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Mayor Ronald S. Ghilardi
Trustee Luke J. Brandonisio
Trustee Joseph Broda
Trustee Nancy Earley
Trustee Michael Hackleman
Trustee Robert Pakenham
Trustee Judith Ann Yuill Re: 2665 Maple Avenue, Lisle, Du Page County,
Illinois
Meijer Request for Annexation
Dear Mayor Ghilardi and Trustees:
As you are aware, we represent a rather large collection of residents of the
area surrounding the above-mentioned location and land development proposal. Over the past
few weeks, we have poured over thousands of pages of documents pertaining to the Meijer,
Inc. proposal and acquainted ourselves with your respective positions on the project. In
behalf of the residents, we request the opportunity to meet with each of you privately to
address rather significant procedural and substantive deficiencies in the Meijer, Inc.
proposal. If none of you wish to meet privately, we request the opportunity to appear
before you to discuss the Meijer, Inc. project.
Though there are clearly a number of issues that will be raised in the April
1999 election, please understand it is not our intent to preach good politics or echo what
the masses have already laid out for you orally and in writing. Furthermore, you should
understand that it is not our intent to dive headlong into lengthy litigation against the
Village of Lisle even though the retention of legal counsel often raises the specter of a
court battle. The purpose of the meetings with each of you is simply to reinforce in
greater detail the material set forth in the following pages of this letter. After these
meetings, we truly hope you will not only start the application process over again in
early February, but that you will also adopt a better-informed position regarding the
substance of the project.
This letter first sets forth the path followed by Meijer, Inc. Second, it sets
forth the procedural requirements and deficiencies in the Meijer, Inc. presentations.
Third, the letter provides further insight into precisely why the Meijer, Inc. proposal
cannot survive scrutiny, even after reconsideration. Rathje, Woodward, Dyer & Burt has
gained the appreciation of many village boards throughout the metropolitan area for being
straightforward and credible. We have adopted this strategy in order to permit you to
review the objections in much the same manner as you may have reviewed the Meijer, Inc.
proposal before (or after) it became public.
Procedural History
As early as March 1998, representatives of Meijer, Inc. met with Mayor Ghilardi
and Village staff to discuss the proposed use of 60.6 acres of vacant land at the
intersection of Maple Avenue and Benedictine Drive. This and subsequent private meetings
ripened into an application by Meijer, Inc. for various development approvals upon
annexation to the Village. Meijer, Inc. file the following:
1. Petition for annexation signed by Meijer's attorney, Mary Riordan;
2. Application for a map amendment and planned unit development approval providing
for certain special uses and variations; and
3. Fee reimbursement agreement.
The Village held a joint public meeting of the Village Board, Zoning Board of
Appeals, and Plan Commission on July 9, 1998. At this meeting, Ms. Riordan presented an
application and presentation seeking relief along the following lines:
1. Approval of an annexation agreement for the subject property;
2. Annexation of the subject property;
3. Zoning of the subject property to the B-2 Community Business District
classification;
4. Approval of an eight-lot subdivision for the subject property;
5. Approval of a special use for planned unit development and a preliminary and
final planned unit development plat for the subject property;
6. Approval of variations from Section 4-4 of the Village Code (signage), Section
7-7-4 of the Village Code (lighting), Section 5-9-3(A)(1) of the Village Code (outdoor
sales), and Section 5-9-3(I) of the Village Code (side yard setback on Lot 6);
7. Approval of special use permits under Section 5-8-2(B)(1) and Section
5-9-2(B)(1) of the Village Code (two drive-in facilities), Section 5-9-2(B)(12) of the
Village Code (outdoor restaurant seating), and 5-9-2(B)(4)(b) of the Village Code
(gasoline service station); and
8. Such other approvals as deemed necessary.
Meijer, Inc. presented a proposal which called for zoning the entire 60.5 -acre
parcel under the B-2 classification and requested preliminary and final planned unit
development approval. Meijer, Inc. submitted substantial documentation which included
highly qualified work by Chris Burke related to wetlands and storm water and rather
troublesome traffic work in which at least two trustees raised significant question-even
as late as November 2nd, 1998. Notably, no owner or elector signed the petition for
annexation.
