City of O'Fallon, IL - Zoning Hearing Officer Minutes 4/26/2011

Zoning Hearing Officer Minutes 4/26/2011

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O’FALLON ZONING HEARING OFFICER

MEETING MINUTES

April 26, 2011

Zoning Hearing Officer Douglas Gruenke called the meeting to order at 5:00 p.m. in the City Council Chambers.

Staff in attendance were Jeff Stehman, Building and Zoning Supervisor and Ted Shekell, Planning Director. Chester and Marilyn Nance of 405 Milburn School Road introduced themselves.

Gruenke gave a brief description of the procedures that would take place during the hearing.

Gruenke admitted for the record that notice was published in the O’Fallon Progress on April 7, 2011, and notices were sent to the 250 property owners pursuant to Illinois Statute.

PUBLIC HEARINGS:

ZHO2011-06 – Requests for Zoning Variance to allow the use of oil and chip instead of asphalt or concrete on 650 ft driveway to a residence to be constructed at 405 / 411 Milburn School Road. The petitioners are Chester E. and Marilyn A. Nance

Stehman restated the project factual background from the April 26, 2011, Staff Memorandum. The background of the recent rezoning from Agricultural to SR-1 Single Family and recently approved minor subdivision and the applicant’s request for variance for the 650 ft driveway for the proposed new residence for their daughter were explained.

Stehman gave a PowerPoint presentation showing the location of the parcel, an excerpt from the Zoning Map, an aerial of the property, and photos of the subject site with description of the location of the proposed driveway. Nance assisted in the description of the site photos taken by staff. Stehman asked if the trees would be removed and Nance stated the drive would be about 20 ft wide along the way of the trees.

Stehman summarized Sections 11.010.A, which requires paving of the residential drives; 11.080.C; and 11.080.E from the City Zoning Ordinance regarding Parking and Zoning Regulations all of which were also detailed in the Staff Memorandum.

It was noted by Stehman that the applicant was made aware when he proposed rezoning and subdividing the property in 2010 that asphalt or concrete surface would be required for the driveway. If he wanted relief from that requirement, Stehman testified Nance was advised he would need to seek that through the variance process.

Attached to the Staff Report were memos from staff to the Planning Commission and City Council during the zoning and subdivision process along with a copy of the approved ordinance. Applicable conditions were highlighted.

Stehman concluded the background summary stating the City had a similar variance request within the past twelve months, which actually proceeded to litigation, wherein the City prevailed and the applicant was required to pave their driveway accessing a new garage. Gruenke asked for the details of the previous variance and Stehman responded it was in a single-family residence area approximately 5-6 blocks from City Hall. It was an accessory structure three-car garage with drive access from the side street with an approximate 25’ driveway that the applicant wanted to have as rock. The variance was denied, stated Stehman, and the applicant asked for an administrative appeal with the St. Clair County Court which upheld the decision.

Gruenke asked Stehman if he was aware of any previous variances regarding types of driveways being granted and Stehman responded that he is not.

Chester Nance was sworn in and Gruenke explained to him that he is required to meet the requirements in the Zoning Code unless he can meet three conditions for variance. He explained the three conditions and asked for evidence of same.

Nance responded the property does not stand out from other surrounding properties and the driveway across the street is gravel, his own driveway is rock/oil and chip, the home to the west has oil and chip, the home further to the west has oil and chip, the new subdivision across the street is up to City Code, and all the homes west of his are oil and chip. He has a certain amount of money he can spend and would have a concrete driveway if he could afford it but would rather spend it on the house.

Nance testified the home is going to be about $250,000 not including the property.

Gruenke asked for price estimates comparing oil and chip compared to asphalt or concrete. Nance responded he did not have estimates but his own 75 ft established base oil and chip driveway was re-oiled and re-chipped approximately two years ago and it cost about $1,300. For the new driveway, he would like to bring in gravel for the sub-base and drive over it for a year or two before he would have to oil and chip. This would allow it to become compacted with freeze and thaw and prevent it from settling. Settling could cause holes and break-up of the oil and chip surface.

