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11/09/2010DES PLAINES ZONING BOARD OF APPEALS NOVEMBER 9, 2010 MINUTES The Des Plaines Zoning Board of Appeals held its regularly scheduled meeting on Tuesday, November 9, 2010, at 7:30 P. M., in Room 102, City Council Chambers, of the Des Plaines Civic Center. ZONING BOARD OF APPEALS PRESENT: Catalano, Hofherr, Porada, Saletnik, Szabo, Seegers ABSENT: None Also present was Senior Planner Scott Mangum, Department of Community and Economic Development. Chairman Seegers called the meeting to order at 7:32 P. M. Case #10-050-V - 580 S. Wolf Road November 9, 2010 Page 2 Case #10-050-V — 580 S. Wolf Road Request: Variations to Section 8.5-2.A and 8.5-2.0 of the 1998 Des Plaines Zoning Ordinance, as amended, to authorize the construction of a Commercial Mobile Radio Service Facility with a front back setback of 10 -feet, instead of not less than 50 -feet; a side yard setback of approximately 5 -feet; instead of not less than 50 -feet; and in front of the structure housing the principal use, instead of behind the rear of the structure housing the primary principal use in the M-2 Zoning District. Mr. David Trost, 650 Devon Avenue, Itasca, Illinois, was sworn in to give testimony in this case. Mr. Trost stated, since the last meeting, he had researched the Consent Decree, which had also been researched by the City Attorney. Mr. Trost stated the Decree restricts the height [of the proposed tower] to 45 -feet. Mr. Trost stated he spoke to Meyer Material about an alternate location - one that would not require any setback Variances, but that none exist. Mr. Trost stated, as a result, he had no new evidence to present and asked the Board to vote on the matter as presented. Chairman Seegers called for the Staff Report to be read by Mr. Mangum. Staff Report: Issue: The petitioner is requesting variations to Sections 8.5-2.A and 8.5-2.0 of the 1998 City of Des Plaines Zoning Ordinance, as amended: to authorize the construction of a Commercial Mobile Radio Service Facility with a front setback of 10', instead of not less than 50', a side setback of approximately 5', instead of not less than 50', and in front of the structure housing the principal use, instead of behind the rear of the structure housing the primary principal use in the M-2 Zoning District. Analysis: Address: 580 S. Wolf Road Existing Zoning: M-2, General Manufacturing District Petitioner: David Trost, 650 Devon Avenue, Suite 157, Itasca, IL 60143 Owner(s): Meyer Material, 580 S. Wolf Road, Des Plaines, IL 60016 In reviewing this variation request, staff has considered the following information: This item was continued from the September 28, 2010 Zoning Board of Appeals meeting in order to allow the City Attorney to review information contained in a 1958 Consent Decree between the City of Des Plaines and Meyer Material. The City Attorney has opined that the consent decree is broad and would not allow the proposed structure because it is over 45 -feet in height. The principal use of the property at 580 S. Wolf Road is a ready -mix concrete plant, operated by Meyer Materials. As a freestanding, secondary principal use, the proposed Commercial Mobile Radio Service Facility is permitted by right in the M-2 Zoning District. However, the Zoning Ordinance requires that such facilities are located behind the rear of the structure housing the principal use, and also at least 50' from each property line. Variances are sought for both of these provisions. The proposed location is at least 100' from the nearest residential district. The applicant states that the location of the tower is proposed in the Southeast corner of the site to reduce conflicts with the existing vehicular traffic patterns on site. While such a location would be least disruptive to Meyer's operations, it also requires a variation from the setback requirements. In response to initial staff comments the proposed tower was redesigned from a typical pole to a lattice type structure intended to better blend with the existing Commonwealth Edison Utility Towers that run through the site. In addition, the 93' -high tower with 7' lightning rod would be considerably lower in height that the Case #10-050-V - 580 S. Wolf Road November 9, 2010 Page 3 existing electric lines and towers. The presence of the very large high voltage transmission towers bracketing the Meyer Material site also serves to mask the presence of a potential cell tower. This