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ZBA Minutes 1993 05-24-93 " , �Wj " ZONING BOARD OF APPEALS MAY 249 1993 ZBA-93~3 Public Hearing-Ament/Van Parysv 904 S. State St. , Variance request from 80 feet to 66 feet lot width , Zoning Ordinance 6. 02-C-2. Chairman Martin Behrens called the meeting to order at 7: 12 PM. Roll was called and present were Martin Behrens, Curtis Medin and Mike Skinner" It was established that a quorum was not present. Attached to original of minutes is signup sheet of persons attending the hearing. Attorney Fred Dickson spoke for Bob Ament and stated that the variance request is to make a lawsuit go away" He passed out a plat of survey on the lots. Block 10 of Hopkins was platted originally, around 1870. In 1901 there were vacation of lots, and some conveyances have been done in years past. Recently some conveyances were done by metes and bounds description. The problem arises from the location of Dolph & State St. Originally Dolph was 60 ft" street , mistake by a prior surveyor , then a surveyor assummed that Dolph St" was 66 ft. wide" The survey you have now done by Ron Bauer , assumed that the original width of Dolph was 60 ft. , so there is a problem now where the lot line is for lots 1 & 2. All lots were laid out with the intention that they would be 66 ft. lots" The instruments that were used at that time were not always accurate so there is no credibility on the distances on these old plats. The issue is that 1-1 /2 years ago, Bob Ament prepared to sell lot 2. The neighbors had tried to purchase the property and no agreement could be made. The neighbors contended that the lot was nonconforming in size and width. All the property is zoned R-2 under the City Zoning Ordinance" Prior to April of 1974, this property would have been conforming. In 1974, the lot size was increased to 12,000 sq. ft. Every lot that is shown in block 10 is nonconforming today as they are less than 12,000 sq. ft. Bob Ament had petitioned for a variance to build on lot 2" This matter went before the Planning Commission and got approval , then went to the Council and the City Council did not really vote on the request for the variance" In January of 1993, the City Attorney and Administrator determined that the property was eligible for a building permit and a permit was issued" Building was started and Mr" Leedy filed suit to enjoin the program and declare the permit invalid. The defendants in that suit are the City of Yorkville and the Aments. A restraining order was denied and building has been progressing since then. There is no problem as to the location of the house on the lot" The lawsuit claims that this is a improper permit , should not have been issued and the house should not be built. He has asked the City Council to vote on the variance requested 1-1 /2 years ago" If the variance is granted , the question is moot. Every lot in block 10 is a similar size ° ^ , � and configuration and every lot in blocks north , south , east and west is also of similar size and configuration" An appraisal was done on this property when Mrs. Ament died and 4 vacant lots were found to be of similar size and configuration. He suggested that these lots be resubdivided and make it a conforming use. If the request is granted the lawsuit becomes moot. Curt Medin commented that the Zoning Board of Appeals ' duties are to provide variances on Ordinances and have nothing to do with lawsuits and incorrect informationv and also can only recommend a 25% variation. Fred Dickson said that he requested the City Council to rule on this and they referred the matter to the Zoning Board of Appeals. He stated that the City Council ruled on another matter but not on the variance. Dickson did not request a ruling until a few weeks ago. Mike Skinner asked why the permit was issued if City Council had not approved" Mr" Dickson stated that Attorney Kramer told Don Peck to issue the permit because it was consistent with other rulings. Mike also asked why a permit was issued with a 4. 78 ft" side yard. Fred Dickson stated that Leedy 's house was built before 1970 and at that time there was no BOCCA code in the City" Ken Leifheit asked why if Kramer handles these situations, how can land be taken from neighbors" Attorney Ron Lang became involved in this case when Judge Wilson denied emergency nature of this lawsuit. The land of an individual could be forfeited if this was to go to the full extent. His involvement was to find a way to compromise and to allow the building of a house by Mr" Ament that would be conforming to the Ordinances. The Leedys are his clients and they have contacted the Olsons who own lots 3 & 4, and lot 3 could have been sold to Mr" Ament and there could have been a Plat Act division that would have given property back to the Leedys and Olsons and there would have conformity to the Plat Act and the Yorkville Zoning Ordinance" Basically what was involved was $22,000, Mr. Olson would have sold a portion of his lot that Mr. Leedy would purchase, thereby moving Mr" Ament to the middle of those lots and would be in conformity with the Ordinance. Unlike what has been represented to the board , Attorney Lang has a document called Vacation of Subdivision , so all the references we have heard about the lots are inaccurate" Technically the law is very clear , in 1971 the Zoning Ordinance was adopted" In 1901 those lots were vacated and in the Zoning Ordinance there is a section 3" 06. Any single parcel of land held in one ownership which was of record at the time of adoption of this Ordinance that does not meet the requirements of minimum lot width and area ' , may be utilitzed for permitted use, provided the yard or useful open space are not less than 75% of the minimum required dimensions or areas except as provided is such section 11 " 07v so � that sets the timing of the ownership of the land. Section 3. 