ZBA Minutes 1993 05-24-93 "
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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
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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
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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,
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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
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