Matthew, saw this last week and was disappointed you were not at the zoning meeting cause then I’m sure you’d share your thoughts on it.  This was strange and I didn’t want to comment until I’d watched the council session and looked at the documents myself. 

 

I understand this is a difficult one as getting good investors in our neighborhoods is important too.  It sounds like the investors had put much money into the property (which speaks well of them) and it appears both they and the realtor assumed since it has always been a duplex and never altered that there would be no question regarding the zoning. I’ve talked to a couple council folk who believe it was wrongly zoned R3 to begin with since it has always been a duplex.  And I understand like Councilman Laegeler said this is different than changing a zoning so that a building can be converted to multi-family... 

 

But as I watch the council video (Mar 23 2009)- I still have to say without driving over there and looking (I'm afraid to after hearing Councilman Foster’s experience which was too funny :-) I agree more with the city and the residents.  In 1929 many residents did not have cars and few had 2 or more per family so today congestion problems were not an issue.   So the previous  zoning of R3 - single family “low density” makes sense to me. 

 

I understand it's a tightrope we have to walk sometime - we don't want to discourage good investors but in listening to the council meeting it is the neighbor arguments that keep ringing true with me. While up roared neighbors may be a thorn in the side to some - to me it shows a deep concern for their neighborhood which is a very good thing for our community!!  

 

Once it is zoned R5 being this close to Millikin I can sure see the danger of this getting in to hands of some irresponsible landlord and that would really concern me as well.  And it sounds like there are already some VERY inconsiderate tenants in it.

  

A question I have that no one asked: - allowed currently is in R3 zoning is 8 unrelated residents how many are allowed in R5? 

 

This is just where I am at this point....   I do see the other side to this issue and it is not cut and dried.   A nice little duplex that allowed a couple professional people would be fine but how do you zone it R5 and restrict it to that use only?  And 45 neighbors versa 2 investors and a couple realtors?

 

One other guess on my part - I do not think you would have 45 neighbors showing up at that meeting if they had not already had some problems with the tenants in this building…. 

 

Just a guess - I know how mad people can be but it really takes a lot to get them to a council meeting!!

 

Sue

 

 Here is the staff recommendation:

https://www.decaturil.gov/council/3-16-2009packetinfo/Item%20III%205.pdf

 

 

 and here are the minutes of the planning commission that recommended not to change it:

 

http://www.ci.decatur.il.us/citygovernment/plancommpacket/Minutes.pdf

I'm not familiar with this case but can share some general thoughts on zoning matters. During my time on the County Board, these provided one of my greatest aggravations. When I became Chairman, one of my top priorities was to do something about it. These variances and special re-zonings are always a pain. There are, believe it or not, people who purposely sell folks property they know is not correctly zoned, gambling that someone will feel sorry for them and give them the change or variance. Let me emphasize that I'm not charging that in this case but am referring to a county board case. In that instance, our then-state's attorney sent a letter to all real estate agents in the county telling them the Board would no longer make the changes for this particular property. I could go on and on. The bottom line is the governing body--City Council or County Board--has to stick to its guns. If you don't pretty soon you might as well repeal the zoning ordinance and let people do whatever they damn well please, in the interest, of course, of personal property rights.
Bob Sampson

Bob, I don't agree with city staffs interpittation of the situation. The building was built as a duplex before the area was under any kind of zoning. The building has not undergone any kind of major modification since it was built. It was built as a duplex and has remained a duplex since 1929. The fact a owner did not rent out the second residence does not change the fact it is still a duplex. Using city staffs logic the loss of a tennant in any one of the 8 duplexes in the area would cause it to become a single family residence. Duplexes by nature would usually have at least one tennant, even if the owner lived in one unit. The fact the previous owner had gotten old and chose not to seek a tennant did not change the building or its use, one unit had been empty for years. The building had not been converted away from being a duplex, the full facilities of bathroom & kitchen had not been removed. Only the changing of duplex into a single residence should forfit the non-conforming use, not by just leaving one unit empty
I belive what the city council did is right, the neighbors should not be able to stop the use of the building as it was built. If I have a lot in an addition and do not build a house on it for some years, I do not forfit the right to build later, just because my neighbors are not happy to have a additionl house there instead of an expanded sideyard.
I do know the case you are talking about in Oakley township where the owner and their realitor marketed lots to individuals that the owner and realitor knew were not large enough to build on because of the existing zoning. I think this is different because the land in question had been zoned agricultural and was always agricultural before it was sold. This property was a duplex before the city decided that area should be R3 single family.
Steve Payton

Steve, I'm running short on time at lunch, but as I understand it, the trigger that causes a “non-conforming structure” (like a duplex in a single-family neighborhood) to be forced into conformance is the sale of the property. So, the original owner could have a duplex for as long as they owned the structure (and cycle tennants through) – but the property could only be sold as a single residence structure, and once transferred, it could only be used as the then-current zoning rules permit (it must “conform”)....