proposal was the topic of a 3rd Ward meeting on August 11, 2010 where the applicant and staff presented information about the proposal. There was not opposition to the proposal from the residents in attendance. Since the public noticing for the variation staff has received input from surrounding residents and property owners. On October 25, 2010 the City received a petition in opposition to variances requested for the proposed cellular tower signed by 28 residents. Recommendation: Staff recommends denial of the above -requested variations for location of a Commercial Mobile Radio Service Facility in front of the structure housing the principal use and within required setbacks based on review of the information presented by the applicant and the standards and conditions imposed by Section 3.6-8 (Findings of Fact for Variations) as outlined by the City of Des Plaines Zoning Ordinance. The legal opinion issued from the City Attorney regarding the 1958 Consent Decree on the property states that the language in the consent decree would not allow the structure proposed and recommends denial of the variation. Additionally, there may be other locations within the subject property that may accommodate cellular antennas that are not in conflict with the location requirements in the Zoning Ordinance. Zoning Board of Appeals Procedure Under Section 3.6-7 of the Zoning Ordinance (Major Variations) the Zoning Board of Appeals has the authority to recommend that the City Council approve, approve subject to conditions, or deny the above- mentioned variances for location of a Commercial Mobile Radio Service Facility in front of the structure housing the principal use and within required setbacks the M-2 zoning district. The City Council has the final authority on the project. Chairman Seegers called for questions by members of the Board. Mr. Porada inquired as to the petitioner's position on the matter. Mr. Trost reiterated he had no new evidence to present to reverse the Consent Decree. Mr. Trost acknowledged the only alternative that exists is to bring the matter to Chancery Court. Mr. Trost added, but for the setback, the use is permitted. Mr. Trost stated the Consent Decree did not show up on the Title report. Mr. Porada asked if Mr. Trost read the Decree. Mr. Trost stated he had. Mr. Porada noted the 1950 Decree was executed in February, 1958. Mr. Porada stated his concerns were that he was not aware of the relationship that exists between the companies - for example, whether or not Meyer Material was successor or successor in interest to Meyer Coal and Material. Mr. Porada stated that, in his opinion, the document was poorly drafted because it did not contain an address of the location or a legal description of the property. Noting the age of the document, Mr. Porada concluded the lawyer was likely deceased. Mr. Trost stated he felt the document was broadly written. Mr. Porada noted that because a Decree is an agreed order, a judge would sign without issue. Mr. Porada noted the height detailed in the Decree would preclude construction of a cell tower on the property. Mr. Porada added his only question was whether the Decree was specific to the location at issue. Mr. Porada noted the City Attorney's opinion is that it is. Chairman Seegers called for additional questions by members of the Board. None were raised. Chairman Seegers called for questions or comments by members of the audience, either in favor of or objection to the proposal. Eight persons in the audience raised their hand in objection. Mr. Bruce Ahlmann, 528 Crestwood Drive, Des Plaines, Illinois, was sworn in to give testimony in this case. Case #10-050-V - 580 S. Wolf Road November 9, 2010 Page 4 Mr. Ahlmann stated he provided the original petitions to Mr. Mangum and that he has since received more. Mr. Ahlmann provided copies of the petitions as well as additional information to members of the Board. These documents were entered into the record as Exhibits A and B, respectively. Mr. Ahlmann stated he received a letter from the City in 1986 to which a copy of the Consent Decree was attached and which was entered into the record as Exhibit C. Mr. Ahlmann stated he has been a resident of the neighborhood for 39 years. Mr. Ahlmann added Meyer Material used to be easier to deal with, but that has changed over the last several years. Mr. Ahlmann stated the dust and dirt has been discussed with Alderman Bogusz, as was the issue of notification. Mr. Ahlmann