Gruenke explained to Nance that it is difficult without a cost estimate to determine that Nance cannot make a reasonable return on the property if the variance is not approved. Nance stated that with his experience hauling asphalt and with the current cost of oil, it would be a tremendous difference. Nance stated he read the City would approve an 8 ft wide instead of a 16 ft wide drive if he used 4” of under-asphalt then 2” of surface finish asphalt.

Gruenke stated the other surrounding properties Nance compared his property to were likely constructed before the Code went into effect and Nance agreed. Gruenke asked how his property was unique and deserved to have oil and chip instead of asphalt or concrete and Nance stated it is because his driveway will be 650 ft long and will require 4” of big rock, 1” or so of grade 8 rock for a base, then oil and chip.

Gruenke read from the ordinance rezoning the property and asked Nance how the condition stating the surface of the driveway must be asphalt or concrete, unless the City’s requirements change before the building permit is issued, was entertained by the City. Nance responded that in discussions with Shekell and Jennifer Howland (former Senior Planner) at the time of the rezoning, he told them that if he had to concrete or asphalt the driveway, the project was “dead in the water.” Shekell and Howland suggested he proceed with the rezoning and apply for a variance and maybe it would be allowed, Nance testified, and he remarked that this is why he hasn’t proceeded with a building permit yet. $60,000 or $80,000 for a driveway versus $20,000 would be too much for him and he re-emphasized to Shekell that he may remember the conversation when he told him the project “will be dead” and he will not and cannot do that (asphalt or concrete.)

Nance stated, “there are laws and rules, and certain circumstances that prevent some people doing something that other people haven’t been, but that is up to other people and I am talking about myself.” Nance continued that it would be a shame to not build this home on 1.75 acres because the taxes would be $6,000-$7,000 on this home and he will accept the verdict of the Hearing Officer.

While he regretted not collecting cost differences between oil and chip, and the rock and the BAM- Bituminous Asphalt Base Material – and the finished asphalt, and concrete - which would be much more expensive than asphalt, Nance had no other information to provide.

With no other public comments for or against the petition, the public comments were closed at 5:23.

D. Gruenke asked for Staff recommendations and requirements and determination of the three conditions for variance. Stehman presented the City’s position by stating there are three conditions the City looks at for variances of this nature:

The property in question cannot yield a reasonable return if permitted to be used under the conditions allowed by the applicable zoning regulations; and,

Staff response: The required paving of the driveways would have no affect on whether the property can yield a reasonable return,

2. The plight of the owner is due to unique circumstances; and,

Staff response: Staff believes that there are no unique circumstances facing the petitioner. The staff’s position has been that we have enforced this uniformly and effectively throughout the City with no previous problems with applicants in similar situations. There are a number of driveways in the City’s SR district that are very long, similar to the applicant’s, yet those properties were required to have asphalt or concrete driveways, per ordinance.

3. The variance, if granted, will not alter the essential character of the locality.

Staff response: The variance, if granted, will not alter the essential character of the locality. Many existing driveways in that section of the City have rock driveways, however, new homes are required to have asphalt or concrete surfaces. Therefore, permitting oil and chip for a new home in the SR district would create inconsistent enforcement with all other SR zoned areas of the City.

Stehman reviewed several photos taken of driveways to homes built within the last five years. Photos were taken on Mary Todd Lane, with approximately 500 ft length driveway; Cobblestone Ridge Subdivision; and St. Nicholas Drive where a shared driveway serving two homes is asphalted.

Stehman presented the City’s Recommendation:

Staff recommends that the variance to allow an oil and chip surface not be granted and therefore the petitioner should be required to pave the driveways consistent with the City’s requirements. Allowing them to not pave the driveway would be inconsistent with the city’s ordinances and uniform practices pertaining to new residential structures and accessory garages built in O’Fallon. We do not believe that the petitioners have demonstrated or documented any unique circumstances or hardship not of their own making that would warrant granting them relief from the ordinance requirements.
Applicant was made aware of the requirement during the recent zoning and subdivision process.
Staff would recommend permitting the applicant to construct the driveway at a minimum of 8’; driveways are typically a minimum of 16’ in width. Leading up to the property it would have to be wider near the house.
Staff would be flexible with a lenient timeframe to complete the driveway.

