Village Hall |
255 East Wilson Ave. |
Lombard, IL 60148 |
villageoflombard.org |
John DeFalco, Chairperson |
Mary Newman, Eugene Polley, |
Greg Young, Val Corrado, Ed Bedard |
and Keith Tap |
Staff Liaison: Michael Toth |
Chairperson John DeFalco, Mary Newman, Greg Young, Ed Bedard and Keith |
Tap |
Also present: Michael Toth, Planner I; Christopher Stilling, Assistant Director of |
Community Development; and Stuart Moynihan, Associate Planner. |
ZBA 08-16: 350 N. Fairfield Avenue |
Requests a variation to Section 155.205(A)(1)(c)(2) of the Lombard Zoning Ordinance to |
increase the maximum allowable fence height in a corner side yard from four feet (4') to |
six feet (6') in the R2 Single-Family Residence District. (DISTRICT #4) |
Mark Edison, owner of the subject property, presented the petition. Mr. Edison stated |
that in August 2003 he purchased the home and had planned to remodel. In August |
2005, the Building Department informed him that new footings would be required as part |
of the proposed remodeling. Therefore, the garage and breezeway were demolished. |
In March 2006, his contractor left with his money and liens were placed on the home. |
Mr. Edison stated that after the liens expired he was able to get a second round of |
permits in June 2008. |
Mr. Edison referenced his plat of survey and concrete stairs thereupon. He stated that |
the stairs lead into a bunker on the property about six feet (6') in depth. He called the |
bunker an attractive nuisance, attractive to children. He stated that a six foot (6') fence |
existed previously on the property and that he could have replaced it panel by panel. He |
stated that Code Enforcement stopped his contractor from replacing this fence and told |
him that a permit was necessary. He stated that he was informed of the need for a |
variation when he came in for a permit. He also stated that he intended to put in a pool |
on the property. He stated that he sought to replace the fence the right way rather to |
replace it panel by panel which he would consider devious. He stated that the previous |
fence went all the way to the driveway and was six feet (6') in height. Therefore, the |
new fence would be more compliant as it will be outside of the clear line of sight. |
Mr. Edison stated that he has unsolicited letters of support from neighbors. He asked |
that the Board consider the bunker and the pool as the need for the fence. |
Chairperson DeFalco opened the meeting for public comment. There was no one to |
speak in favor or against the petition. |
Chairperson DeFalco then requested the staff report. |
Stuart Moynihan, Associate Planner, presented the staff report. The subject property is |
located at the northwest corner of View Street and Fairfield Avenue. The petitioner is |
requesting a variation to allow the installation of a solid wood fence six (6) feet in height |
along the corner side lot line. As the Zoning Ordinance permits fences within the corner |
side yard to be no greater than four (4) feet in height, a variation is required. |
The petitioner began construction of a six (6) foot fence within the corner side yard of |
the subject property without a permit being issued. Fence posts were placed along the |
corner side lot line and within the twenty (20) foot clear line of sight triangle at the |
driveway. |
The petitioner was issued a permit for a six (6) foot fence along the interior side and rear |
property lines. However, a six (6) foot fence was constructed within the first twenty (20) |
feet of the rear property line. As this portion of the fence is within the corner side yard, it |
may be no greater than foot (4) feet in height. The variation will address this existing |
fencing as well as the proposed fencing in the corner side yard. The petitioner has |
agreed to build the proposed fence outside of the twenty (20) foot clear line of sight |
triangle. |
The petitioner indicates that he is the owner of two dogs, one of which could scale a four |
(4) foot fence. He has also stated his intention to install an in-ground or above ground |
pool in the spring of 2009. The petitioner believes that with a four (4) foot fence, other |
animals could enter the subject property and harm or be harmed by his dogs. Further, |
he states that children could enter the property and be injured by the dogs or future pool. |
The Zoning Board of Appeals has heard a number of fence height variation cases in |
recent years in which the petitioner asserted the presence of safety and/or privacy |
concerns due to a pool. |
In all of these cases, with the exception of ZBA 04-08, the ZBA recommended approval. |
In each of the cases recommended for approval, the subject property had an existing |
pool. In ZBA 04-08, the petitioner had not yet constructed the pool but argued that there |
would be safety and privacy issues in the future. Staff and the ZBA both determined |
that future circumstances should not be sufficient grounds to recommend approval of a |
variation. It is staff's opinion that a similar determination should be made regarding the |
variation request at 350 N. Fairfield Avenue. |
Staff finds that there are no conditions related to the property that prevent compliance |
with the fence height regulations. The property does not have physical surroundings, |
shape, or topographical features that differ substantially from other corner lots in the |
neighborhood. |
Staff finds that the conditions are not unique to the subject property. Many other |
properties with a similar layout and design have been able meet the established |
regulations. |
Staff finds that the fence could be constructed per the ordinance requirements either by |
lowering the fence height to four (4) feet or changing the location so that the fence is |
outside the corner side yard. The hardship has been created by the petitioner as a |
result of the preference for the fence's height and location. |
Staff is recommending denial of the petition as the Standards for Variations have not |
been met. |
Mr. Young asked what the final outcome of ZBA 04-08 was. Mr. Moynihan stated that it |
was denied by the Village Board. |
Mr. Young asked if the bunker would be outside the fence if it were set in twenty feet. |
