the land would have to be rezoned to “rural estate,” thereby removing the property from any possibility of future agricultural production. The surrounding properties are also designated as prime agriculture. During Zoning Board of Appeals (ZBA) testimony in 2008, however, patriarch Bill Gensler downplayed the land’s agricultural value, citing a steep slope and that 60 percent of the property was wooded.

Greg Tilly, a county planner, noted that forestry is still considered agriculture, even if the trees are not actively being harvested.

Farmland is among Winnebago County’s greatest strengths. That’s why the 2030 plan also strives to preserve the county’s agricultural resources. After all, once it’s gone, it’s gone forever.

Gensler noted his family has other farmland it could build homes on, but that doing so would remove it from agricultural production, suggesting the Stillman Valley Road property would be the lesser of two evils to build on.

Neighbors concerned about losing the area’s quiet, low-density atmosphere, however, noted they’ve been approached by salivating developers to sell their land. The idea of a “mini-subdivision” opening the door for further development was an unwelcome one to neighbors, and who can blame them?

During the ZBA hearing, the Genslers pledged to preserve as many trees as possible, and asserted they have no intention of ever selling the property if they’re allowed to build their homes on the site.

One area resident, Jake Henry, recently questioned how many trees could possibly be saved if several homes and septic systems are to be constructed on fewer than 10 acres.

“It seems like this buying 10 acres, and then calling it a subdivision, is just a way to skirt the law,” Henry told board members.

The danger here is that such promises could be construed to suggest the county—or even the City of Rockford, which allowed for septic in its pre-annexation agreement last year—has engaged in “contract zoning.”

In an e-mail explaining the city’s permission of septic, Rockford Community Development Director Reid Montgomery told The Rock River Times: “The City agreed to this based on 1) The County previously approved residential zoning and the County staff relayed to the City they want to complete the development, 2) consideration for other future agreements with the Gensler family and the limited size of the development.”

According to Useful-community-development.org: “When a particular zoning classification…is placed on a parcel of land, courts have ruled that it is unconstitutional for the municipal government to provide rezoning in return for a promise not to do something that otherwise would be permitted under the zoning ordinance. The term ‘contract,’ in this case, carries the connotation that the municipality has granted the zoning as a favor, on the basis of promises by a developer or property owner not to do something that the public finds objectionable. The idea that historically has made judges cringe is that if there is contract zoning, the zoning amendment is granted as a private benefit, not a public one.”

Although acknowledging it is admirable and understandable the Genslers want to build homes on the property to keep family together, ZBA members seemed to concur that allowing subdivision of the property for this purpose would be nothing short of spot zoning, which has also been deemed illegal on the grounds of inconsistency with land-use plans.

Despite the ZBA’s unanimous recommendation to deny the rezoning request, county board members approved the map amendment by a margin of 22-4 in 2008.

With this obstacle overcome, the Genslers would next seek final approval of the proposed plat. Meantime, in 2009, the county adopted its new land-use plan, which requires connection to public infrastructure. Because the area is not served by the Rock River Water Reclamation District, a variation to waive the county’s sewer requirement would also be necessary if the homes were to be built.

During the March 25 meeting, petitioner Scott Gensler said, “My family is looking forward to being done with this political process and is excited to build our future homes.”

This was not the first time the Genslers have faced opposition, however.

In 2006, Gensler Gardens petitioned the City of Loves Park to rezone about 5.5 acres at Orth and Argyle roads from residential to commercial for a nursery, greenhouses, coffee shop and deli.

Despite objections from neighbors, the city council approved the request.

It has been suggested the Gensler case before the county board was unique, and that the sewer variance should get a free pass, because the family has been planning on it since before the new land-use plan was adopted. If this notion is to be considered valid, just imagine how many other developers and property owners could make the same argument to be exempt from the rules.

If board members are justifying this exception on the basis the land was rezoned prior to the 2030 plan taking effect, not one of them articulated this distinction for the record prior to voting, so it’s not surprising future petitioners haven’t gotten the memo.

By all accounts, the Genslers are good people and good neighbors. But is that enough of a reason to overlook the guidelines to which board members vowed they’d adhere? Board members Paul Gorski (D-5), Pearl Hawks (D-6), Bob Kinnison (R-10), Steve Schultz (R-2) and Dave Yeske (R-2) didn’t think so. They had the foresight to see headaches on the horizon if the county set out on the wrong foot with its 2030 plan.

In reviewing reader comments to related articles on the local daily’s Web site, one gets a sense public opinion asserts that a lesser-known family making the same request to waive the sewer requirement would probably be out of luck. This is a hypothesis that will inevitably be put to the test in the very near future. And regardless of how board members rule when that time comes, they’ll either be playing favorites, or be pushovers, because that’s the precedent that was set March 25.

After failing this first test, there won’t be a second—at least not one that will count for anything. Put a fork in the 2030 plan. It’s meaningless now. The plan itself was fairly strong, but the weakness of your county board members has compromised its integrity from here on out.

Board members will either have to continue making exceptions for others seeking similar accommodation, or taxpayers will pay for more costly litigation if the board arbitrarily decides to begin enforcing its own rules by saying “no” to comparable requests that will surely follow.

From the March 31-April 6, 2010 issue

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