Only July 9, 1998, Mayor Ghilardi opened the public hearing by permitting
lengthy presentation of the proposal by Meijer, Inc. limiting adverse comments to a period
of two minutes, and prohibiting cross-examination of witnesses. The Meijer, Inc. proposal
created quite a controversy. In order to create the impression that Meijer, Inc.
"softened" its proposed development, the November 2, 1998 presentation was
substantially different from the application presented to the joint meeting on July 9,
1998, to the plan commission on October 8, 1998, and to the Zoning Board of Appeals on
October 21, 1998. The proposal for Lot 1 (the Meijer store) changed substantially as a
result of the withdrawal of a few requests by Meijer for special uses and variation. The
proposals for Lots 2-5 changed slightly, but the Lot 5 proposal for a gasoline service
station remained. The proposal for Lot 6 changed drastically from the applied-for business
zoning under a preliminary and final planned unit development to an undetermined
multifamily residential use under a conceptual plan approval.
The Meijer, Inc. Development Presentations and Votes Are
Procedurally Flawed
The Meijer, Inc. development proposal contains a number of procedural flaws.
These deficiencies have existed since the initial application where no owner or elector
authorized the process by executing the petition for annexation. Thereafter, Meijer, Inc.
has been ever so determined to push this matter through various levels of zoning review
notwithstanding clear legal problems which arose as a result of the midstream shift from
preliminary and final planned unit development approval to mixed final and conceptual
approval. As a result the Village has failed to comply with its own ordinances and the
entire proceeding through November 2, 1998 suffers from a lack of public comment and
notice. The following paragraphs address procedural flaws which render any approvals for
Meijer, Inc. void ab initio.
1.
There is No Jurisdiction to Proceed With the Petition for Annexation
To this date, we have been unable to locate any signed application
with the proper signatures of the owners and electors related to the 60.5 acre parcel. As
a matter of law, a majority of the owners of the subject property must sign the petition
for annexation. 65 ILCS 5/7-1-2(a); 65 ILCS 5/11-15.1-1. Furthermore, fifty-one percent of
the electors residing on the subject property should execute the petition for annexation.
65 ILCS 5/7-1-2(a). Without question, a petition executed by an individual who
serves as the attorney for someone who is merely a contract purchaser of the subject
property is invalid. Absent a properly executed petition for annexation, the Village
lacked jurisdiction to hold even one public hearing to grant Meijer, Inc. any zoning
approvals. e.g., In re Petition for Annexation of Certain Real Estate to the
City of Joliet, 144 Ill. 2d 284, 191-92 (1991)(disqualifying person who was not a
holder of legal title and reversing an annexation in reliance upon the petition);
In
re Petition to Annex Certain Property, 244 Ill. App.3d 820, 833 (2d Dist. 1993
(noting that the signature of the owner is jurisdictional). Thus, the Village must request
a properly executed petition for annexation in strict compliance with state law and
restart the entire public hearing process.
2.
The Public Hearing of July 9, 1998 Violated Due Process
The Village violated the public's due process rights by restricting
the time and nature of the public's participation in the July 9, 1998 public hearing.
Specifically, members of the public were limited to two minutes of comments, were barred
from presenting evidence, and were specifically barred from the right to cross-examine the
witnesses presented by Meijer, Inc. A "public hearing" as required by Section
11-13-14 of the Illinois Municipal Code has been defined as "the right to appear and
give evidence and also the right to hear and examine witnesses whose testimony is
presented by opposing parties." North State, Astor, Lake Shore Dr. Ass'n v. City
of Chicago, 131 Ill. App.2d 251, 256 (1st Dist. 1970). The right to cross-examine
witnesses was specifically identified by the Illinois Supreme Court as an essential part
of a public hearing. Farmer's Elevator Co. V. Railway Co., 266 Ill. 567, 572
(1915). Any ordinance passed without a proper public hearing is void. Id.
Due to the fact that persons objecting to the Meijer, Inc. proposal
were unable to present any evidence or cross-examination on July 9, 1998, there has been
no legally sufficient public hearing. Accordingly, the Village should restart the entire
public hearing process and allow proper and legal participation.
3.
