Chambana Sun

City of Urbana Plan Commission met March 7

Here are the minutes provided by the commission:

MEMBERS ATTENDING: Dustin Allred, Will Andresen, Lew Hopkins, Bill Rose, Karen Simms, Chenxi Yu

MEMBERS ABSENT: Debarah McFarland

MEMBERS EXCUSED: Andrew Fell

STAFF PRESENT: Dave Wesner, City Attorney; Kimberly Smith, Director of Community Development Services; Kevin Garcia, Principal Planner; Teri Andel, Administrative Assistant II

OTHERS PRESENT: Geoffrey Bant, Nancy Barenberg, Joanne Budde, Christy Donovan, Barb Franzen, Stan Friese, Grace Harshbarger, Jeffrey Harshbarger, David Huber, Adam Martinsek, Lori Martinsek, Vicki Trimble, Jim Tucker, Marla Tucker

A. CALL TO ORDER and ROLL CALL

Chair Allred called the meeting to order at 7:01 p.m. Roll call was taken, and there was a quorum of the members present.

E. CONTINUED PUBLIC HEARINGS

Plan Case No. 2483-M-23 – A request by the Urbana Zoning Administrator, on behalf of the Urbana City Council, to rezone 205 North High Cross Road from B-3 (General Business) to B-1 (Neighborhood Business).

Chair Allred re-opened the public hearing for Plan Case No. 2483-M-23. Kevin Garcia, Principal Planner, presented the written staff report to the Plan Commission. He summarized the history of the subject property. He reviewed the rezoning criteria that the Plan Commission should consider when making a determination on what to recommend to City Council. He noted that the most relevant criteria that pertains to the proposed rezoning are Criterion #4 (The relative gain to the public as compared to the hardship imposed on the individual property owner.) and Criterion #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.). He read the options of the Plan Commission and presented City staff’s recommendation that the Plan Commission carefully consider the rezoning criteria and determine whether to recommend approval or denial to City Council.

Chair Allred asked if any members of the Plan Commission had questions for Mr. Garcia.

Mr. Hopkins asked what the conditions were for approval of the Conditional Use Permit to allow the self-storage facility on the subject property. Mr. Garcia did not feel that the conditions were relevant; however, he recalled the conditions were that 1) that the self-storage facility adhere to the concept plan attached to the application; 2) that a fence is installed along the southern and eastern property lines; 3) the self-storage facility’s operating hours shall be between the hours of 7 am to 10 pm.; and 4) something about security. There were no conditions on the lighting because the Zoning Ordinance is robust when it comes to lighting regulations. Mr. Hopkins stated that the conditions are relevant because it is relevant to think how the current zoning category works or does not work for this particular use. Mr. Garcia stated that the self-storage use has already been permitted. Mr. Hopkins understood and stated that if the Plan Commission approves this case, they would be changing the possibility of a conditional use.

Mr. Hopkins understood that approving either the proposed rezoning or Plan Case No. 2484-T-24 would result in the approved self-storage facility to be located on the subject property to become a non-conforming use, but would have no effect on the Conditional Use Permit that currently exists for this parcel. Mr. Garcia said that was correct. Conditional Use Permits are valid for a year from the date they are granted, so the developer has another eight or nine months to construct the selfstorage facility.

Mr. Hopkins inquired about Section X-7.B of the Zoning Ordinance. Mr. Garcia read the Section aloud, which states, “If a main building, other than a dwelling, is hereafter occupied by a lawful conforming use, and such use thereafter becomes nonconforming, then such use shall be terminated within 40 years after the date of the completion of the building or the date of the completion of the last substantial enlargement, conversion, or structural alteration of the building, or within 30 years after the use becomes nonconforming, whichever is later.”. He replied that should one or both of the cases tonight be approved, then the self-storage facility at 205 North High Cross Road would be non-conforming before it is even built. So, the self-storage use would have to be terminated after forty years.

Mr. Hopkins inquired about the deed restriction on the subject property. Mr. Garcia stated that he has not been provided with a copy of the deed or its restrictions. He tried searching for it and could not find it. Mr. Hopkins asked if the deed restrictions go with the land. Mr. Garcia said yes.

