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96-200 Resolution No . 96-200 RESOLUTION ESTABLISHING AN UNLAWFUL NONCONFORMING RESIDENTIAL USES TASK FORCE WHEREAS, it is necessary and desirable to create an Unlawful Nonconforming Residential Uses Task Force to study and review unlawful nonconforming residential uses and to make recommendations concerning the regulation of such uses to the City Council . NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that there is hereby established an Unlawful Nonconforming Residential Uses Task Force which shall be comprised of twelve members , two councilmembers and two staff members shall be appointed by the Mayor with the advice and consent of the City Council . Two realtors , two property owners/landlords and two representatives from Neighborhood Housing Services shall be appointed by said groups and two representatives from neighborhood groups as recommended by Neighborhood Housing Services shall be appointed. BE IT FURTHER RESOLVED that the Unlawful Nonconforming Residential Uses Task Force shall conduct such public hearings as it may determine are necessary and shall otherwise meet and confer. BE IT FURTHER RESOLVED that the Unlawful Nonconforming Residential Uses Task Force shall consider the number, kind, date and circumstances of establishment, effects on surrounding neighborhoods , and of unlawful nonconforming uses in the City of Elgin and shall make its recommendations for necessary and desirable ordinances and programs to the Mayor and City Council . BE IT FURTHER RESOLVED that the following persons are hereby appointed as members on behalf of City of Elgin of the Unlawful Nonconforming Residential Uses Task Force: Robert Gilliam Erwin W. Jentsch Marie Yearman Clay Pearson BE IT FURTHER RESOLVED that the Unlawful Nonconforming Residential Uses Task Force shall conduct its meetings in accordance with the Illinois Open Meetings Act. s/ Kevin Kelly Kevin Kelly, Mayor Presented: June 26 , 1996 Adopted: June 26 , 1996 Omnibus Vote: Yeas 6 Nays 0 Attest: s/ Dolonna Mecum Dolonna Mecum, City Clerk 610. TO . 1°.'1-41 -411••• a- - C-v d d42 \/A June 5, 1996 MEMORANDUM -yam ---: o.� TR Fe-•+sL TO: Richard B. Helwig, City Manager FROM: Erwin W. Jentsch, Corporation Counsel Clay J. Pearson, Director of Code Administration SUBJECT: Unlawful Nonconforming Residential Uses PURPOSE The purpose of this memorandum is to review the subject of unlawful nonconforming residential uses and options which may be considered to provide relief in certain instances . BACKGROUND Zoning Law Regarding Nonconforming Uses Zoning ordinances typically divide cities into geographic areas called zoning districts, with the zoning districts listing the permitted uses of both buildings and land located within those districts. When zoning ordinances are amended to create new zoning districts, or change the permitted or conditional uses in existing districts, the new or redefined zoning districts often encompass areas where the uses of buildings and land have been previously established. A use of, a building or land that does not comply with present zon- ing provisions, but which was lawfully established prior to the enactment of the new zoning provision is referred to as a preexisting or lawful nonconforming use (commonly re- ferred to as being "grandfathered" ) . Lawful nonconforming uses are allowed to continue so long as the use is not expand- ed, destroyed or abandoned. By contrast, an unlawful nonconforming use is a use that was not lawfully established at the time the zoning ordinance making it nonconforming took effect, or a use that was estab- lished under a zoning ordinance that did not permit the use within the district the property is located. A city can initiate legal action to compel the owner of an unlawful nonconforming use to bring the property into lawfully conform- ing status no matter how long ago the unlawful use was estab- lished; failing to prosecute the property owner for the viola- tion--even if the unlawful nonconforming use existed for dec- ades--is not a valid defense. The property owner has the bur- den of proving the use was lawfully established in any such proceeding. June 5, 1996 Page 2 City's Application of the Law. Property owners have been receiving "Land Use Status Determi- nations" in conjunction with the licensing process estab- lished under the City' s residential rental licensing ordi- nance. The land use determinations include the property' s current zoning__ classification and state whether the proper- ty's current use either ( 1) conforms with the zoning ordi- nance, (2) lawfully nonconforms with the zoning ordinance, or (3) unlawfully nonconforms with the zoning ordinance. The determination of whether a property constitutes a conform- ing use, lawful nonconforming use, or an unlawful nonconform- ing use is based upon a review of the zoning ordinance in effect at the time of the building's construction or conver- sion. If the zoning ordinance did not permit the contested use at the time the use was allegedly created, the property owner, alone, has the burden of showing that the use was lawfully created. DCA assists property owners in compiling information to meet its burden, even in