Peoria Standard

City of Peoria Zoning Board of Appeals met July 13.

Here is the minutes provided by the Board:

A regularly scheduled Zoning Board of Appeals Meeting was held on Thursday, July 13, 2017 at 1:00p.m., City Hall, 419 Fulton Street, Room 400, with Chairperson Richard Russo presiding.

ROLL CALL The following Zoning Board of Appeals Commissioners were present: Laith Al-Khafaji, Dorian LaSaine, Lon Lyons, Jerry Jackson, Scott Kelsey, Richard Russo, and Nathan Wagner –7. Absent: None.

Staff Present: Kimberly Smith, Shannon Techie, Madeline Wolf

MINUTES Commissioner LaSaine moved to approve the minutes for the Zoning Board of Appeals meeting held on June 8, 2017; seconded, by Commissioner Jackson.

The motion was approved viva voce vote 7 to 0.

REGULAR BUSINESS CASE NO. ZBA 3033 Hold a Public Hearing on the request of Robert Hall of Miller, Hall & Triggs, LLC for Pamela Mabee, to obtain a variance from the City of Peoria Unified Development Code Section 4.2.4., Building Envelope Standards, to reduce the front yard setback, of a principal structure along Tanglewood Lane, below the required 25 feet (or average of the adjacent) in a Class R-4 (Single-Family Residential) District, for the property located at 4117 N Grand View Drive (Parcel Identification Nos. 14-26-129-006), Peoria, Illinois (Council District 3).

Chairperson Russo noted the petitioner withdrew the request based on the findings of ZBA Case No. 751 from 1958, in which a setback variance was approved.

CASE NO. ZBA 3034 Hold a Public Hearing on the request of Lea Anne Schmidgall, of Habitat for Humanity, to obtain a Variance from the City of Peoria Unified Development Code Section 4.2.4. Building Envelope Standards, to reduce the required front yard setback of a principal structure below the required 30 feet a Class R-6 (Multi-Family Residential) District, for the properties located at 1000 NE Monroe, 1002 NE Monroe, and 508 Evans (Parcel Identification Nos. 18-03-309-001, 18-03-309-002, and 18-03-309-017), Peoria, Illinois (Council District 1).

Senior Urban Planner, Kimberly Smith, Community Development Department, read Case No. ZBA 3034 into the record and presented the request. Ms. Smith provided the Property Characteristics, Requested Variance, and the Development Review Board Recommendation as outlined in the memo.

The Development Review Board recommended APPROVAL of the variance based on the following criteria:

1. Reasonable Return: The house is proposed to be constructed on three combined lots, and has been adapted to the confines of the combined lots as much as possible to meet building codes related to room size requirements, and enable reasonable future use by a family. If a variance cannot be justified in this case; then it may also be difficult for any other type of construction at this lot. 2. Unique Circumstances: In the center of the block, along the side street named Evans, two lots existing and are surrounded by two alleys. This is somewhat unusual, and significantly decreases the ability to construct homes consistent with the neighborhood character in terms of bulk, massing and street orientation. 3. Character: The granting of the proposed variance will allow a new single family home to be constructed in a manner consistent with the character of the surrounding neighborhood, particularly as related to setback.

LeaAnne Schmidgall, representing Habitat for Humanity, asked for approval for the requested variance as the organization was working to revitalize the area with new construction and home renovations that will match the character of the street. In response to Commissioner Kelsey’s inquiry, Ms. Schmidgall said construction will begin in 2018.

Gene Lear, representing the petitioner, thanked staff and respectfully requested the commission grant the variance. Mr. Lear referred to and presented a PowerPoint presentation to the commission. Mr. Lear said the hardship was the R-6 District zoning. Surrounding properties were single-family homes and better represent an R-4 District which required a font yard setback of 15 feet versus the front yard setback of 30 feet in an R-6 District. Mr. Lear clarified the alley access to the attached garage was a 14.4 feet front yard setback.

Chairperson Russo opened the Public Hearing at 1:21p.m.

Rodger Sparks, advocate for disabled rights, expressed concern for wheelchair accessibility into the residence.

Ms. Smith responded the property must adhere to building code requirements.

Chairperson Russo closed the Public Hearing at 1:22p.m.

Motion: Commissioner LaSaine made a motion to approve the request as presented; seconded, by Commissioner Jackson.

