By Stuart R. Wahlin
Less than three months after the $355,000-plus Winnebago County 2030 Land Resource Management Plan was failed by those who adopted it, Winnebago County Board members will either try to redeem themselves June 10, or prove once and for all that, on their watch, taxpayers only exist to be taken advantage of by private interests.
In March, the board voted 22-5 to disregard years of work that led to a policy strongly encouraging that new developments connect to public sewer and water. On the other hand, to suggest something is not the same as requiring it, and the county board made its bed to welcome a never-ending caravan of folks who’ve taken notice that it’s not difficult to twist the arms of board members.
Even as the 2030 plan was in development, this publication recognized the fundamental difference between requiring and merely recommending responsible development. Rather than taking a hard line with developers seeking shortcuts, county officials only gave lip service to constituents by saying that new developments should—not shall—connect to public infrastructure.
“The power is in the language,” stressed Frank Schier, editor and publisher of The Rock River Times, to Zoning Committee members who were weighing the merits of “shall” and “should” as the 2030 plan was being finalized. In the end, however, board members decided “shall” was too restrictive, and developers couldn’t be happier.
The precedent was set in March when board members overwhelmingly chose to make an exception to the community’s wishes by allowing the owners of Gensler Gardens to develop a private subdivision for their family on septic systems. Some may call it a pat on the back for a good family that brings in a lot of taxes for the county, but it sent a strong message that board members were pushovers when it came to how serious they were about encouraging connection to public infrastructure.
Starting off on the wrong foot with the new 2030 plan, that poor decision is already haunting board members, and will continue to do so for many moons to come. The arbitrary nature of such decisions is bound to cost taxpayers, too, in the way of lawsuits by those who cry, “But you did it for those guys.”
Based on the prevalence of sprawl, and wanting to encourage infill instead, the City of Rockford has taken—and actually adhered to—a similar stance against leapfrog development. But developers in unincorporated areas clearly view the county’s zoning process as a way to undermine the city’s wishes with regard to territory Rockford will one day absorb within a mile-and-a-half of its borders.
Now comes the case of Rt. 20 Rockford, LLC, based in Palatine, which wants to rezone about 10.26 acres from agricultural to light industrial at 7725 and 7779 W. State St., just east of Weldon Road, in Winnebago Township. The site would be developed on well and septic, rather than public water and sewer. County board members will decide June 10 whether to grant the request.
Developer’s first attempt
This isn’t the first time Rt. 20 Rockford, LLC, has sought a map amendment to rezone the site. In 2007, the Palatine developers brought forth two zoning petitions. One requested that the land be rezoned for multi-family residential, which would consist of more than 40 condominiums built on a large septic field. The other asked to rezone 2.75 acres of West State frontage to commercial for a shopping center.
After the residential component previously failed before the county’s Zoning Board of Appeals (ZBA), based largely on sanitation concerns, Palatine attorney Kerry Lavelle returned about six months later to try again.
Lavelle began by asserting to the ZBA that he had the support of County Board Chairman Scott Christiansen (R), Deputy Administrator Earl Dotson Jr. and Director of Regional Planning and Economic Development Sue Mroz.
“Even though the city was asserting their rights in that they would like to see sewer and water here, so would we,” Lavelle acknowledged. “But, it’s not going to happen for a long time. …If we relied solely on the city for their development of west Rockford—we believe it is a blighted area, and the chance of this becoming really integrated with their growth is very remote. I think it’s a long way away. What we would like to do is certainly put together a system for water and septic to ultimately tie into the city when the city comes out our way.”
The city has maintained such development would be “premature.”
Among other objections, neighbors argued 45 units on 10 acres was simply too much for the soil to handle in terms of septic, but Lavelle suggested things could be worse.
“We think it’s a vast improvement. There’s an enormous amount of charm in the community as it stands now, but change is going to happen,” he said. “Currently, the zoning in that back area in the 2010 plan, I think, is for industrial. So, for the folks that live there in an area that we would all like to live at, industrial is not a favorable change.”
ZBA member Ed Conklin concurred the area is destined for change, but didn’t consider the request “good zoning.”