the absence of any legal obligation to do so. Supporting information is com- piled from sources such as building permits, Polk Directory listings, assessor's records, code compliance letters and other material found in the property file. More than 3,000 land use determinations generated during the past two years have identified 190 unlawful nonconforming residential dwelling uses containing 219 unlawful dwelling units . The Department of Code Administration and Neighbor- hood Affairs (DCA) estimates that 90 of the 190 properties added unlawful dwelling units longer than twenty years ago. 157 of the 190 properties were originally constructed as single or two-family dwellings. And within those 190 proper- ties, 164 have added one unlawful dwelling unit, 23 have added two unlawful dwelling units, and 3 have added 3 unlaw- ful dwelling units . The additional dwelling units were added to these residences over the years without the benefit of a building permit and in violation of the zoning ordinances in effect when the conversions took place. (The attached "Code Administration Update" provides additional information on t these properties and DCA's future plans for enforcement. ) Enforcement Practices to Date DCA has been issuing citations to the owners of the unlawful nonconforming uses identified through the land use determina- tions. The unlawful nonconforming uses are typically identi- fied when the property is being transferred or registered in conjunction with the rental licensing program. DCA seeks to enforce compliance with the zoning ordinance at the time of transfer to protect the new owners from mistakenly purchasing what they believe to be conforming or lawful nonconforming uses. Unlawful nonconforming uses identified through the rental licensing program must revert to a lawful status be- June 5, 1996 Page 3 fore a license is issued. Owners failing to deconvert their properties are referred to the corporation counsel for prose- cution in housing court or the filing of an injunctive law- suit. A number of affected property owners are asserting that the City is unfairly enforcing the zoning ordinance against them in some cases because the enforcement is taking place, in a few instances, decades after the violations came into existence. Some owners of unlawful nonconforming residential uses have made "backdoor" attempts to have their unlawful uses brought into conformity with the zoning ordinance. The affected own- ers submit applications to have their properties classified as Planned Developments (346 Wilcox Avenue is a case in point) . By definition, a Planned Development consists of a land area, generally the size of a subdivision plat, that is developed by a single entity for a number of dwelling units and any commercial and industrial uses. The plan for the Planned Development does not correspond to the regulations established for the zoning district in which the Planned Development is located, including lot size, type of dwelling or commercial or industrial use, density, lot coverage, or open space. Consequently, if a property owner' s unlawful nonconforming four-family dwelling is designated as a Planned Development, that multiple-family dwelling is permitted to lawfully exist in an area zoned for single-family residential use. This defeats the intent of the zoning ordinance and of course is a misapplication of the Planned Development zoning technique. Options for Relief Should the City Council deem it necessary or desirable to provide some type of legal relief to owners of unlawful non- conforming uses, there are two methods that can be employed to provide that relief while maintaining the integrity of the zoning ordinance. Under the first method, a text amendment to the zoning ordinance would authorize the Zoning and Subdi- vision Hearing Board (ZSHB) to hear appeals from persons seeking time extensions for correcting or discontinuing 711 an existing zoning violation; in other words, prosecution forbearance. The second method would also involve a text amendment providing the ZSHB with the authority to confer lawful nonconforming status to unlawful nonconforming uses established before 1950. Prosecution Forbearance The sole purpose of the prosecution forbearance hearing would be to determine whether there are factual circumstances sur- rounding the property's unlawful nonconforming status to justify the City' s temporary forbearance in prosecuting the property owner for the violation. This hearing would not address the zoning officer' s determination that an unlawful June 5, 1996 Page 4 nonconforming use is existing on the property; appeal proce- dures already exist for property owner's challenging that determination. Rather, the principal purpose of the prosecu- tion forbearance hearing would be to determine the extent of the property owner' s hardship and the unlawful nonconforming use's impact on the surrounding neighborhood. Based upon the testimony elicited at the hearing, the ZSHB would then decide whether prosecution forbearance is justified. The City Council can choose to vest the authority for grant- ing these time extensions for eliminating unlawful nonconform- ing uses exclusively with the ZSHB or require that any time