Chairperson Russo read the Findings of Fact for a Variance. It was determined by the commission all three criteria were found to be met.

The motion was APPROVED by roll call vote: Yeas: Al-Khafaji, Jackson, Kelsey, LaSaine, Lyons, Russo, and Wagner – 7. Nays: None.

CASE NO. ZBA 3031 Hold a Public Hearing on the request of petitioner Mathew Nelson of Benckendorf & Benckendorf, P.C. (for Floyd and Nellie March of 621 E Embert Place) who is appealing the Zoning Administrator’s decision regarding the status of a variance granted in 1986 through ZBA Case 2166 regarding a front yard fence, in a Class R-4 (Single-Family Residential) District for the property located at 3517 N Wisconsin Avenue (Parcel Identification No. 14-28-428-051), Peoria, Illinois (Council District 3).

Senior Urban Planner, Shannon Techie, Community Development Department, read Case No. ZBA 3031 into the record and presented the request. Ms. Techie provided the Property Characteristics, Summary of Appeal, and the Development Review Board Recommendation as outlined in the memo.

The Development Review Board recommended AFFIRMATION of the Zoning Administrator’s decision regarding the status of the variance granted through Case No. 2166.

In response to Chairperson Russo’s inquiry, Ms. Techie noted there have been complaints in regard to the fence which have all been closed due to the variance granted through Case No. 2166. Ms. Techie said March 27, 2017 was the first time the Zoning Administrator made an official determination on the granted variance and that determination was appealed through the current case (Case No. ZBA 3031).

Matthew Nelson, attorney representing the petitioners, requested the board declare the variance granted through Case No. 2166 be null and void. Mr. Nelson said the conditions indicate the variance does not run with the land. Mr. Nelson argued the conditions are independent. Mr. Nelson stated it was the subsequent owner’s responsibility to learn if the fence was in compliance and if a variance for the height and setback of the fence had been previously granted. Mr. Nelson noted the safety concerns of the current state of the fence as nearby traffic has increased and the current condition of the fence allowed zero visibility for vehicles and pedestrians at the corner of the property.

In response to Commissioner LaSaine’s inquiries, Mr. Nelson did not have statistics of the increased traffic or police reports of traffic accidents in the subject area.

Floyd March, petitioner, referred to the image of the current condition of the fence and provided the following examples of the increased traffic; Peoria Christian School enrollment has increased and Wisconsin Avenue was now a three lane road with the addition of a stop light at War Memorial Drive and Wisconsin Avenue. Mr. March’s primary concern was safety.

In response to Commissioner LaSaine’s inquiry, Mr. March said he did not have record as to the reason for the variance request for Case No. ZBA 2166.

Jessie Ann March, an interested citizen and relative to the petitioner, expressed safety concerns regarding the current condition of the fence as it reduced vehicle and pedestrian visibility.

Chairperson Russo opened the Public Hearing at 1:49p.m.

Roger Sparks, co-owner of 3517 N Wisconsin Avenue, said he thought the fence in the existing state was grandfathered in. Mr. Sparks said he had his property surveyed and the fence was not on the property line. Mr. Sparks distributed Exhibit A to the commission, which was included in the record.

Monica Jones, a concerned citizen, expressed safety concerns regarding the placement and openness of the fence. Ms. Jones noted the increase in vehicle traffic in the subject area.

Ms. Techie said staff does not feel as though the second condition was separate from the first condition. Ms. Techie said since the variance was not recorded with the subsequent deed, it would not have been known to subsequent property owners that it was their responsibility to remove the fence.

Commissioner Al-khafaji inquired if the granted variance was recorded with the original deed.

Ms. Techie said the property was transferred in 2005 and the variance was not recorded; therefore, the deeds that followed in 2010 and 2015 did not record the granted variance.

Chairperson Russo inquired about the authority of the Zoning Board of Appeals to impose conditions on the variance as a variance runs with the land.

Ms. Techie noted the legal department provided legal consultation and agreed with the Zoning Administrator’s decision when making the official determination that was outlined in the letter presented before the commission (Page #35 of the July 2017 ZBA Agenda Packet).

Commissioner Kelsey said he considered the variance to be null and void, as the variance was not recorded on the deed, which was a condition of the granting of the variance.