“It is spot zoning,” Conklin argued. “There are no similar uses in the area that the approval and construction of this piece of property will have a substantial impact on the future development of surrounding properties. I think that for us to take action on this piece of property before the longer-range plan is available would be to limit the potential use of the entire area.”
Ultimately, ZBA members voted 4-0 against the residential component, and Lavelle walked away with only the commercial element. He withdrew the residential petition before it reached the county board, but he’s returned with new plans.
Neighbors didn’t want condos, so developer proposes industrial
In May, Lavelle, represented by fellow attorney Lance Ziebell, was back before the ZBA with a request to rezone the 10.26 acres for light industrial, which Ziebell argued is consistent with both the city and county long-range plans.
Nevertheless, the issues of sewer and water remained.
“Right now, there is not water on the property,” Ziebell acknowledged. “My understanding is that the nearest water and sewer mains are some distance from the property, and it would be cost-prohibitive at this point to be the sole person responsible for running water to the site.”
Ziebell said the developer is willing to pay his “fair share” to eventually connect to sewer and water, which would leave taxpayers to pick up the rest of the tab.
“First, the public utilities and facilities make up only one part of the  plan,” Ziebell stressed. “While I don’t doubt that it is a significant piece of the plan, and it is an understandable part, it is just one part.
“In terms of the language, the public utilities and facilities portion of the plan states that new development should connect to public infrastructure,” he noted, arguing water use for light industrial would be minimal. “‘Should’ is not a requirement. The plan does not state that all new development has to have water—just that it should. Again, the language of the plan deals with one of the tools that the county has in place to control future growth and development is to require the majority of new development to connect to public sewer and water. That does not say that all projects have to connect to sewer and water.”
While the county’s language is wishy-washy, the city’s position is more rigid.
Todd Cagnoni, acting director of the Rockford Community and Economic Development Department, argued: “It is not orderly development, there is no infrastructure, sewer and water, to the east of the property, and they are not easily or readily available to serve the property. We believe that should be taken into consideration within land-use decisions such as this, and without it, that the zoning is premature. The applicant has stated that the plan was consistent with Rockford’s 2020 plan. We are of the opinion that it is not. The 2020 plan adopted by the City of Rockford does require public infrastructure for development.”
Turning his attention to the county’s 2030 plan, Cagnoni added, “The most important strategy would be for elected and appointed officials to refer to the plan and make a conscious effort to use the policies and recommendations in their decision-making policies.
“The important point is, when we start taking development out of the sewer basin and allowing it to happen on well and septic, we shift the burden and the cost of that public infrastructure on to our taxpayers, because the developer is not paying for it,” Cagnoni explained. “The applicant is a developer. He has a piece of property that he wants to market for sale and, in essence, it is going to be the result of the taxpayers that are going to have to pay to provide the public infrastructure, and we don’t think that is a solid land-use policy.”
Ziebell, who asserted the developer has no plans to sell the property, seemed to argue, however, that it’s reasonable for the public, in the name of progress, to share the burden for private gain. He said the developer is offering to install well and septic that can later be retrofitted to accommodate public infrastructure.
“We are willing to pay our fair share to have water run out there, and sewer run out there, but it is a small parcel,” he noted. “Paying the entire cost ourselves, of running this sewer and water to the site, is just cost-prohibitive at this point.”
Cagnoni disagreed with Ziebell’s assertion that the developer would pay his “fair share,” however.
“In my experience,” Cagnoni said, “and seeing development both with the city and the county, I can’t think of one example in which someone has been retrofitted for public sewer or public water and the taxpayers didn’t pay for a portion of it. Typically, once the developer is not required to provide that infrastructure upfront when the development takes place…the taxpayer funds the retrofit, or that facility subsidizes it only in part.”
Nevertheless, Ziebell seemed to argue the developer’s offer is generous.
“We have made good faith, if not more, effort to cooperate and work with the City of Rockford to try to resolve this issue,” Ziebell said. “Their position was, and I assume it still is, that unless we are willing to foot the entire bill of having water and sewer run to this parcel, then it is premature to have the property rezoned at this time. In essence, their argument seems to be that they would prefer the property to remain vacant until sewer and water are available at this site.”
Meantime, the developers don’t even have a potential tenant eager to utilize the site.