Gruenke asked what the City’s requirement would be according to current regulations if the current driveway was extended to the rear property. Stehman reported this was discussed as a temporary option which would negate the asphalting until the driveway entered the rear property and would then have to be concrete or asphalt. If the property sells outside the family, then easements would have to be granted.

Shekell testified this went through City Council to be subdivided and Code requires a 30 ft frontage on all public streets for new subdivision lots. While the City normally does not like to see flag lots, this one was appropriate. Shekell continued that City Council was given an option of a cross-access easement or a separate driveway to serve Lot 2, and they opted to require a separate driveway to serve Lot 2 and allowed an option for a variance to be granted.

Nance stated he had no response or addition to Staff Recommendation. He stated whatever the City comes up with is fine and he does not plan on litigation of any kind.

Gruenke explained that his decision would not be the final decision. City Council has a 21-day right of review and could reverse or uphold his decision. After receiving the transcribed minutes, his Decision and Findings of Facts would be prepared within 10 days. Further, there is a right of administrative review through the court system.

The hearing was closed, Gruenke stated for the record there are no petitions submitted for May 10th or May 24^th, so those meetings are cancelled, and the meeting was adjourned at 5:35 p.m.

Respectfully submitted by

Vicki Evans

Transcriptionist

M E M O R A N D U M

TO: Hearing Officer

FROM: Jeff Stehman, Building and Zoning Supervisor

THRU: Ted Shekell, Director of Planning and Zoning

DATE: April 26, 2011

SUBJECT: ZHO 2011-06: 405/411 Milburn School Road

Location: 405/411 Milburn School Road

Applicant: Chester E. and Marilyn A. Nance

Submitted: March 4, 2011 (requested hearing for April 26, 2011)

Background

The petitioners, Chester and Marilyn Nance, recently received rezoning and minor subdivision approval for property at 405/411 Milburn School Road. The property was annexed into the City in 2004 and was zoned A, Agricultural upon annexation of the property to the City. In the Fall of 2010, the Nances’ rezoned the property to SR-1, Single Family Residence Dwelling District from Agriculture and subdivided the property to allow the construction of a new residence for their daughter. The petitioner’s have applied for a zoning variance to use an oil and chip surface for the new driveway to the home instead of an asphalt or concrete surface as is required by the City’s Zoning Ordinance. The driveway length for the new residence is 650’ from Milburn School Road.

Variance Summary

The petitioner’s are requesting a variance to use an oil and chip driveway surface instead of asphalt or concrete surface which is required by the City’s Zoning Ordinance for a new 650’ driveway to serve a proposed new single family home they proposed to build for their daughter. They would like to have relief from the City’s codes due to the unusual length of the proposed driveway.

The City of O’Fallon codes require all new single family residences and any garage on a single family residential lot, whether attached to the principle structure or accessory to it, to be required to have the driveway paved with an asphalt or concrete surface.

The relevant sections of the City Zoning Ordinance, Article 11, Parking and Zoning Regulations, are shown in italics below:

Section 11.010 Vehicle parking; when required.

At the time of the establishment of any new use, changed use increasing parking requirements, erection of any building, site plan approval, or at the time any principal building is enlarged or increased in capacity by adding dwelling units, guest rooms, seats or floor area, there shall be provided permanent vehicle parking spaces improved with and asphalt or concrete surface in accordance with the requirements of this Article.

Section 11.080 Requirements for design of parking lots.

C. Access and circulation.

2. Ingress and egress to parking areas shall be by means of paved driveways from the adjoining street. The minimum width of driveways for ingress and egress shall be the same as those specified above for aisles. Driveway width, for the purpose of this section, shall include only the pavement and not the curbs or gutters.

E. Improvement of parking areas.

1. Surfacing and curbing.

a. All vehicle parking areas and all access drives shall be improved with a permanent dust-free surface consisting of a minimum of a 6” rolled stone base overlaid with a 2 or more inch asphalt surface, or a 4” asphalt base overlaid with a 2” asphalt surface. Concrete parking areas and driving aisles shall be a minimum of 6” thickness.

