County extends liquor license for embattled convenience store pending litigation

May 12, 2010

By Stuart R. Wahlin
Staff Writer

As of May 1, West Quick Mart, a convenience store at 1002 S. Pierpont Ave., was no longer permitted to sell alcohol, because the Winnebago County Liquor Commission, headed by County Board Chairman Scott Christiansen (R), opted not to renew the establishment’s liquor license through next April.

Christiansen told The Rock River Times the license had not been renewed, because West Quick Mart representatives were not present, which turned out to be the result of the license holder not being notified of the meeting. He said county officials have since met with them, and that the establishment has a green light to resume selling alcohol.

“The bottom line is we did not revoke the special use, so we granted their license,” Christiansen said. “There was a legal issue there, that we were on a little shaky ground, according to our attorneys.”

Meantime, the county is, defending itself in a lawsuit by West Quick Mart property owner Odell Tidwell Sr., while seeking to enjoin the business from remaining in operation. The litigation stems from an alleged error that resulted in the store’s parking lot having been paved to extend over a 5-foot, gravel right-of-way to abut Pierpont Avenue.

The case is set for a bench trial in June, so the county extended the store’s liquor sales through July while awaiting a ruling.

Last August, members of the Winnebago County Board voted 16-9 to deny a variation that would essentially have overlooked what was purported to have been a contractor or engineering error. As a result of denying the variance, board members would effectively cause to business to close its doors, because the parking lot was not in compliance with the zoning code, but West Quick Mart defiantly remains open for business.

Paving the way to litigation

Tidwell ran a fish market on the property for years, and the paved parking lot requirement had been waived for as long as he operated the business at the site. Although Tidwell still owns the property, when Nashwan Ali took over business operations on the site as West Quick Mart, with a contract to buy the property, a gravel parking lot would no longer be permitted under the grandfather clause. A special-use permit was subsequently requested for the new venture at the locale that had otherwise died commercially.

Winnebago County Planning & Zoning Officer Troy Krup explained, “In order to open up a new business, they needed to obtain a special use, which they did, but that special use was granted with the condition that it must comply with all applicable codes, which they were trying to do by obtaining those variations to allow the parking lot to remain in its current location.”

After the newly-paved lot was discovered to have extended into the public right-of-way, Ali petitioned on behalf of Tidwell for a variance to excuse the alleged oversight. The county’s Zoning Board of Appeals (ZBA) and the board’s Zoning Committee recommended approval of the request, but county board members insisted “rules are rules,” and denied the variation.

Following brief comments from Pearl Hawks (D-6), urging denial on the basis of safety issues, Doug Aurand (D-3), George Anne Duckett (D-12), John Ekberg (R-10), Dave Fiduccia (R-4), Angie Goral (D-7), Bob Hastings (D-13), Karen Hoffman (D-11), Kyle Logan (R-3), Randy Olson (R-1), Mel Paris (D-8), Dianne Parvin (R-4), Steve Schultz (R-2), Dave Tassoni (D-7), L.C. Wilson (D-12) and Dave Yeske (R-2) joined Hawks in voting “no.”

“We’ve got to make these people be responsible,” Aurand responded. “Let’s make these people do it right.”

After the variance had been defeated, Krup clarified for board members what their votes meant.

“They submitted a site plan to the zoning division, and that was in compliance with the zoning code. Then, what they installed did not match up with the approved plan,” Krup explained. “The only way at this point to obtain compliance, because of the mistake being different from the approved site plan, is by obtaining that variation.

“The special use must follow applicable codes and ordinances to operate,” he added. “That cannot happen any longer without obtaining the variations that they were seeking, so therefore, the only option left is to close the business to obtain that conformity.”

With the variance having been denied, Krup said, West Quick Mart could not simply tear out the lot without violating other zoning regulations. The store would have to be forced to close, for at least a time.

Sincerity of petitioner,

board members questioned

Krup suggested: “They should have supplied an accurate site plan, that would have been denied. And then at that point, we would have said, ‘In order to put the parking lot in the desired location, you need to obtain a variance.’ Should the variance be granted, then they would redesign the parking lot for that variance, and the parking lot would go in.”

Some board members seemed to suggest the order of events at West Quick Mart was suspect, however.

Meantime, at least one board member showed surprise that the decision would effectively shutter the business. But as the issue later escalated into litigation, Julie Stiles, who said she assisted Ali in applying for the variance, told The Rock River Times it shouldn’t have come as a shock to any board member.

“In triplicate we submitted the forms, and I personally wrote the answers to the questions for the variance,” she explained, noting copies of the responses had been distributed to board members. “This isn’t just a hindrance to the business, it’s also to the neighborhood, because it was done during the summer, so I said how it would make deconstructing the parking lot…terrible for the neighborhood, too.

“And Troy Krup—he told them that the business would close before the vote,” she added.

Krup concurred that staff had advised the ZBA, Zoning Committee and board members that such a vote would result in closing the business.

A staff report to board members indicated, “The applicant is hereby now seeking a Variance from front yard parking restrictions to allow the parking area/lot within the required front yards, and thereby, enabling the business to remain open (if the variations are denied, the business may be required to close because the required parking can’t physically be located on-site due to its small size).”

Ekberg, who’d teetered on the prevailing side in voting against the variation, moved to reconsider the matter later in the evening.

Rick Pollack (R-13), one of several to vote in favor of the request, argued: “[West Quick Mart] was trying to conform with the ordinance, and it seems to me like, whether I’m for the business or not, it seems very unfair if you’ve got somebody putting up money, getting loans and trying to bring a business into compliance, and there’s a mistake made, and the business has to be shut down. I think that’s kind of harsh, myself.”