stated that he lives approximately one -foot out of the 300 -foot notification radius and was not notified. Mr. Ahlmann added that the 300 -foot notification radius primarily includes only Meyer property. Mr. Ahlmann stated the original packet contained approximately 44 signed petitions opposing all requests by Meyer Material and that petitions containing approximately 30 more signatures were provided by James Ulett this evening from residents on Rose Avenue. Mr. Ahlmann noted that Meyer Material chooses to inconvenience neighbors instead of inconveniencing its trucks. Mr. Ahlmann stated he provided a copy of the Consent Decree to the neighbors over the years and reiterated the City is aware of the document. Mr. Ahlmann stated discussions had taken place with the City that the neighbors be notified with regard to any issues relating to the Meyer Material property because of the disarray that exists in close proximity to residents of the area. Mr. Ahlmann expressed concern that the tower would be approximately 100 -feet tall when complete. Mr. James Ulett, 445 Rose Avenue, Des Plaines, Illinois, was sworn in to give testimony in this matter. Mr. Ulett stated Meyer Material has existed in the area for the entire 43 years he has lived in his home. Mr. Ulett read a statement on behalf of his neighbors, which was entered into the record as Exhibit D. Mr. Ulett stated that Meyer Material does not hesitate to enforce the Consent Decree when to its advantage -at times when neighbors attempt to enforce the 7:00 A. M. Noise Ordinance, which is superseded by the Consent Decree that permits Meyer Material the hours of operation to begin at 6:30 A. M. Ms. Colleen Lundgren, 512 Crestwood Drive, Des Plaines, Illinois, was sworn in to give testimony in this case. Ms. Lundgren inquired as to whether there were monetary or other benefits to the City that would result from the construction of the proposed tower on the Meyer property. Chairman Seegers stated, other than tax monies, he was not aware of any other benefits to the City. Ms. Lundgren stated she purchased her home with the knowledge that the proximity to Meyer Material would present certain inconveniences. Ms. Lundgren added she recognizes the importance of the business and residential properties co -existing, but stated her concern was the lack of consideration to the neighbors - including the notification radius issue. Ms. Lundgren expressed additional concerns over safety, health hazards, property damage and maintenance. Ms. Lundgren noted her garage would be located directly adjacent to the tower, if it were to be built. Mr. Paul Mallick, 548 Crestwood Drive, Des Plaines, Illinois, was sworn in to give testimony in this case. Case #10-050-V - 580 S. Wolf Road November 9, 2010 Page 5 Mr. Mallick stated the Meyer proposed tower would be an eyesore and inquired as to the tax breaks that would be provided area residents as a result of the devaluation of their properties. Mr. Mallick noted similar benefits that were provided by Sprint and Verizon in conjunction with the O'Hare Expansion deal. Citing that particular stretch of Wolf Road as having some of the worst statistics, Mr. Mallick inquired as to the National Traffic Safety Bureau's opinion. Mr. Mallick noted that the location is not safe and that contact by a semi -trailer could cause significant damage. Mr. Mallick requested new case surveys. Chairman Seegers noted such items are not required by Ordinance, but added that the same items would be required if deemed so by law. Chairman Seegers noted they would not, however, be presented the Zoning Board of Appeals. Chairman Seegers called for additional questions or comments by members of the Board. None were raised. A motion was made by Porada, seconded by Hofherr, to concur with the opinions of the Department of Community and Economic Development and the City Attorney and recommend DENIAL of the Variances requested to construct of the proposed Commercial Mobile Radio Service Facility. AYES: Porada, Hofherr, Saletnik, Szabo, Catalano, Seegers NAYES: None MOTION CARRIED Case #10-050-V - 580 S. Wolf Road November 9, 2010 Page 6 A motion was made by Catalano, seconded by Porada, to adjourn the meeting. The meeting was adjourned at 8:02 P. M. The next meeting of the Des Plaines Plan Commission is Tuesday, November 30, 2010. Sincerely, A. W. Seegers, Chairman Des Plaines Zoning Board of Appeals Cc: City Officials Aldermen Zoning Board of Appeals