extension be approved by the City Council after a hearing before the ZSHB. If the Council must decide to vest the sole authority for granting time extensions with the ZSHB, the Council could choose to hear appeals on such matters from the ZSHB, or make the decision of the ZSHB final and nonappealable. The ZSHB would be able to recommend or grant the time exten- sion provided the owner demonstrates the necessity for a time extension is based upon the existence of extraordinary or exceptional conditions, difficulties or hardships . The ex- traordinary conditions should distinguish the property from other properties remaining subject to zoning ordinance. Under this standard, the hardship imposed upon an innocent purchaser of an unlawful nonconforming residential use would be distinguished from that of a property owner who knowingly • added an unlawful dwelling unit, or any other similarly self- imposed hardship. The property owner would also be required to establish the time extension would not be detrimental to the public welfare, be injurious or depreciate neighboring property, and that the time extension is not based upon a desire to to render a greater economic return from the proper- ty. The time extension would be limited to a certain length of time. The maximum time period for discontinuing the unlawful nonconforming use could be defined as the duration of the present ownership of the property, or perhaps a time period as short as two or three years . Any time extension would be required to be recorded as a covenant with the land. Under this method, the property would eventually revert to its unlawful, conforming use because the unlawful dwelling units would eventually be eliminated. Conferring Lawful Nonconforming Status on Certain Pre-1950 Conversions The Council may also provide the ZSHB with the authority to determine certain unlawful nonconforming uses should be af- forded lawful nonconforming status . The text amendment would list the specific criteria required to be established before such a determination is made, and would likely include June 5, 1996 Page 5 provisions requiring the property owner to show the use was established during a national housing shortage, that the creation of the use was tacitly approved by the City, and that the use is not adversely affecting the neighborhood. (Based upon the 3000 land use determinations performed by 3 DCA, at least 35 properties would be eligible for this re- lief. Objectors ' Perspective Objectors to the proposed text amendment may assert the ap- proach represents a return to weak zoning ordinance enforce- ment. It also may be asserted that forbearance in prosecution only serves to delay the City's stated goal of reducing resi- dential density. However, if the ZSHB only grants exten- sions in those instances of extreme hardship, the time exten- sion provision will provide the City with a means of granting limited legal relief to property owners without violating the spirit of the zoning ordinance. Recording the limitation on the nonconforming uses duration will also protect future purchasers and transferees . ALTERNATIVES A text amendment authorizing use variances is an alternative method of providing relief to affected property owners . The criteria required to be established before obtaining a use variance would not differ from that needed to obtain a time extension. But unlike the time extension, once a use vari- ance is granted, the property becomes a lawful nonconform- ing use, permitting the additional dwelling units to remain so long as they are not abandoned or destroyed. Affected property owners will favor the adoption of a use variance provision because it is the sole method available for legalizing their unlawful nonconforming uses . But such a method poses a risk of seriously undermining the zoning ordi- nance. The purpose of any zoning ordinance is to provide for the eventual elimination of lawful nonconforming uses and the immediate elimination of unlawful nonconforming uses. A text amendment authorizing use variances will seriously detract from that goal. COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED Text amendments to the zoning ordinance require a public hearing. FINANCIAL IMPACT A filing fee for submitting an application for a time exten- sion for eliminating an unlawful nonconforming residential use would be imposed. The fee would reflect the administra- June 5, 1996 . Page 6 tive costs of processing the application and conducting the hearing. LEGAL IMPACT None. RECOMMENDATION - Should the City Council decide to provide some type of legal relief to owners of unlawful nonconforming uses, a text amend- ment to the zoning ordinance authorizing the Zoning and Subdi- vision Hearing Board to hear appeals from persons seeking time extensions for correcting or discontinuing an existing zoning use violation and conferring lawful nonconforming status on certain long-standing convey 'on ecommended. Ewa'n W. Je tsch ay .I,'- Cearson EWJ:RGK/nr • May 20, 1996 Code Administration Update t Elgin is clearly a community moving forward. We believe the community's continued success is linked to the vitality of our neighborhoods. One key aspect of neighborhood vitality is encouraging