Senior Attorney, Chrissie Peterson, Legal Department, said the courts may interpret the fence as a legal non- conforming use, as the fence was installed prior to the requested variance.

Commissioner Lyons expressed concern of the current visibility of the fence compared to the openness at the time of the granted variance.

Ms. Techie referred to how the variance was worded in regards to openness; the primary front yard fence must be less than 70% open in design and to permit a secondary front yard fence greater than 4 feet in height and located on the property line. There was not an openness requirement noted as part of the variance granted for the secondary front yard fence.

In response to Commissioner Al-khafaji’s request for confirmation, Ms. Techie confirmed the commission was responsible for determining if the Zoning Administrator made an accurate determination regarding the status of the variance granted in 1986 regarding the front yard fence.

Commissioner Kelsey said the conditions were independent; if Condition No. 1 was not met, the variance would become null and void.

Chairperson Russo referred to the language of the condition in the minutes from the 10/23/1986 ZBA meeting that stated, “Condition: Variance to remain in effect only as long as present owner resides in this house and will be null and void if he moves. Also, this condition must be recorded and made a part of the deed.”

Ms. Techie referred to the resolution in the approval letter sent to petitioner (Page #29 of the July 2017 ZBA Agenda Packet).

Chairperson Russo inquired which document the commission was to interpret to govern the decision.

In response to Commissioner Kelsey’s inquiry regarding a timeline, Ms. Techie said a timeline was not mentioned in the record for the case, but Condition No. 2 would have had to occur at the time the property was transferred.

In response to Commissioner Wagner’s inquiry regarding the language on a deed, Ms. Techie said the deed should reflect the variance that was granted.

Chairperson Russo summarized staff’s stance which included the intent of the original variance would go along with particular owner and it was the owner’s obligation to tell the buyer that the variance would cease.

Ms. Techie agreed with Chairperson Russo’s comment and noted the owner did not tell the buyer the variance would cease.

Matthew Nelson, in summation, said it would be the buyer’s responsibility to determine if the fence was in violation of city code. Mr. Nelson said the conditions are independent and if one was not met, the variance should become null and void.

Chairperson Russo requested confirmation which document controlled the variance; the signed document to the petitioner dated October 28, 1986 or the letter from the Zoning Administrator dated March 27, 2017.

Ms. Peterson said the controlling document was the resolution that was adopted in the letter dated October 28, 1986, signed by Chairman Thomas Flanagan.

With no further interest from the public to provide public testimony, Chairperson Russo closed the Public Hearing at 2:15p.m.

Discussion: Commissioner Kelsey said he found Condition Nos. 1 and 2 to be separate.

Commissioner Al-khafaji said he found the variance was granted if both conditions were satisfied; the second condition was not satisfied, therefore, there was no variance.

Commissioner Lyons expressed concern regarding the safety of the fence with the lack of visibility for pedestrians and vehicles.

Chairperson Russo read the Findings of Fact for an Appeal, Appendix A, Section 2.7.5.

It was determined by a 2 to 5 vote that Finding A was FALSE. True: Lyons, Russo – 2. False: Al-khafaji, Kelsey, Jackson, LaSaine, Wagner – 5.

It was determined by a 7 to 0 vote that Finding B was TRUE. True: Al-khafaji, Jackson, Kelsey, LaSaine, Lyons, Russo, Wagner – 7. False: None. Motion: Commissioner Kelsey motion to reverse the zoning administrator’s decision regarding the 1986 variation; seconded by Commissioner Lyons.

The motion to reverse the Zoning Administrator’s decision was APPROVED by roll call vote. Yeas: Al-khafaji, Jackson, Kelsey, LaSaine, Lyons, Russo, Wagner – 7. Nays: None.

CITIZENS’ OPPORTUNITY TO ADDRESS THE COMMISSION There was no interest from the public to provide public testimony at 2:21p.m.

ADJOURNMENT Commissioner LaSaine moved to adjourn the Zoning Board of Appeals Meeting; seconded by Commissioner Al-khafaji.

The motion was approved unanimously viva voce vote 7 to 0.

The Zoning Board of Appeals meeting adjourned at approximately 2:21p.m.

http://www.peoriagov.org/content/uploads/2017/01/07-2017-Minutes-ZBA-Draft_1508162141_add.pdf