04 talks about the division of a zoning lot. The Ordinance makes it � very clear that it cannot be a self induced hardship. When a person has a zoning lot and divides it by a Plat Act division, it is in compliance with the State law but a violation of the Zoning Ordinance" No zoning lot can be divided into 2 or more zoning lots and no portion of any lot which is improved shall be sold , unless all zoning lots resulting from such division or sale shall not be less than all conforming regulations of the zoning district" Mr" Ament has been put on notice that this property is not conforming and there is a lawsuit pending. He made the decision to proceed. If the Zoning Board and the City of Yorkville allows the interpetation of Mr. Ament under the Plat Act division that a hardship was caused by the Ordinance, there will be a declaratory judgment by the Circuit Court to determine if Yorkville had faithfully abided by their own Ordinance. The law is very clear , to ask for a variance at this time is inappropriate and ultimately the house will have to come down" Fred Dickson responded that he had not heard before anything except that his client pay a substantial amount of money or lose money. There has been a consistent demand on the part of the neighbors that Mr" Ament sell all or part of that lot at a price they felt was within their means. That was the basic issue that formulated this dispute. He has records of 3 lots that have been sold of like size-66 ft. These lots are all over town and the City has consistently allowed construction on these vacant lots. This got to be a big issue because the neighbors wanted a larger yard. He has an abstract for this lot that has been owned and traded in the family for 80 years. Sometime it was sold separatelyv sometimes it was part of the Van Parys house but was always treated as a vacant lot and it is no different than many lots in the City today. Mike Skinner made a motion that since this is not a court of law and there is no quorum, he recommends that this matter be referred back to the City of Yorkville for a decision" Seconded by Curt Medin. Roll-Behrens, Aye, Medin-Ayev Skinner-Aye. Meeting was adjourned at 8: 00 PM. Respectfully submitted , P"%�Zaa- Judy Bell Zoning Board of Appeals Secretary After the meeting , Attorney Leonard Stoecker asked that a letter from Jeffrey & Sandra Spang of 907 Main St. be attached to the minutes, i I TO: City Zoning Board of Appeals United City of Yorkville RE: Ament and Van Parys Petition for Variance FROM: Jeffrey Spang and Sandra Spang 907 Main Street, Yorkville, IL 60560 FACTS The original Block 10 of W. H. Hopkins Addition to Yorkville was part of a very much larger subdivision which was platted in the 1870's. The original Block 10 consisted of eight lots all purporting to be 66 x 132 feet. Prior to 1905 all of W. H. Hopkins Addition was vacated except lots 3, 4, 5 and 6 of Block 10 being the South half of Block 10. The original lots 1, 2, 7 and 8 were erased. Mr. and Mrs. Spang reside on lots 5 and 6 of Block 10, W. H. Hopkins Addition. Subsequent to 1905 or thereabouts parcels were deeded out by metes and bounds descriptions. The conveyance of property in the old Block 10 by metes and bounds resulted in the creation of three lots. First, the Leedy property (66 x 132) and, second, the Hatton property (66 x 132) and third, the Ament property (66 x 264) . A copy of the title deed to Mr. and Mrs. Ament is attached hereto as Exhibit "A". You will see that the Anent's owned all of the property from Main Street through to State Street as a single lot. Mr. Anent would have this Board believe that his property was always two separate lots under common ownership. That is simply not the case. The property to which Aments took title was one lot as called out by the metes and bounds description. The North half of Block 10 of W. H. Hopkins Addition does not exist as a platted area. Mr. Ament in late 1991 sold the East half of the property described at Exhibit "A" to Mr. and Mrs. Van Parys. The legal description for that property is provided to you as Exhibit "B" in the Anent petition. The legal description at Exhibit "B" of the petition is the same legal as the Ament title deed with the exception of the addition of the words "excepting therefrom the Westerly 131.10 feet thereof. " The conveyance to Van Parys was not the conveyance of a separate lot but was in fact the conveyance of part of a single lot owned by Mr. and Mrs. Ament. In early 1993 Mr. and Mrs. Ament desired to build a house on the Westerly 131.10 feet of the parcel they acquired as described at Exhibit "A" hereof. Aments knew then that the lot was non- conforming as to the zoning ordinance and that a variance would be required. Aments cannot say they were