rehabilitation and improvement to the housing stock. This report provides an update on four issues associated_with our neighborhood improvement efforts. COMMUNITY PARTNERS • For the last year it has been my pleasure to work with many individual citizens along with groups such as the Elgin Area Association of Realtors, Neighborhood Housing Services of Elgin, the Property Owners Association, the Chamber of Commerce, service clubs, and neighborhood associations. Our staff is dedicated to long-term relationships with these groups. This year Elgin became the first city in the country to have all of its property maintenance inspectors receive national certification from the building officials' association. BEYOND CASA LINDA• The acquisition and demolition last year of the long-standing nuisance property known as Casa Linda shows the commitment to making Elgin a city of the future. Moving beyond that community accomplishment, we are also proud of many other achievements in the last year. For example, Neighborhood Housing Services is making great strides as they expand to a city-wide organization buying, rehabilitating, and reselling distressed properties. The City's residential rehabilitation rebate program continues to enjoy success and popularity (contact Bobby Richardson for more information, 931-5917). For the last year, our Department of Code Administration and Neighborhood Affairs has focused on the worst properties. We have focused on nuisance properties at the center of violence, dangerous code violations, and the properties falling into disrepair. The commitment is evidenced in the most recent (April 25, 1996) Problem Property Status Report attached for your reference. As another problem property abatement measure, we are beginning to issue repair or demolish orders for properties vacant or abandoned. Working with Assistant Corporation Counsel Rick Kozal, hired by the City last year to focus specifically on housing issues, the court allowed demolition of a long-vacant property after the owner failed to repair the building. LAND USE REVIEWS • One of the priorities the community has undertaken is a systematic licensing program for investment rental properties. In conjunction with the Rental Licensing program, we have undertaken an exhaustive process of reviewing land uses. There was a need to establish the legal use of properties in relation to the Zoning Ordinance. • How are land use determinations made? A process uniformly guides land use determinations. Land use reviews compare the current use of the property with the use allowed by the Zoning Ordinance. Relying upon City records, utility information, tax assessor records, and personal statements, a history of the land use can generally be reconstructed. The determination has one of three possible results. The property can be found to contain a lawful use, a lawful nonconforming use, or an illegal use. Definitions used in land use determinations may be helpful at this point. • A lawful use is one currently allowed by the current zoning classification. • The Zoning Ordinance has been modified several times as the city has grown and progressed. For instance, there are areas where it was once legal to convert a single-family residence into a multi-family property. Later zoning ordinances prohibited CODE ADMINISTRATION AND NEIGHBORHOOD AFFAIRS UPDATE Page 2 • City of Elgin, Illinois such conversion, but those multi-family dwellings already established are called lawful nonconforming uses. Effectively, they are 'grandfathered.' Lawful nonconforming multi-family uses are allowed to continue so long as the use is not expanded, destroyed, or abandoned. The City has a conversion program with financial incentives (currently up to S12,000/unit) if property owners of these properties voluntarily want to bring their house back to single-family use. • • By contrast, an illegal use was not lawfully established. A city can initiate legal action to compel obeying the-Zoning ordinance, no matter how long ago the unlawful use was established. We have worked with property owners over the last year to successfully resolve most of the discrepancies in land uses. We work with property owners on an individual basis to attempt to accurately build a record of land use in everybody's interest. ENFORCEMENT OF ILLEGAL RESIDENTIAL PROPERTIES • Of more than 3,000 land use reviews conducted since 1994, there is currently a list of only 190 properties (7% of the total land use reviews) with either illegal or unsubstantiated units. Other facts about the properties with illegal units follow: • Only 35 of the 190 properties were presumably converted before 1950. Housing shortages after World War II and Depression-era economics likely influenced some of these conversions. We are looking at alternatives in the interest of the property owner to allow these long-standing conversions to remain with the current property owner and/or to become eligible for financial incentives with the multi-family conversion program. • 157 of the 190 properties were originally constructed as single-family dwellings. • There are 29 properties identified which have added two or more illegal or unsubstantiated dwelling units. Our thoughts on how to