Mr. Edison stated that it would be. |
Mr. Young stated that he felt the bunker was a more compelling reason for approval |
than a pool would be. |
Mr. Edison indicated that his research showed that other nearby communities did not |
restrict the height of a fence to four feet (4'). |
Mr. Young stated that he had done some internet research and discovered that a |
Labrador could jump over a six foot (6') fence. |
Chairperson DeFalco stated that the fence permitting process was started in 2000 |
because so many fences were being built outside of the established regulations. He |
informed Mr. Edison that his assumption that the original fence could have been |
replaced panel by panel was incorrect. |
Michael Toth, Planner I, stated that a repair of up to twenty five percent (25%) of a fence |
could be repaired without a permit. However, this was the limit during a one year period. |
Chairperson DeFalco stated that a six foot (6') fence could be allowed in the corner side |
yard if it was seventy five (75%) open and ornamental in nature. He stated that the |
average lot in Lombard is sixty feet (60') in width and that the petitioner's lot is seventy |
five feet (75') wide. Therefore, fifty-five feet (55') of yard could be fenced in with a solid |
wood fence six feet (6') in height. |
Chairperson DeFalco asked how large the bunker is and if it could be covered with a |
steel plate. Mr. Edison stated that is ten feet (10') by twelve feet (12') but is two feet (2') |
above grade. He said that a steel plate would be too expensive. |
Chairperson DeFalco stated that covering the bunker with a steel plate would not be |
very expensive. |
Mr. Tap stated that he was troubled that the fence was constructed within the corner |
side yard after a permit was issued. Mr. Edison stated that no work was done on the |
fence in that area after the permit was issued. |
Mr. Tap asked if there is a public sidewalk along View Street. Mr. Edison stated that |
there is not but that children do still walk along there. |
Mr. Bedard stated that because the home to the west is located at the far west of the |
property there would be little impact on that home. |
Mrs. Newman stated that the house could be torn down and rebuilt closer to the fence in |
the future. She stated that they should protect the property rights of the adjacent |
neighbor and not set a precedent with this type of approval. |
Mr. Young stated that if the pool was already built these discussions would not be going |
on. |
Mr. Edison stated that the bunker would be outside of the fence if built twenty feet (20') |
into the property. He stated that the property is currently uninsurable and that he can't |
afford a $20,000 excavation. He stated that he would be financially ruined to try this. |
Mr. Edison stated that he has been informed by his insurance salesman that a fifty-four |
inch (54") fence is the minimum with an attractive nuisance on the property. He stated |
that an attractive nuisance is still an issue with a six foot (6') ornamental fence as it can |
be seen. Children would be safer if they could not see the bunker and desire to play in |
it. |
Chairperson DeFalco asked if the petitioner would be willing to continue the petition to |
next month so the Building Department could find a solution to capping the bunker. Mr. |
Edison stated that this would be undesirable though the bunker has been filled with |
wood chips. |
Mr. Young stated that based on an attractive nuisance, he would vote to approve this |
petition. |
Mrs. Newman asked why the bunker had not been mentioned before the public hearing. |
Mr. Moynihan stated that the petitioner had not informed him of the bunker's existence. |
He had not seen the bunker when visiting the property due to snow coverage. |
Mr. Edison said that he could not commit to the bunker's presence in writing due to the |
insurance implications. |
Chairperson DeFalco asked whether the petition should be continued or if they should |
vote on the variation. |
Mr. Young stated that he wanted to be clear that the Zoning Board of Appeals would not |
be granting a variation due to jumping animals or a future pool. |
Chairperson DeFalco agreed. He stated that an approval would include language |
similar to: based upon the testimony that there exists a concrete structure that is a |
hazardous nuisance on the property, the ZBA grants a variation for a six foot (6') fence |
in the corner side yard. |
Mr. Young stated that he felt this is a unique situation that involves public safety. |
Chairperson DeFalco asked the petitioner if a five foot (5') fence would be an acceptable |
compromise as the petitioner had testified that case law dictates a minimum of fifty-four |
inches (54"). Mr. Edison stated that the liability still exists with a five foot (5') fence and |
that a child could scale such a fence. He stated that this would be a compromise to the |
public safety and that he would like to mitigate the risk as much as possible. |
Mr. Tap stated that he was concerned about the fence being in the clear line of sight |
area. |
Chairperson DeFalco suggested that the ZBA add as a condition of approval that the |
fence not be located within the clear line of sight area and that the fence be built |
according to the plans submitted as part of the petition. |
It was moved by Young, seconded by Bedard, that this matter be recommended |
to the Corporate Authorities for approval. The motion failed by the following |
vote: |
It was moved by Newman, seconded by Chairperson DeFalco, that this matter be |
recommended to the Corporate Authorities for denial. The motion failed by the |
following vote: |
It was noted that as there were neither four votes to approve or deny the petition, it |
would be forwarded to the Board of Trustees without a recommendation. |
On a motion by Tap and seconded by Bedard the minutes from the November 19, 2008 |
meeting were unanimously approved by the members present. |
The meeting adjourned at 7:58 p.m. |
_________________________________ |
John DeFalco, Chairperson |
Zoning Board of Appeals |
_________________________________ |
Michael Toth, Planner I |
Zoning Board of Appeals |