Instead of putting the store out of business, Pollack and Frank Gambino (R-14) favored allowing time for the store to bring its lot into compliance.

“People make mistakes,” Gambino said, noting a business and jobs were at stake. “I’m not going to say this was intentional. We can’t prove one way or the other, but I think there is room for error. But there also is room for us giving the chance to rectify the situation, and to make it right.”

African-American board members representing the west side of the Rockford area were united in their opposition to the requested variation.

Duckett explained: “I don’t think people realize what alcohol does to the community that Pearl [Hawks] represents. But they’ve had other facilities out there that sell alcohol, and I’m telling you all the west side needs no more alcohol. I just think the safety issue is a concern. I’m telling you, if it was your kids out there, you would not want that four-way stop there [at Pierpont Avenue and Cunningham Road] with the alcohol place there, and all the other stuff that goes on out there. I just think that you have to understand that Pearl knows that district, and she and Dorothy [Redd] were shocked when they found out there was an alcohol permit for them.

“You might be right, Mr. Gambino. You can’t prove it one way or the other,” Duckett acknowledged. “But I’m telling you, if you start doing this where, ‘Oh, I made a mistake,’—I’m sorry, but if I ever build anything out there, and I mess up, I’m gonna make a ‘mistake,’ too, if it’s gonna give me some more time.”

The roll-call vote to reconsider Ali’s variation request was nearly identical to the original motion, with the exception of Ekberg voting in favor, and his motion failed 15-10.

Playing by the rules, sometimes

Board members are not always such sticklers for the rules in similar cases, however.

In November, the board voted to a approve a request by Teresa Cimino, on behalf of Westlake Village residents Pietro and Paola Salamone, to forgive another alleged error that resulted in a deck being built within a required 6-foot setback from neighboring residential property.

Tom Owens (R-1) indicated the deck had only been partially built, and that construction ceased when the discrepancy was discovered.

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

Per the petitioner’s request, the amendment would reduce the setback to 2 feet, but the ZBA found middle ground by recommending to the board a minimum setback of 4 feet.

Bob Hastings (D-13), who’d previously voted to deny Ali’s similar request, moved to eliminate the ZBA’s recommended condition, noting the adjoining property was vacant, and that Westlake developers William Charles—a notable campaign contributor on the local and statewide levels—had no objection to the 2-foot setback.

As a matter of comparison, it should be noted West Quick Mart’s immediate surroundings in the agricultural district, predominantly owned by ComEd, are relatively sparse as well.

Angie Goral (D-7) was among several board members who showed consistency in positions regarding the Ali and Salamone requests, however, right or wrong.

“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,’” she 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?”

Board members ultimately deleted the condition, and the deck was permitted to extend out to 2 feet from the property line, despite objections from District 2 Republicans Steve Schultz and Dave Yeske, who argued the decision would punish future neighbors.

Notable distinctions in the two similar votes were that no jobs or businesses would be lost in the Salamone matter, but that Ali and Tidwell lacked the political clout to woo enough support by elected officials who depend on contributions to remain in office.

Both sides belly up to the bench

Despite denial of the variance, West Quick Mart neither closed its doors, nor corrected its parking lot discrepancy. Meantime, Tidwell and West Quick Mart, Inc. filed for a writ of mandamus, which would essentially ask the court to order the county to correctly perform its duty in the matter. The lawsuit names the county, board members and county staff as defendants.

Essentially an appeal of the board’s decision, the plaintiffs are asking that the variation instead be granted, which would allow West Quick Mart to stay in business at the site. During the process, the store has remained open, but the county filed for a preliminary injunction in October to cease operations, because the site is not in compliance with the zoning ordinance. Judge Ed Prochaska (R) has yet to rule on the requested injunction.

When denying the requested variation, board members did not specifically refer to the six findings of fact upon which the ZBA’s recommendation had been based, and upon which the board’s decision regarding the variation was also to be based. It appears likely the plaintiffs will argue board members must bear the burden of proof the findings of fact had not been satisfactorily met.

For a similar reason, in March 2009, Judge Eugene Doherty (R) overturned a special-use permit granted by the board for the controversial Dyn Cannell, LLC planned community development near Rockton in 2006. (See “Judge overturns county special-use permit” in the March 25-31, 2009, issue).

Doherty ruled the board had failed to justify its reasons for approving the permit, while seemingly ignoring a unanimous vote by the ZBA determining the findings of fact criteria had not been satisfied.

Doherty threw out the special-use permit and sent the issue back to board members to properly refute the findings of the ZBA. In an almost comical exercise, the board went through the motions of individually addressing the six findings of fact in order to come to the same decision to issue a new permit for the project with which prominent businessman and campaign contributor Sunil Puri is directly involved.

Similarly, in the West Quick Mart case, the court could order the variance back before the county board to justify its reasons for disapproval.

“You know, that is a good point,” Christiansen responded when this publication raised similarities between the Cannell and Ali cases. “We’ve got to get this figured out so we don’t get into that.”

Meantime, county taxpayers are footing the bill to litigate two ongoing cases in a dispute over a parking lot.

“I don’t know that it’s that huge a deal,” Christiansen acknowledged of the right-of-way discrepancy. “The bottom line is, we’ve got to have people uphold what the board’s wishes are, so that issue needs to be resolved.”

Meantime, he said, the county will wait to see how the court rules regarding the ongoing dispute, noting West Quick Mart is also exploring the possibility of annexing into the city as another means to resolve the issue.

“I wonder about that a little bit, because I think in our 2030 plan, that’s not identified as a use there,” Christiansen added. “But because it’s pre-existing, maybe they will. The municipalities tend to annex anything we have, just to get the sales tax.”

Attorneys for West Quick Mart did not respond for comment.

From the May 12-18, 2010 issue

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