McHenry County Zoning Board of Appeals met Nov. 4

By Angelica Saylo Pilo

Feb 1, 2022

McHenry County Zoning Board of Appeals met Nov. 4.

Here are the minutes provided by the board:

ZONING BOARD OF APPEALS REPORT TO THE MCHENRY COUNTY BOARD - #2021- 018TA

1. PETITIONER

McHenry County Planning, Environment, and Development Committee

2. REQUEST:

Amendment to the text of the McHenry County unified Development Ordinance for the purpose of modifying regulations pertaining to various provisions.

3. DATE AND TIME OF HEARING AND VOTING MEETING

May 27, 2021 @1:30PM, July 8, 2021 @ 1:30PM, August 5, 2021 @ 1:30PM, September 30, 2021 @ 1:30PM, and November 4, 2021 @ 1:30PM

4. LOCATION OF HEARING AND VOTING MEETING:

McHenry County Administration Building, 667 Ware Road, Woodstock, Illinois, 60098, County Board Conference Rooms

5. PRESENT AT HEARING

A. ZBA Members: David Stone, Linnea Kooistra, Kurt Schnable, Charles Eldredge, Vicki Gartner, Donald Smolinski, and Robert Kosin

B. Renee Hanlon and Wayne Duckmann, County Staff

C. Public: See Sign-in Sheet for each date of hearing

6. ITEMS OF EVIDENCE:

None

7. SUMMARY OF TESTIMONY AT HEARING - MAY 27, 2021

Chairman Stone called the meeting to order by stating that the applicant is requesting text amendments to the Unified Development Ordinance (UDO). He then asked staff to explain the requested text amendments.

Renee Hanlon provided a summary of each individual change proposed. The text amendment includes changes in eleven (11) separate sections of the ordinance.

The first is a change to the ancillary dwelling unit regulations. The UDO allows one (1) ancillary dwelling unit per lot; however, there is no provision to allow an ancillary dwelling unit to be located in an effective street yard. She explained that staff has two (2) pending permit applications in which the principal dwellings were setback hundreds of feet from the street lot line making it nearly impossible to locate an ancillary dwelling unit in the side or rear yard. She explained that detached ancillary dwelling units, although similar in appearance to detached accessory structures, are not allowed in the effective street yard while detached accessory structures are allowed with a minimum fifty (50) foot setback from the street lot line. This text amendment, recognizing that ancillary dwelling units are secondary principal structures, will allow detached ancillary dwelling units in the effective street yard with the same setback requirements as a principal building.

She explained that an applicant recently pointed out that a long held ordinance interpretation for establishing setbacks on through lots is not supported by the language of the UDO. In the past, staff has considered a through lot to include two (2) effective street yards and required a fifty (50) foot setback from each street lot line. The UDO is clear that there may not be two (2) effective street yards and in the case of a through lot, the secondary street lot line (i.e. the street lot line that is not traversed by the driveway) is the rear lot line. This strict reading of the ordinance would allow a rear yard setback as small as five (5) feet from the secondary street lot line. This text amendment establishes that the required setback from the secondary street is a minimum of thirty (30) feet; unless the secondary street is a limited access roadway, then the minimum setback may be reduced down to ten (10) feet from the secondary street lot line.

The next text amendment is a very technical amendment. When determining the maximum building coverage for a lot within mapped floodway, the UDO requires that the lot area mapped within the floodway be deducted from the total lot area prior to calculating the maximum percentage building coverage. Staff has found this to be a very imprecise requirement since the maps are not intended to be lot specific. She explained that there are other county ordinances that regulate building in the floodplain so this is a redundant regulation and should be removed.

Changes to the language regulating equestrian uses is proposed. The UDO speaks to establishing equestrian uses in at least three (3) different sections of the ordinance. This text amendment proposes to clearly establish that equestrian uses outside of the Agriculture and Estate districts may only be established on lots with a minimum lot area of five (5) acres. The text amendment also adds the horse stable use to all zoning districts in recognition of state agricultural exemption regulations that allow the keeping of horses in all zoning districts.

Staff has issued temporary use permits for rodeos in the past. A review of the UDO revealed that rodeo is not a use recognized and allowed under a temporary use permit. This text amendment adds rodeo as a permitted temporary use.

In 2018, the County Board approved approximately thirty (30) conditional use permits for community scale solar farms throughout the county. Since these projects require additional state approvals, the majority have not been built. According to the UDO, if a building permit is not issued for a conditional use permit within two (2) years of County Board approval, the conditional use permit expires. Recognizing that this section would expire the vast majority of those conditional use permits and require the owners to reapply for a conditional use permit, staff presented a moratorium on enforcement of this section on solar farm conditional use permits which was adopted by the County Board. This amendment makes that moratorium permanent and allows the extension of conditional use permits when a unit of government is holding up the permit process.