“There hasn’t been a whole lot of interest in the property at this time,” Ziebell confessed, much to the confusion of ZBA member Peter Scordato.
“If you don’t have a tenant in mind,” Scordato asked, “why are you in force today, instead of maybe at a point in time when you do have a tenant, or when there are plans to actually start building?”
Ziebell explained: “I think the easy answer there is timing. …I think they would prefer to be able to go right in when the project is ready to go, and get it going, as opposed to then having to start the zoning process, and then possibly facing a two-, three- or four-month process with no guarantee.”
According to Ziebell, permitted uses under the light-industrial designation include “production processing, servicing, testing, repair or storage of materials, goods or products.”
Scordato wondered, however, what impact industrial chemicals and solvents may have on the proposed septic system.
Ziebell responded, “In terms of any kind of manufacturing or hazardous-type materials, I imagine it would be very difficult to fit into this particular zoning classification—not impossible, of course.”
He said the developers imagine the site being used more for storage than any sort of manufacturing, which also means the project has little potential for jobs.
Cagnoni questioned the economic development value of the petitioner’s proposal.
“I don’t believe throwing industrial in areas that is premature is going to create economic opportunity,” he argued. “I think we have had a lot of private and public investment within the infrastructure within industrial land, and there are opportunities for those businesses to go there. And why not support those investments, rather than take away from them by allowing other individuals to come in and not have the same standards of development to follow by not having the sewer and water?”
Although acknowledging the site is destined for change in the future, Cagnoni maintained the proposed project is premature, and that it ignores the city’s inventory of available industrial sites. He estimated the region’s industrial vacancy rate to be 8 to 9 percent.
“We do have areas that are in the 10-acre parcel size that are readily available for development with public infrastructure, transportation, and sewer and water,” he noted.
Ziebell retorted: “[Cagnoni] said that this zoning was premature, but didn’t provide a timeframe for anybody as to when it will not be premature. There is no intention right now of ever putting water out there. And so, in other words, the owner of this property now, and future owners, are at the mercy of when and if water is, in fact, ever run out there, and we don’t know when that is going to be.”
ZBA juggles long-range map vs. long-range policy
Although the proposed map amendment appears consistent with the city and county visions that the area will one day be used for light industry, the request belies their guidelines regarding connection to public infrastructure.
“It complies with that portion of the map, but the policy portion…is where we have a dilemma here now,” explained ZBA Chairman Jim Webster (R).
ZBA member Brian Erickson added: “On one hand, we are saying he shouldn’t do it, because of the utilities. But then, if you look under [policy] No. 3, you get economic development—‘Promote economic development throughout the county that balances the need of current and future economy with a high quality of life standard.’”
Erickson described himself as being “on the fence” regarding the petitioner’s request.
“Do we wait with our economic development because of sewer and water?” he deliberated. “Well, according to the City of Rockford, we should. Well, that is a good point, but times are hard. We have to do everything we can in this community to help it come back. We have the highest unemployment there is, and that is where, to me, the economic development part comes in. We have to help our businesses survive. We have to bring in business in order to keep our taxes low.”
For ZBA member Tom Walsh, however, Cagnoni’s argument regarding the availability of industrial properties served by public infrastructure struck a chord.
“Why should we add more property for the same zoning that is outside the areas that are served by the utilities currently, and outside the area that has plans to extend utilities to that area?” Walsh asked colleagues.
Conklin responded: “Any time you are looking at industrial development, you always have to weigh the cost of purchase, construction of a new facility that meets your needs, versus the cost of purchase and either modification or demolition and rebuilding of an existing property. I personally strongly favor using existing facilities, or taking down that which is not suitable. However, economic reality says that, in most cases, that is probably not the smart business decision.
“We are faced here with a chicken-and-an-egg situation,” Conklin added. “I am strongly opposed to leapfrog development, but I don’t think this is leapfrog development. I think this is orderly development, according to the long-range plans of both the city and the county.”
On to the county board
Scordato and Walsh cast the only votes against the petition, but with only five members present, three favorable votes were not enough to garner a ZBA recommendation to approve the requested map amendment. The issue then moved to the county board’s Zoning Committee for deliberation. The committee voted to recommend denial of the petition to the full board.