proceed follow the same philosophy we have been applying for the last year. We want to apply our resources strategically to make the most improvement possible for our neighborhoods. Our first priority is illegal units that do not meet code requirements for habitability and basic safety. If there are basement units not meeting exiting requirements, ceiling heights, etc., we will pursue removal of those units. Second, we will review the illegal and unsubstantiated units for their neighborhood impact. Are there numerous code violations or police calls to the property? If so, we will initiate action to have the units removed. Third, units illegally added within the last 20 years should be reviewed. Many of these properties which we will deal with initially have absentee property owners. On the other hand, experience has been that owner-occupied rental properties exist with a minimum of negative neighborhood impact. So long as the property owner lives at the property and cares for the property,the community is best served with our attention to other priorities. We want to continue working with all segments of the community in strengthening neighborhood vitality. Please call me at 931-5593 or write to discuss any of the above issues. We your ideas on how we can work together to build a better Elgin. Clay P son, Director Department of Code Administration and Neighborhood Affairs . ELGIN AREA ASSOCIATION OF REAL TORS° 1735 Grandstand Place Elgin, Illinois 60123 Telephone: 847/695-7607 REALTOR ® FAX: 847/742-3222 June 7, 1996 Richard Helwig City Manager City of Elgin 150 Dexter Court Elgin, IL 60120-5555 Dear Mr. Helwig: On behalf of the Governmental Affairs Task Force of the Elgin Area Association of REALTORS®, I would like to take this opportunity to thank you and the other representatives of the City Council who were present at the impromptu meeting held at our office on May 23, 1996. In an effort to "get up to speed" on the de-conversion issue, some background information is F- needed. The task force has asked me to request a copy of the current, specific criteria used to determine the land use status report. They are also requesting a list of the properties that have been found not to be "in compliance" with current land status use, plus a list of which of these properties were de-converted and when those de-conversions were complete. As expressed in our first letter concerning de-conversion, we are hopeful that the results of the June 12 City Council meeting will allow us the time to study the issue. Sincerely, Ann M. Hammerstad Executive Officer c: Clay Pearson, Director, Department of Code Administration & Neighborhood Affairs David C. Jones, GRI, President Board of Directors REALTOR' is a registered mark which identifies a professional in real estate who subscribes to a strict Code of Ethics as a member of the NATIONAL ASSOCIATION OF REALTORS' ' UNLAWFUL NONCONFORMING RESIDENTIAL USES TASK FORCE City Representatives Robert Gilliam Marie Yearman Clay Pearson Erwin Jentsch Board of Realtors Charlene Goldman Bonnie Hill Landlords Edna Krueger Dick Swanson Neighborhood Housing Services Stuart Wasilowski Betty Skyles Neighborhood Groups Jennifer VanDuyn Miriam Scott Committee of the Whole Meeting June 12 , 1996 Page 2 Performance by Jack Jones at Hemmens A resolution will be presented at tonight ' s Council meeting for adoption by the City Council . Performance of BeauSoleil Avec Michael Doucet at Hemmens A resolution will be presented at tonight' s Council meeting for adoption by the City Council . License Agreement with Prairie Rock Brewing Company for Fence and Cafe Area on Public Sidewalk A resolution will be presented at tonight' s Council meeting for adoption by the City Council . Engineering Services Agreement for Wing Park Phase I A resolution will be presented at tonight ' s Council meeting for adoption by the City Council . Authorization for 1996 Stop Sign Program An ordinance will be presented at tonight ' s Council meeting for passage by the City Council . Phases I and II Environmental Assessment for 56 Water Street A resolution will be presented at tonight' s Council meeting for adoption by the City Council . Provision of Additional Parking in State Street Business Area Councilman Gavin made a motion, seconded by Councilwoman Yearman, to approve the recommendation of the State Street Task Force to eliminate existing "loading zone" and "no parking" designations on east side of South State Street, south of Chicago Street. Yeas: Councilmembers Gavin, Gilliam, McKevitt, Walters, Yearman and Mayor Kelly. Nays : None. Unlawful Nonconforming Residential Uses Councilman Gilliam made a motion, seconded by Councilwoman Yearman, to form a task force to review the subject of unlawful nonconforming residential uses . Said task force shall consist of Councilmembers Gilliam and Yearman, Corporation Counsel Jentsch, Director of Code Administration and Neighborhood Affairs Pearson, two realtors, two landlords/property owners, two representatives from Neighborhood Housing Services (NHS) , and two representatives from neighborhood groups as recommended by NHS . Yeas : Councilmembers Gavin, Gilliam, McKevitt, Walters, Yearman and Mayor Kelly. Nays : None.