not aware of this fact in light of their attempt to obtain a variance in January of 1992. Without a variance request approved by this Board and granted by the City Council a permit was issued by the building officer. Now, construction is nearing completion on a structure that should not be there. The building officer was without authority to issue the permit in light of the Zoning violation of the lot. ZONING ORDINANCE The Zoning Ordinance of the City of Yorkville at Section 3.04, subparagraph "B" reads as follows: "Division of Zoning Lots. No zoning lot improved with a building or buildings shall hereafter be divided into two or more zoning lots and no portion of any zoning lot which is improved with a building or buildings shall be sold, unless all zoning lots resulting from each division or sale and improved with a building or buildings shall not be less conforming to all bulk regulations of the zoning district in which the property is located. " The configuration of the Ament property as of the enactment of the City's Zoning Ordinances was that of a lot 66 x 264 improved with a house. The two lot configuration as stated by Mr. Ament did not come into being until 1991. Mr. Ament split the lot in contravention of the City's Zoning Ordinance. The intent of the ordinance seems to be to keep people from splitting conforming lots and creating non-conforming lots. The creation of a non-conforming lot is exactly what Mr. Ament did in knowing violation of the City's Zoning Ordinance. Therefore under the cited section of the Ordinance, Mr. Ament is barred from the transaction. He cannot split off the West half of the lot without at the minimum leaving the East half as a conforming lot with at least 12,000 square feet. The remainder of the lot would then be 5,424 square feet which is clearly not conforming to the Zoning Ordinance. Also, the Zoning Board is barred from granting or approving a variance. Further, the City's Zoning Ordinance prescribed certain findings which must exist in order for a variance to be approved by the Zoning Board. Those findings are listed at Section 12.05, Subparagraph C. Most notable is finding No. 3 which reads: "The alleged difficulty or hardship is caused by the Ordinance and has not been created by any person presently having an interest in the property". In the case before you the Petitioner created his own problem, which has been outlined herein. Again, your own ordinance bars the approval by the Zoning Board of the variance requested by the petitioner. BUILDING PERMIT The Petitioner believes that since the Building Permit was issued that such issuance makes everything right with the world and that the City is estopped from doing anything. This is not the case. First, the permit was issued for construction on an illegal lot. The Building Officer does not have authority to issue such an illegal permit whether the illegality is based upon plans that violate the building code or whether the lot is illegal. In both cases the result is the same, an illegally issued permit. Illegal issuance of a permit by a ministerial officer does not, as a general rule, estop municipality from relying on illegality notwithstanding fact that applicant may have expended money or incurred obligations in good faith and in substantial reliance upon permit. City of Rockford v. Sallep-, 262 N.E. 2D, 485. Even more importantly, the Aments knew that the resulting lots created by the sale to Van Pary's were non-conforming as to minimum lot size. They new a variance would be required. Regardless of that knowledge Ament's applied for a building permit prior to obtaining the variance. A lawsuit has been filed which could result in an adverse ruling to Mr. Ament. Regardless of that Mr. Ament continued with construction. Mr. Ament knew the rules and ignored them. Mr. Ament knew that he could receive an adverse ruling and assumed the risk. CONCLUSION The Petitioner is not entitled to the approval or granting of his petition for variance for several reasons. First, the City's Ordinance at Section 3.04, subparagraph B prohibits granting of a variance by virtue of the improper split of the lot owned by petitioner. Second, the City's Ordinance at Section 12.05, subparagraph "C" requires that before a variance can be granted the difficulty or hardship cannot have been created by the present owner. Here the present owner created the problem. Third, lawful non-conforming use cannot be predicated upon a act of ministerial offices in permitting construction in violation of zoning ordinance; rather, non-conforming use must be predicated upon continuation of lawful use existing at time of adoption of ordinance. City of Rockford v Sallee 262 N.E. 2d 485. Respectfully Su,bpitted Jeff y Spang andra Spang By: onard E. S ecker heir Attorney { WARRANTY DSXV K��IlE0M as Jew -V � .2:46 ` C20 MAY 2 01977 ti �txeo0l� N Xfo esra . TH6 ORANWR S. RUT �. KOVACWICH,ard AN KOW,CEVICH, hor husband, F�orde�csip � M iA as so a it of Erma M. . @ cif the City Ar!irlQton rev Foirfanc assts Virginia r tur sad in eom"orsti..i. of the was of We DNbrs and other vakobke eeasiCora"On is Mead POW Ceawy.... i r ead rrermat.... to .J..ROD BIT.AMENT..and..LOWS E.1.AMERY,.humixi ld.and.wife........ . of �.... . ...... ...... ..... .... . ..... 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