Mr. Hopkins asked who enforces the deed restrictions. Dave Wesner, City Attorney, replied that the City only gets involved if the City owns one of the parcels. The subject property is owned by OSF and was sold to OSF by Aldi, so the deed restrictions would be enforced by Aldi. Any changes to the deed restrictions would be between the owners of the subject property and of the Aldi property.

The City would have no involvement with regards to changes to the deed restrictions to these two properties. Mr. Hopkins felt this was important because the deed restrictions are balancing or are contradictory to either of the parties. On one hand, the deed restrictions provide some of the restrictions that the neighbors are asking for by rezoning the subject property from B-3 (General Business) to B-1 (Neighborhood Business). On the other hand, the deed restrictions make some restrictions that prevent the developability of the property to uses that the City might wish to have in order for the gains allowed in the B-3 district.

Mr. Rose asked for an interpretation of “community need” in Criterion #7. Mr. Garcia replied that he interpreted it to mean the whole of the City of Urbana because if there is a criteria that would imply more local, then it would say “neighborhood” or “district”.

Chair Allred asked staff to explain how the Plan Commission is meant to use the criteria in making a determination. Not every factor needs to be met. Mr. Garcia stated that it is a balancing act. If the Plan Commission finds one criterion that weighs against another, then they could use that criterion to base a decision on. Some types of cases require that all criteria are met; however, rezoning cases are not like those.

Chair Allred commented that while the written staff report interprets Criterion #2 to be whether there is an effect on neighboring property values, he feels that Criterion #2 is to evaluate the effect of the proposed rezoning on the property value of the subject property. Mr. Garcia stated that is a valid interpretation.

Ms. Yu asked for clarification on why the City is asking for a rezoning of the property after the Conditional Use Permit was approved for a self-storage facility, especially if the City believes that a self-storage facility should not be allowed in the B-3 Zoning District. Mr. Garcia explained that the reason for the proposed rezoning is because City Council passed a resolution asking City staff to reconsider the zoning for the subject parcel. One of his duties as the Zoning Administrator is to do all of the duties assigned to him by the Zoning Ordinance, and one of those duties says that if City Council or even the Plan Commission directs the Zoning Administrator to rezone a parcel, then he needs to bring a rezoning case forward for that parcel.

Ms. Yu asked if the City Council was presented with the option of removing the self-storage facility use from the B-3 Zoning District as a way to achieve what they are seeking. Mr. Garcia said no.

Chair Allred asked for verification that “community business” and “regional business” Future Land Use designations do not map one-to-one into particular zoning districts. Mr. Garcia said that is correct.

Chair Allred asked if High Cross Road and University Avenue are both considered to be arterial roads. Mr. Garcia said that he believed so. [Ed. Note: University Avenue is a major arterial and High Cross Road is a minor arterial in the Mobility Map in Appendix “D” of the Comprehensive Plan.]

With there being no further questions for City staff, Chair Allred reviewed the procedure for a public hearing and opened the hearing for public input. He invited proponents of the case to approach the Plan Commission.

Joanne Budde, resident of Beringer Commons, approached to speak. She said that she found the restriction and easement agreement between Aldi and OSF Healthcare for the subject property. She stated that the two parties can change the agreement if they should choose to do so. She agreed with the City Attorney, Mr. Wesner, that whoever purchases the parcel in the future could also negotiate with Aldi to change the agreement, so who knows what will happen in the future. She noted the uses that the current agreement prevents and also allows.

Ms. Budde pointed out that even though the Plan Commission voted unanimously four years ago to rezone the parcel from B-1 to B-3, the Plan Commission members had concerns about what could happen if they rezoned the parcel. Now, here we are faced with a zoning district that has no height restrictions and limited restrictions on the number of inappropriate businesses that could be built next door to a residential neighborhood.

She noted a correction to the number of yes votes for the rezoning case in 2020. There were four members in favor of the rezoning instead of three.

She stated that it is speculative at this point as to whether the rezoning would cause a hardship on the property value of the parcel in question. She said that OSF Healthcare has assets of two billion dollars, so it would not be a hardship for OSF. They purchased the property for $300,000 and are now asking $400,000, which might be one of the reasons why the parcel has not been sold. Another reason might be because they do not have a “For Sale” sign posted on the parcel.

