November 18th, 2008
Member Boyer read the statement regarding the Open Meetings Act.
1. Member Boyer called the hearing to order at 5:30 p.m. Other members present were: Blatny,
Boerner, and Buehler. Members present from the Planning Commission were: Blatny, Kleine, Koerwitz, Mueller, Schlake, Ridder, Siefford, and Stepp
2. Next, was the approval of the minutes from the October 13, 2008 hearing.
Member Buehler made the motion to approve the minutes of the October 13, 2008 meeting and member Boerner seconded the motion. By roll call, the vote was: 4 - "yes"
(Blatny, Boerner, Buehler, Boyer) / 0 - "no". The motion passed.
3. Next, was the presentation by the City Attorney regarding zoning regulations.
Member Boerner made the motion to hear the City Attorney and member Buehler seconded the motion. By roll call, the vote was: 4 - "yes" (Blatny, Boerner, Buehler, Boyer) / 0 - "no". The motion passed.
David Bargen stated that he had been asked by Bedlan to speak at a joint meeting between the Board of Adjustments and the Planning Commission to address in general the statutory basis and authorities of the Board of Adjustments and the Planning Commission under state statute. He states that he would like to avoid speaking to any specific situations to avoid going into a closed session but if at any time he feels they need to he will suggest they close the session. Bargen notes that state statute allows for cities of 2nd class like Fairbury to provide for a Board of Adjustments and Planning Commission and that state statute also defines and governs their authorities. One of the questions that arises in many communities pertains to the Board of Adjustments and their authority to grant variances from city zoning regulations. Since the late 1960’s the state provided for and laid out how zoning regulations were to be done in a municipality. First there needs to be a Planning Commissions appointed by the community who recommends a comprehensive plan for the community. Then they are to recommend zoning regulations based on the comprehensive plan. This entire process requires public hearings at the Planning Commission and City Council level because the City Council is required to approve any recommendations made by the Planning Commission with the exception of one that he will talk about later. Essentially, these are quasi-independent advisory boards that both advise the council and have some authority to act. These bodies are also the primary places that administer the zoning regulations for the community. Chapter 19 of the statutes is what governs city planning and zoning and these are the statutes that provide the framework. Bargen notes that there may be some recommendations to change zoning in Fairbury and the question arises as to how zoning requirements are established. The statute provides that the planning commission set’s out zoning regulations and restrictions for all zoning. He reads the statute and notes that it is a broad definition with lots of leeway. He states that consultants often come in and assist cities in creating zoning code to fit the state statute, which he assumes Fairbury has done. Over time cities may need to change the zoning requirements at which point he suggest that they hire a consultant again to review the current zoning ordinances, look at the reoccurring issues, what the planning commission wants to do to make changes to the town and make suggestions based on industry standards. He notes that lot sizes and such are not dictated by state statute in most cases but rather industry standards based on engineering studies. These studies are what consultants use to make suggestions for particular zoning regimes. He notes that standards change overtime and gives examples of things like design standards used to dictate the looks of buildings and such in a city and maximum lot sizes creating a higher density area and thus a larger tax base for a city. The only requirement that state statute sets out for zoning code is the residence minimum requirement definition. He stated that anytime the zoning code is adopted or changed public hearings must take place at the Planning Commission and City Council level then gives the recent administrative subdivision change as an example. This is done because traditionally people do not like to be told what to do with their property and the state wants to make sure that before the ordinances are put into place the public has had every opportunity give their input. The Board of Adjustment is set up as a special appeals court that has limited powers over zoning. He reads the statute which lists the Board of Adjustments powers and notes that they are only allowed those powers listed. First, to hear and decide appeals when there is an alleged error made by an official. He notes this is a very limited power and that they cannot override the decisions of the officials based on the regulations but can only decide if there were errors made by officials and that the board is still bound by the zoning regulations that are in place. Next, is to hear and decide on interpretation of the zoning maps. And finally, to provide variances based on the exceptional shape of the property, exceptional topographic conditions or other exceptional or extraordinary conditions of the property when the strict application of the regulation would cause an undue hardship on the owners. He notes that this is a very narrow, very strict standard and that variances should very rarely be granted. In section 2 it states that no variance should be granted unless the board finds that there is undue hardship, other property owners in the same vicinity do not share the same hardship, the variance will not create a substantial detriment to adjacent property, the character of the district will not be changed by the granting of the variance, the granting is based on hardship and no variance shall be authorized if it is so general or reoccurring in nature that it would be more practical for the board to advise that the zoning regulations be amended. Often times there is a reoccurring problem with a particular zoning regulation and the board finds it easier to just grant a variance rather than recommend an amendment to the zoning regulations but according to state statute that is not the proper use of a variance. Bargen admits that these are tough decisions to make on your neighbors but that these