Notice of Lot 6 is Legally Deficient
Section 11-13-1.1 of the Illinois Municipal Code, and Section
5-14-4 of the Lisle Code of Ordinances require notice and public hearing prior to the
approval of a planned unit development. 65 ILCS 5/11-13-1.1. In this case, the Village
published notice and conducted a public hearing on July 9, 1998. Meijer, Inc. applied for
a planned unit development rezoning the entire subject property to the B-2
Community Business District classification. Meijer, Inc.'s suggested no specific use for
Lot 6 in accordance with this B-2 classification. The initial traffic study by Meijer,
Inc. failed to consider the additional impact that ultimate development of Lot 6
would have. The public's comments on July 9, 1998 were limited the Meijer, Inc.
application for B-2 zoning classification with no proposed business use for Lot 6.
Subsequent to the July 9, 1998 public hearing, Meijer, Inc.
substantially changed its application by requesting R-4 zoning for Lot 6 and proposing the
development of multi-family residential townhouses with a density of 12 units per acre.
This substantial change regarding Lot 6 was never resubmitted to the public for a proper
hearing. At this point Meijer, Inc. should have withdrawn its application and filed a new
request.
Meijer, Inc. did not originally submit a request for conceptual
plan approval pursuant to Ordinance 5-14-4-2. There is no authority in the state statute,
65 ILCS 5/11-12-8 or in the Lisle Zoning Ordinance, 5-14-4-3, which allows submission of a
preliminary P.U.D. for only a portion of the subject property. Meijer, Inc. requested that
its proposed zoning and use for Lot 6 be considered a conceptual plan subject to a
subsequent public hearing. This procedure is not permitted by the Illinois Municipal Code
or the Lisle Zoning Ordinance. The shift from preliminary and final approval to
conceptual approval (in part) also had the effect of merging two planned unit development
proposals into one hearing. Accordingly, the Village should (1) require Meijer, Inc. to
resubmit its entire application as a conceptual plan and (2) conduct new public hearings
on these entire resubmitted plans which show the zoning and proposed use of Lot 6.
The Meijer Proposal Lacks Substantive Support in Local
and State Zoning Law
1.
The Village Violated Its Own Ordinances on November 2, 1998
(a)
Comprehensive Plan
A comprehensive plan provides the backbone of the Village's entire
collection of zoning regulations. Since 1969, the Lisle Comprehensive Plan has designated
the subject property as institutional/governmental. A Village which fails to stay within
the confines of its comprehensive plan places at risk its entire scheme of zoning as it
relates to comemercial uses. Within the immediate vicinity of the subject property, one
will find thousands of single family homes and multifamily units. The 55th Street/Maple
Avenue/Chicago Avenue corridor has always been uniquely reserved for residential use mixed
with institutional use and serves host to only that commercial and business use which is
necessary to serve the nearby residents. The only point in Lisle where one can find a
large-scaled development along Maple Avenue is at the intersection with Illinois Route
53-only a few blocks west I-355. The zoning history in Lisle, as predetermined by the
comprehensive plan called for small-scale "nodal" commercial development at
points along Maple avenue where necessary to serve the most proximate residents.
Meijer, Inc. acknowledged the nodal development in its
presentation. However, the applicant stretched the bounds of reason when it reported that
the development would continue the practice of nodal development along Maple Avenue.
Without question, the Meijer store is a regional store intended to serve a much larger
consumer base that only the combined residents of many municipalities such as Lisle,
Downers Grove, Woodridge, and Naperville can provide. This is not a continuation of the
local, small-scale nodal development.
(b) Zoning Ordinance
Chapter 14 of the Village's Zoning Ordinance, "Planned Unit
Developments," provides that a planned unit development may be authorized provided it
fulfills the following standards: (1) the plan should be consistent with the intent and
spirit of the goals and objectives of the Comprehensive Plan of the Village, (2) the uses
permitted in a planned unit development must be of a type and so located as to exercise no
undue detrimental influence upon surrounding properties, (3) the planned unit development
must be of a character and contain such uses that are clearly needed in the service area
of the proposed project, (4) adequate provision shall be made to provide ingress and
egress so designed as to minimize traffic congestion in the public streets, and (5)
a planned unit development may depart from strict conformance with the required density,
use, and other standards only if such departure accrues positive benefits to the residents
of the development as well as to the general community. See Section 5-14-3.
The Meijer, Inc. proposal satisfies none of the above-stated
standards. Not only does the proposal violate the Comprehensive Plan, but it decreases the
value of surrounding residential property by severely limiting the use and enjoyment of
such property. We have rather serious problems with the support of Mr. Pollack's appraisal
of the proposal and would prefer to reserve these issues for our meeting. There is no need
for a Meijer superstore which will serve three times the number of consumers as Lisle has
residents. The need for an additional gas stations is highly suspect at this location.