I'm with Shad on this one – the new owners should have known better, in my opinion, the neighbors (and city) are in the right, and the council made a bad call...In fact, after the vote, I was left wondering if a couple of the council members didn't think their vote had the opposite effect from what they intended....Of course by then it was too late...

Matt, I am basing my decision on several things that were in the meeting minutes, first the property was built before the city passed the zoning ordinance and there are three other duplexes within 8 houses of this location. This says to me the city did not pay too much attention to the existing neighborhood, the zoning instituted was non-conforming to the neighborhood it was applied to. The city said it was a single family area when it clearly was mixed single family homes and duplexes. Second, the plantives attorney stated the most recent owner had not had a tennant since 1978, however he had not, nor had anyone else changed the second unit into part of a single family residence. Just because he chose to not rent out the second unit did not change the fact that the unit was there, no structural changes were made to eliminate it. Ms Ashe stated it had been used as a single family residence for the last thirty years. This is not correct, the owner chose to occupy one unit and not rent the other. This is a major difference, if he had opened a stair between the units and/or deactivated the kitchen he would have made it a single family residence, he however did not live in the second unit, made no structural changes, the two units were still on separate meters, etc. My decision would have also been different if they had built a duplex in an area not zoned for it. However the unit predated the zoning. The reference to the "most recent owner" also implies there were more than one owner prior to the last sale. Ms Ashe also responded to one of the board members that "if the court ruled it to be a duplex then it is grandfathered in, however should theychange the structure, then it would have to come into conformance"  Nothing was brought out about the current sale invalidation the non-conforming cause, just that it had been used as a single family residence since 1978. If the current sale invalidated the grandfathering why wasn't that told to the board? That wouldmake it a differen't case. Nothing was placed in the hearing about the sale to the new owner invalidating the grandfathering. I don't know about residential zoning but if I have an office building, or even better an Adult Book Store in area and the city changes the zoning, my use of the building is grandfathered, and I can sell the existing building/business to a new owner for the same use. Thats why we have office buildings in residential neighborhoods and we used to have a vegitable stand on US 36 & 44th street next to the Church of the Nazarene.
Steve Payton 

Steve: As I noted in my first statement, I am not fully versed in the case before the City. I merely attempted to show that this is a deep problem and has been faced in other areas, particularly the County which, in my opinion, has been extremely lax ovedr the years. This is largely because the offended parties come before the Board with hard-luck stories, get people stirred up with talk about "property rights," and the Board caves. Don't be surprised if somewhere down the road, there is not a nice lawsuit over one of the messes made in the past that comes back and bites us. The Oakley situation was unbelievable and would have continued indefinitely because the Board always rolled on the individual cases. That changed when one of the victims, a deputy sheriff, had the guts to actually tell the Board and put in the record what was going on. And even then, I had to read the section of the Zoning Board of Appeals Minutes aloud to my colleagues before we could muster the courage to finally say "no." And then because the property owner was selling these lots to people without telling them they lacked zoning, we sent the letter to all county real estate agents. If you want to look for behind-the-scenes forces "bending the will of government to their selfish purposes" a good place to start would be the real estate-developer combine. And don't ask me to name names. You can ferret it out by talking to people and looking at various Minutes. Overall, my observation is that the City has done a better job of this than the County. Though even the best staff work can and has been rejected by govenmental bodies who prostrate themselves before the arguments mentioned above. During my eight years on the Board, we approved (without my vote most of the time, but with it to my regret in a couple of instances) some outrageous things--houses on property that can't support suitable septic systems, bumping up against conservation land, etc. Well, I'm retired and now you've got me on a roll and I probably should go lay down for awhile until I get over it. :-))
Bob Sampson
 

Bob

I was living a stones throw from the situation in Oakley.  The only thing I can say is its a shame everything was falling on deaf ears until the Deputy got involved.  I'm sure you know more about this than me but I think their was at least one other lady that was on the record telling like it was before the sheriff.  She spent a bunch of her own money to get things settled but never got much help from the County is what I remember her telling me.  Granted everything I know about it came from this lady and I may not have all the details but I know she bought land spent money on surveys and complained a long time before the Deputies windows fell out LOL. 

I bet retirement is relaxing and I think you did a great job with the county!