Earlier this year the County Board had many complaints from neighbors of a slaughterhouse under construction near Marengo. Understanding the history of the zoning approval of that slaughterhouse concluded with the opinion that a mistake had been made when the UDO was adopted and that mistake must be corrected. The solution to this mistake is to eliminate in its entirety the poultry and small animal processing plant use. An amendment to add this use was introduced on the floor of the County Board on the evening that the UDO was adopted. This language, as proposed and subsequently adopted, contains errors and created inconsistencies. By eliminating this use category and use standards, the error may be mitigated.

When the fence regulations were established, a diagram was added to the UDO to assist in explaining the regulations. That diagram illustrates an allowance for solid fences in the effective street yard as long as a fifty (50) foot setback is maintained. The text of the ordinance does not reflect this allowance. The text amendment brings consistency between the illustration and the text.

In administering the UDO, staff realized that the language of the UDO prohibits the expansion of any nonconforming structure. Staff has, in the past, allowed such expansion. The text amendment allows for the expansion of nonconforming structures bringing consistency between current enforcement policy and the language of the ordinance.

Earlier this year, the state opened the license application process for cannabis craft grow operations. In meeting with potential applicants, staff discovered a few items that need to be clarified in the UDO text. This text amendment provides that clarity. First, the state has raised the limitation on the size of craft grow operations beyond the initial five thousand (5,000) square feet. The UDO still limits craft grow operations to five thousand (5,000) square feet. The text amendment removes the maximum floor area all together and leaves it to the state licensing regulations to regulate square footage allowances. Second, staff met with many potential craft growers who had plans to transport their harvested plants and process/infuse their own plants. The UDO did not anticipate this type of accessory use with a craft grow operation. The amendment provides for this type of accessory use.

Lastly, she reminded the members of the zoning application filed for the abandoned mini golf course on IL Route 120 that was heard earlier in the year. The UDO prohibition of mini golf and other similar outdoor uses in the A-1 Agriculture district is limiting in allowing the redevelopment of that property. This text amendment provides that certain outdoor and community uses be allowed by conditional use permit in the A-1 zoning district.

Two members of the public, Sandra Theriault and Mary McCann, were present and expressed their concern of allowing the amphitheater use in any zoning district within the county. They provided examples of temporary amphitheater uses established in the past that disrupted existing neighborhoods. They requested that the amphitheater use be stricken entirely from the UDO and such use be prohibited throughout the county.

Ms. Hanlon explained that the amphitheater use is currently allowed by right in the B-3, I-1, and I-2 zoning districts. This was followed by a discussion among the board members as to the appropriateness of allowing this use by right anywhere in the county. Board members expressed their opinion that such a use has the potential of creating nuisances for neighboring properties. This discussion resulted in Member Gartner moving to amend the amendment to require a conditional use permit for amphitheaters and outdoor amusement facilities in the districts that they are currently allowed by right. The motion was seconded by Member Eldredge. The motion passed by unanimous voice vote.

Ms. McCann then stated her dissatisfaction with the public noticing process for conditional use permit public hearings. She contended that when a conditional use permit is considered, most area residents do not know about the hearing and, therefore, do not participate when they otherwise would object to the conditional use permit. Board members discussed this issue. This discussion resulted in Member Eldredge moving to require that direct mail public notice must be given to all property owners within a five hundred (500) foot buffer around the property in question. Member Schnable provided the second. Chairman Stone stated that it was his opinion that the ZBA could not add language to the text amendment that was not part of the original amendment. The ZBA must limit their discussion and motions to amend only items in the original text amendment. The ZBA directed staff to seek a State's Attorney's Opinion on the matter.

The motion was tabled and the hearing was continued.

8. SUMMARY OF TESTIMONY AT HEARING - JULY 8, 2021

Chairman Stone called the hearing to order. Chairman Stone reminded members that the last date of hearing ended with a tabled motion to amend the UDO to require mailed hearing notice to all property owners within five hundred (500) feet of a proposed conditional use and asked for a motion to remove the item from the table. Vice Chair Kooistra made a motion to remove the previous motion from the table, and Member Eldredge provided a second. The motion passed by unanimous voice vote.

Chairman Stone ruled that this motion was out of order due to the published proposed text amendment not including an amendment to the public hearing noticing requirements. He explained that the ZBA is bound by provisions of the Open Meetings Act to keep their discussion to items which were published with the public notice of hearing. The State's Attorney's Opinion on the matter was consistent with and supported Chairman Stone's ruling.