Traffic will increase greatly and substantially contribute to public hazards, particularly
in and around several nearby residential developments. The traffic service is rather
limited for such a large project which will impact at least six governmental entities and
thousands of residents in two communities.
2.
Approval of the Meijer, Inc. Application Would Constitute
"Spot Zoning"
Spot zoning is a change in zoning applied only to a small area,
which is out of harmony with comprehensive planning for the good of the community; zoning
that would violate a zoning pattern that is homogeneous, compact and uniform.
Bossman
v. Village of Riverton, 291 Ill.App.3d 769, 774 (4th Dist. 1997). Of paramount
importance is whether those uses are uniform and established. Id. at 775. In this
regard, the Village cannot zone or rezone to satisfy the individual desires of a few.
Id.
The following factors must be considered in determining the
validity of the Village's approval of the Meijer, Inc. proposal:
(1) the existing uses and zoning of nearby property;
(2) the extent to which property values are diminished by the particular zoning
restrictions;
(3) the extent to which the destruction of property values of plaintiff promotes
the health, safety, morals or general welfare of the public;
(4) the relative gain to the public as compared to the hardship imposed upon the
individual property owner;
(5) the suitability of the subject property for the zoned purposes; and
(6) the length of time the property has been vacant as zoned considered in the
context of land development in the area in the vicinity of the subject property.
LaSalle National Bank v. County of Cook,
12 Ill.2d 40 (1957).
The proposed Meijer, Inc. development with its rezoning to B-2 for lots 1
through 5 clearly constitutes spot zoning and violates that above-stated factors. As
outlined above, this project is completely out of harmony with the Village's own
Comprehensive Plan and the proposed uses do not conform with the surrounding existing
uses. This project's approval by the Village Board appears primarily motivated by the
attractive tax benefits which will be conferred upon the Village. However, Illinois courts
have rules that "such a justification is totally illusory and totally violative of
all the basic principles of zoning." Id. at 776 (citing Concerned Citizens
for McHenry, Inc. v. City of McHenry, 67 Ill.App.3d 798,806 (2d Dist. 1979)).
It is interesting to note that the same Village which rejected an application to
rezone property in Lisle for a gas station along Route 53 and battled to the Supreme Court
on the issue in Schultz v. Village of Lisle, 53 Ill.2d 39 (1972), now takes the
opposite approach and encourages such development in a residential area nonetheless. The
Village must now decide, tax benefits aside, whether a Meijer superstore and gas station
at this location confirm with the Village's Comprehensive Plan and surrounding uses to the
point of withstanding possible judicial scrutiny. We respectfully submit that the Board
should reject Meijer's conclusions in this regard.
The residents have retained highly qualified land planner and consultant Joseph
H. Abel. Mr. Abel is well-known throughout DuPage County for his expertise on zoning
issues, including large-scale developments. He has worked with hundreds of planners,
engineer and dozens of municipalities. Mr. Abel has thirty-nine years of experience,
including seventeen as the Director of the DuPage County Development Department. Mr. Abel
required only a brief review of the Meijer, Inc. proposal before concluding that such an
approval deviates from the Village Zoning Ordinances, violates the Illinois Municipal
Code, and constitutes spot zoning.
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Conclusion
We believe the procedural and substantive violations set forth in this letter
are substantial and warrant your serious consideration. We hope each of you are willing to
meet and discuss the status and future of the Meijer, Inc. proposal. We believe this
letter serves as only a brief overview of the deficiencies we would like to discuss. The
residents wish to avoid litigation, if possible, and they hope you do not view this letter
as a threat of court action. Instead, this letter and the proposed meetings should help
the Village gain a better-informed position and perspective on the Meijer, Inc. proposal.
Rather than allow Meijer, Inc. to lead the Village down a path of procedural and
substantive deficiencies, we hope to divert the Board's energy towards a continuation of
consistent development pursuant to lawful zoning procedures and objectives. We look
forward to contacting you to schedule a meeting if you believe a frank discussion prior to
public hearing would be appropriate and we thank you in advance for your consideration in
this regard.
Yours very truly,
Mark W. Daniel
John R. Zemenak |