After reviewing the minutes from the hearing, Zoning Committee member Dave Yeske (R-2) said he feels ZBA members appeared to have given too much weight to the long-range map, and not enough to the policies of the 2030 plan.
“A map’s nothing,” he told The Rock River Times. “It’s meant to help people look at the county, and the county is saying, ‘We see industrial development going here, or residential here.’
“It doesn’t mean anything else. You look at the plan to find out what that means,” Yeske added. “It’s in complete contradiction to the land-use plan, the 2030 plan, which requires [editor’s note: technically, only suggests] sewer and water out there.”
Yeske paraphrased the reasoning of the three ZBA members to vote in favor as, “‘Because it shows light industrial on the map, then it must be OK.’
“Well, it’s not OK,” he asserted. “We wanted to push for annexations when possible, and this is within that mile-and-a-half. That’s why Rockford is saying: ‘Hey, if you wanna do light industrial out there, you’ve got to come to us, and let’s talk about sewer. Who’s gonna pay, or when are you gonna hook up?’”
But as long as county officials are more forgiving, developers will continue to snub the city.
“If you can go to the county and get the zoning without messing with the city, you just bypass whatever they want,” Yeske noted. “Sometimes, it pits one against the other. That’s not good for the public.”
Yeske fears board members inclined to support the request will use its purported consistency with the long-range maps as an excuse to approve the rezoning.
Because the city is objecting to the petition, supermajority approval will be required to pass the map amendment. That, combined with recommendations for denial by the ZBA and Zoning Committee, will make it difficult—not impossible—for the measure to prevail. But a recent change in the way information is presented to board members could tip the scales in the developer’s favor.
On committee and board agendas, until recently, zoning issues were typically presented as either being consistent with, or in contradiction to, the land-use plan. In the case of the Lavelle petition, the matter was presented to the Zoning Committee only as being consistent with the long-range map, but with an asterisk.
At the bottom of the agenda, in very fine print, the asterisk noted: “Consistency response only reflects the Plan map; it does not address if the request is consistent with all of the goals, objectives, and policies within the Plan.”
In other words, the request is in direct conflict with land-use policy, leaving one to wonder why this fact is downplayed in small print. Instead, by touting the petition as being in conformity with a vision of the future as depicted on a map, board members are invited to once again throw the new land-use plan out the window.
Troy Krup, planning and zoning officer for the county, indicated the change can be explained by the adoption of the 2030 plan more than a year ago to replace the 2010 plan, which was essentially only a map without policies to back it up.
“The response has always been with regard to the map,” Krup explained. “Now that we are working with the 2030 plan, the response has been updated with an asterisk to make it clear that there are policies as well now that should be considered in addition to the map.”
Regardless, prior to adoption of the 2030 plan, the language presented to board members never indicated whether a petition was consistent with the long-range map. The information always specifically referred to the land-use plan.
Krup’s explanation does not seem entirely accurate, because even well after the new plan had been adopted, evidence shows that Zoning Committee materials stated whether zoning requests were consistent with the “2030 Land Resource Management Plan.”
More requests on the table
As warned by this publication prior to approval of the Gensler variation, board members are now being inundated with similar requests to make exceptions to its stance regarding connection to public infrastructure.
June 7, the Rockford City Council formally objected to another petition before the county to rezone 10 acres from agricultural to commercial.
The property on North Main Road in Owen Township, within the city’s mile-and-a-half extraterritorial review authority, is not served by sewer.
“The city’s long-range 2020 plan designates the area as FUD, Future Urban Development,” a memorandum by Jessica Roberts, a city planner, indicated. “The FUD Development category is designated for areas that are unlikely to have access to sanitary sewer by 2020, but which will be suitable for urban development at some point in the future, designated as FUD areas. The intent is to not allow non-urban development, i.e., development on private wells and/or septic systems, to occur before sewers can be installed.”
City leaders agree such development in this area is premature, too, unless the developer agrees to pay to connect to the public infrastructure residents have invested in.
Because that is not likely, the question is, when will county board members begin enforcing the policies taxpayers paid handsomely to establish?
From the June 9-15, 2010 issue