It should be noted that at the time the applicant proposed rezoning subdividing the property in 2010, staff made him aware that an asphalt or concrete surface would be required for the driveway, and if he wanted relief from the ordinance requirements he would need to seek that through the variance process.

Attached are memos from staff to the Planning Commission and City Council during the zoning and subdivision process, as well as the approved ordinance from the City Council. The applicable conditions are highlighted.

It should also be noted that the City had a similar variance request within the past 12 months, which actually proceeded to litigation, wherein the City prevailed and the applicant was required to pave their driveway accessing a new garage.

Hearing Officer Review of the Zoning Variances

Article XV “Variances and Appeals” of the Zoning Ordinance states that a request for a variance, other than a use variance, may be granted, upon a finding and determination on the record of the Hearing Officer that the requirements of this Section are met and that all three of the following conditions are satisfied or upon such conditions as may the Hearing Officer establishes as will meet such conditions:

The property in question cannot yield a reasonable return if permitted to be used under the conditions allowed by the applicable zoning regulations; and

Staff response: The required paving of the driveways would have no affect on whether the property can yield a reasonable return,

2. The plight of the owner is due to unique circumstances; and

Staff response: Staff believes that there are no unique circumstances facing the petitioner. The staff’s position has been that we have enforced this uniformly and effectively throughout the city with no previous problems with applicants in similar situations. There are a number of driveways in the City’s SR district that are very long, similar to the applicant’s, yet those properties were required to have asphalt or concrete driveways, per ordinance.

3. The variance, if granted, will not alter the essential character of the locality.

Staff response: The variance, if granted, will not alter the essential character of the locality. Many existing driveways in that section of the city have rock driveways, however, new homes are required to have asphalt or concrete surfaces. Therefore permitting oil and chip for a new home in the SR district would create inconsistent enforcement with all other SR zoned areas of the City.

Staff Recommendation

Staff recommends that the variance to allow an oil and chip surface not be granted and therefore the petitioner should be required to pave the driveways consistent with the City’s requirements. Allowing them to not pave the driveway would be inconsistent with the city’s ordinances and uniform practices pertaining to new residential structures and accessory garages built in O’Fallon. We do not believe that the petitioners have demonstrated or documented any unique circumstances or hardship not of their own making that would warrant granting them relief from the ordinance requirements.
Applicant was made aware of the requirement during the recent zoning and subdivision process.
Staff would recommend permitting the applicant to construct the driveway at a minimum of 8’; driveways are typically a minimum of 16’ in width.

Attachments

Variance Application
Site Plan
Planning Commission and Council reports and approvals

CITY OF O’FALLON ZONING HEARING OFFICER

IN RE THE MATTER OF: )

)

Request for Zoning Variance to allow the use of oil ) No. ZHO2011-06

and chip instead of asphalt or concrete on 650 ft. )

driveway to a residence to be constructed at 405/411 )

Milburn School Road. )

FINDING OF FACTS

In the matter of the City of O’Fallon Zoning Hearing, Cause No. ZHO2011-06, the Zoning Hearing Officer, Douglas C. Gruenke, makes the following findings of fact:

1) The Petitioners for the zoning variance are Chester E. Nance and Marilyn A. Nance. The Petitioners are the owners of the property located at 405/411 Milburn School Road, O’Fallon, Illinois (“Property”).

2) Notice of the hearing was given to all required parties and the City of O’Fallon published notice of the hearing in the O’Fallon Progress on April 7, 2011, pursuant to 65 ILCS 5/11-13-6 and 65 ILCS 5/11-13-7.

3) The hearing was held on April 26, 2011, and was called to order at 5:00 p.m. by Zoning Hearing Officer Gruenke.