Member Eldredge made a motion to direct staff to bring the amendment to require noticing of all property owners within five hundred (500) feet of a proposed conditional use to the PED Committee for preparation and filing of the text amendment. The motion was seconded by Vice Chair Kooistra. Member Eldredge spoke for the motion, and Chairman Stone spoke against the motion. The motion passed by a 5-1 voice vote.

Vice Chair Kooistra moved to amend the text amendment to eliminate the amphitheater use as a conditional use in the A-1 zoning district. Member Gartner provided a second. Vice Chair Kooistra explained that it is her belief that the amount of traffic that is generated by such use is unsafe in rural areas, and amphitheater uses are more appropriate located closer to population centers. Member Eldredge stated his opposition to the motion due to his opinion that some rural areas are accessible by state highway which is able to handle traffic. He further stated that he believes conditional use is the exact tool to allow these uses where appropriate and prohibit them where they are not appropriate. Chairman Stone called for a vote. The motion failed on a 1-5 voice vote.

Several members of the public spoke in opposition to the proposed text amendment with respect to the slaughter of animals. The example used was the slaughterhouse currently under construction near the Marengo. The primary concern expressed, as it related to the text amendment, was the overwhelming need to notify neighbors of a slaughterhouse use being located near their property. They put forward and supported the idea that this use should only be allowed by conditional use so that neighbors are notified prior to the establishment of a slaughterhouse.

Member Gartner moved to amend the amendment to require a conditional use permit for food processing use in the I-1 and I-2 districts. Member Smolinski provided the second. Member Kosin stated his concern that this requirement would make many existing food processing uses around the county nonconforming. He asked if staff would be willing to analyze the impact of this amendment on existing food processing businesses. Planning Manager Hanlon stated that she would be able to provide that analysis at a subsequent date of hearing.

Member Eldredge moved to continue the hearing so that staff could research the amendment and provide information. Member Gartner provided the second. The motion passed by unanimous voice vote.

9. SUMMARY OF TESTIMONY AT HEARING - SEPTEMBER 30, 2021

Chairman Stone called the hearing to order.

Vice Chair Kooistra moved to approve all text amendment items presented with the exception of the slaughter of animals item. Member Eldredge provided the second. The motion passed by unanimous voice vote.

Member Eldredge moved to remove the previous motion made by Member Gartner to amend the text amendment to allow food processing only by conditional use from the table. Vice Chair Kooistra provided the second. The motion passed by unanimous voice vote.

Member Eldredge explained that after review of the staff memorandum explaining that this amendment would have a negative impact on businesses that are not involved in the slaughter of animals, he is not in favor of the amendment. He further stated that he would be in favor of an amendment to the text amendment providing a separate use category for slaughterhouses.

There was unanimous agreement to direct staff to draft an amendment to the amendment that will: define slaughterhouse, add slaughterhouse to the use chart, and provide use standards for slaughterhouses. This draft will be considered at a subsequent date of hearing.

10. SUMMARY OF TESTIMONY AT HEARING - AUGUST 5, 2021

Chairman Stone called the hearing to order. Due to a lack of quorum, Chairman Stone continued the public hearing.

11. SUMMARY OF VOTING MEETING OF NOVEMBER 4, 2021

Chairman Stone opened the voting meeting. Chairman Stone referenced the draft amendment to the text amendment regulating slaughterhouse use which staff had distributed prior to the voting meeting.

Vice Chair Kooistra moved to amend the text amendment by adding a use category of slaughterhouse as proposed by staff draft. Member Gartner provided the second. Members discussed the motion with all being in favor. The motion passed by a 6-0 voice vote.

Chairman Stone summarized the application by stating that the text amendment, as amended by the ZBA, goes to the County Board with a recommendation for approval.

12. FACTS THAT SUPPORT RECOMMENDING APPROVAL OF THE REQUEST

1) The Approval standards for text amendment (16.20.10.E.2) have been met.

2) The text amendment corrects errors and omissions and adds clarification to existing requirements.

13. FACTS THAT SUPPORT RECOMMENDING DENIAL OF THE REQUEST None

14. MOTION

Made by Vice Chair Kooistra, seconded by Member Eldrege, to recommend approval of the request for text amendment.

Made by Vice Chair Kooistra, seconded by Member Gartner, to recommend approval of the request for text amendment as amended by the ZBA.

15. VOTE

Vote on 1st motion:

7 Ayes and 0 Nays

Vicki Gartner - Aye

Robert Kosin- Aye