regulations are set in place to be enacted equally and fairly across the board and deviation from these regulations should be a very rare circumstance for a very good reason. He notes that the one thing a Board of Adjustments should do is be very specific and make sure that when they hear a variance request they take evidence on all 4 of the elements. There are cases where a city took evidence on 3 of the 4 elements and their decisions were not upheld because they were missing the 4th. The one authority the Planning Commission has that does not go to the Board of Adjustments is special use permits and special exception permits only if the zoning ordnance originally allowed for it. Any appeals from the Planning Commissions decision on special use permits and special exception permits go directly to district court. Boerner questions if the zoning code is up-to-date. Bedlan responds that 2005 is the date on the current zoning book. Mueller notes that the comprehensive plan was adopted in 1997 and there has been some talk about bringing it up-to-date but the funds have not been allocated to do that. Boerner agrees that if the plan is 10 years old it should be updated. Bargen states that statute allows for portions of the book and maps to be updated without republishing everything and notes that it is not often that comprehensive plans are wholesale redone. He then states that if there are consistent request for variances it may indicate that those ordnances need to be reviewed. He also notes that it is a funding issue because it does take money to make those changes which creates problems where cities may not enforce there code because they don’t have the money to make the changes to code. He states that in a situation like the aforementioned the city is legally required to enforce code until it can be changed. Buehler notes that it does come down to a judgment call on many of these variances and questions if we have a copy of the statute and what most of our variances have been for. Bedlan states that after review of the last years variances most deal with the maximum square foot requirement for accessory buildings she notes that there were a few that dealt with encroaching on the minimum side and back lot setback but most were accessory building variances. Bedlan also questions the 1997 date for zoning updates and asks if the zoning was up-dated in 2005 separate from the entire comprehensive plan. Kleine states that the subdivision and zoning regulations have been reviewed and updated since 1997 and at the time they found that zoning regulations were inconsistent and they questioned JEO’s work. Bargen and members of the council noted that there are others who the city can consult with to create or update our plan. Bargen also mentioned that the league of municipalities might have a publication with the statutory guidelines that can be presented to members when they get appointed to the board or that he could quickly put one together for the board members. It is noted by Bedlan that the request for variance form steps through the statute requirements. Again, Bargen states that this all comes down to a decision by the Board of Adjustments and if they can backup their decision to grant a variance then they are ok but if they are consistently granting variances it is a sign that something should be changed in the zoning ordinances. Blatny states that there is a problem with individuals and builders starting construction prior to obtaining a permit and questions how we are to police that. To which Voss notes that as building inspector he needs to “get more teeth”. Bargen states that if the requirement is in place we need to give the officials the authority to enforce it and notes that this situation (building without a permit) occurs a lot but is not a reason to grant a variance. Problems caused by building prior to obtaining a permit are not hardships that the builder could not have foreseen prior to building. Boerner and Blatny note that even seasoned contractors are building prior to obtaining permits and Buehler questions what we can do to enforce the regulations. Bargen states that the City Council sets out how the code is to be enforced and questions Voss if they have done this. Voss responds that they were starting to set some specific fines in place but it was not completed. Bargen again notes that it is the City Council’s responsibility to set penalties and that a fine would be a reasonable option but a variance is not to be used for this purpose. Boerner asks if the Board of Adjustments has the final word in a variance decision and Bargen responds that the Board of Adjustments decision can be appealed in district court but it does not need to go before the City Council. He notes that the records that they make in regards to the 4 statute requirements will be looked at in court if appealed. Buehler questions what will happen if appealed and Bargen states that the worst that could happen is that the boards’ decision could be reversed. Mueller asks if the Board of Adjustments gets pressured into a decision that the Council and Planning commission disagree with are the Council and Planning commission powerless? Bargen states that they are not completely powerless because they can replace board members. Boerner suggests that the City become more proactive in informing builders and citizens that they need building permits prior to building. He suggest a notice in the paper several times a year and/or putting notices in the light and water bill. Voss suggests a “builders lunch” where we notify all the local builders of the new requirements. Buehler likes the recommendation for putting a notice in the paper and/or electric bill and it is suggested that we put it on the agenda for the next Council meeting.
6. With no other business on the agenda, Member Boyer made the motion to adjourn. Member Boerner seconded the motion. By roll call,
the vote was: 4 - "yes" (Blatny, Boerner, Boyer, Buehler) / 0 - "no"
The motion passed. Member Boyer declared the hearing adjourned.
7. With no other business on the agenda, Member Mueller made the motion to adjourn. Member Schlake seconded the motion. By roll call, the vote was: 8 - "yes" (Blatny, Kleine, Koerwitz, Mueller, Schlake, Ridder, Siefford, Stepp) / 0 - "no". The motion passed. Member Mueller declared the hearing adjourned.
Laura K. Bedlan
Board of Adjustment Secretary