4) The Owners of the Property intend to divide the Property into 2 separate lots, pursuant to a minor subdivision plat. Lot 1 of the minor subdivision would contain the Owners’ current residence and would maintain significant frontage on Milburn School Road. Lot 2 of the minor subdivision would be located directly behind Lot 1, but would contain an approximately 30 foot wide by 450 foot long tract of land connecting the Lot 2 to Milburn School Road. Lot 2 would only maintain approximately 30 feet of frontage on Milburn School Road.

5) The Owners intend to convey Lot 2 to their daughter and construct a new residence on Lot 2. The estimated cost of construction will be approximately $250,000.00.

6) On January 18, 2011, at the request of the Owners, the City of O’Fallon adopted Ordinance No. 3699 re-zoning the Property from Agricultural to SR-1 Single Family. As a condition of the re-zoning, the Owners were required to construct a separate driveway to serve Lot 2. Furthermore, pursuant to Ordinance No. 3699, the material used to construct the driveway must be asphalt or concrete, unless a variance is granted to the Owners.

7) Chester Nance was sworn in and testified that the Property is similar to neighboring properties. He also testified that the driveway across the street is gravel, his own driveway is rock/oil and chip, the home to the west has oil and chip, the new subdivision across the street is either asphalt or concrete, and all the homes west of his are oil and chip.

8) The construction of the driveway to service the intended residence would measure approximately 650 feet in length.

9) The City stated that Sections 11.010.A, 11.080.C and 11.080.E require the Owners to construct their driveway with asphalt or concrete. The ZHO finds that these sections are not applicable to the subject Property. The cited sections are applicable to parking areas and driveway access to such parking areas. However, Ordinance No. 3699 requires the Owners to construct the driveway with asphalt or concrete, and is controlling in this matter.

10) The Owners request that they be permitted to construct the driveway with oil and chip, rather than asphalt or concrete. Mr. Nance testified that the use of concrete or asphalt would be cost-prohibitive. However, the Owners did not present any evidence of the cost of construction of the driveway with oil and chip, as opposed to concrete or asphalt.

11) No residents attended to support or oppose the zoning variance for the Property.

12) Pursuant to the O’Fallon Zoning Code, a variance may not be granted unless the following conditions are met: 1) The property in question cannot yield a reasonable return if permitted to be used under the conditions allowed by the applicable zoning regulations; 2) The plight of the owner is due to unique circumstances; and 3) The variance, if granted, will not alter the essential character of the locality.

13) There is no evidence to support a finding that the Property cannot yield a reasonable return if permitted to be used under the conditions allowed by the applicable zoning regulations. There was no evidence submitted demonstrating that the cost of a concrete or asphalt driveway would be any more cost prohibitive than a similar driveway constructed of oil and chip. Without such evidence, it is impossible to determine whether the Owners are able to yield a reasonable return on the property if it is to be used for residential purposes. Therefore, it is found that the Property can yield a reasonable return.

14) The plight of the owner is due to unique circumstances. Although the City presented several examples of recently constructed homes that contain asphalt and concrete driveways in lengths exceeding the proposed length of the Owners’ driveway, the examples are not similar to the subject Property. The examples provided by the City are situated in “upscale” subdivisions, contain large lots, and contain large street frontage. The subject Property would contain a single-family residence situated directly behind another homeowner, in a rural (non-subdivision) setting, and would contain virtually no frontage. The unique design of Lot 2 would not be attractive to the same type of buyer or homeowner that owns any of the examples provided by the City.

15) The variance will not alter the essential character of the locality. The uncontroverted evidence suggests that many of the neighboring properties contain oil and chip driveways. Therefore, the construction of an oil and chip driveway on the subject Property would not alter the essential character of the locality.

16) The ZHO takes judicial notice of the City of O’Fallon Zoning Code and finds that it is presumptively valid under Illinois law.

17) The ZHO finds that the evidence submitted, and the testimony given, do not provide a factual basis for granting the variance. Therefore, the variance should be denied.

Dated: May 5, 2011 ___________________________________

Douglas C. Gruenke

O’Fallon Zoning Hearing Officer

Belsheim & Bruckert, L.L.C.

1002 E. Wesley Drive, Suite 100

O’Fallon, IL 62269

(618) 624-4221

(618) 624-1812