Ms. Budde stated the following reasons for supporting the proposed rezoning: 1) the City’s Comprehensive Plan shows the area across the street from the subject property as being “residential”, but it might be hard to sell homes with an industrial type business that would be allowed in a B-3 Zoning District; 2) the Comprehensive Plan says that the City should ensure appropriate zoning in established neighborhoods and ensure the site design for new development in established neighborhoods is compatible with the built fabric of that neighborhood and that the new development should be of high quality and aesthetically pleasing. Many of the uses allowed in the B3 Zoning District would not be aesthetically pleasing to the surrounding residential neighborhood; 3) the City would not have rezoned the subject property if OSF did not ask for the property to be rezoned so they could build a medical clinic; 4) a number of court cases that say you cannot expect the zoning to stay in place forever; 5) with regards to tax revenue, self-storage units do not charge sales tax; and 6) the B-3 Zoning District allows so many uses that are inappropriate for a surrounding residential neighborhood.

She urged the Plan Commission to correct a mistake that was made by approving the proposed rezoning request.

Nancy Barenberg, resident of Beringer Commons, approached the Plan Commission to speak. She stated that the six-foot wall is not high enough to hide the self-storage units. Beringer Commons is a wonderful neighborhood that the residents take pride in.

Vicki Trimble, resident of Beringer Commons, approached the Plan Commission to speak. She talked about the number of communications that were submitted. Some of the communications were submitted in time for the February 8, 2024 meeting but not given to the Plan Commission members. This was rectified by City staff sending them out in the packet for the February 22, 2024 meeting. She urged the Plan Commission members to take the time to read all of the communications that had been submitted if they did not have time to read them already or to read them again in case they forgot since this case had been ongoing for a while now.

Ms. Trimble stated that she pays $15,000 a year in property taxes, and she moved there for safety and because of the neighbors and the location to Aldi’s and the Post Office; not to have an inappropriate use constructed next door.

She mentioned that the residents of the residential neighborhood next to the subject property have been doing everything they can to get their views across to the Plan Commission. They have submitted communications and came to the meetings to speak.

Chair Allred invited opponents of the proposed case to approach the Plan Commission to speak.

David Huber approached the Plan Commission to speak. He finds this case a misappropriation of City resources, money and staff time. He stated that while he does not know anyone who lives in Beringer Commons or the person who is interested in building a self-storage facility on the subjectproperty, he does own properties zoned B-3. While cases do not set a precedent for other things, this case essentially communicates that rezoning is conditional, and when a use comes up that we don’t like, then the City will take the zoning back and down zone the property.

Mr. Huber mentioned that at the rezoning meeting in 2020, Mr. Hopkins stated that the rezoning would survive whether the special use permit for a medical clinic was acted on or not. He pointed out that there are aspects of the Zoning Ordinance that would restrict certain uses allowed in a B-3 Zoning District from developing on the proposed site.

He stated that there are more things that the public can do to take action proactively rather than waiting until something bad is proposed or has happened. People should take ownership of their city.

He stated that he is emphatically against the proposed rezoning and encouraged the Plan Commission to reject it and send it back to the City Council.

Mr. Garcia read the letter from OSF Healthcare dated February 22, 2024 into the record. He clarified that the public input received since the previous meeting included an email from Joanne Budde, an email from Jim and Marla Tucker, and an email from Charles Warmbrunn. The communications included in the handout at this meeting were communications handed out at the previous meeting, so the Plan Commission members who were not in attendance of that meeting would have them.

With there being no further input from the audience, Chair Allred closed the public input portion of the hearing and opened the hearing for Plan Commission discussion and/or motion(s).

Ms. Yu wondered if there was a better way to handle this situation. In 2020, the City allowed the property to be rezoned from B-1 to B-3 because we wanted to encourage a medical clinic to be built.

However, things changed and issues that we were afraid of are now happening. She does not feel that the City made a bad decision to rezone in 2020. It is just that the Plan Commission and City Council do not have the tools to support them doing good for the community.

Mr. Hopkins agreed with Ms. Yu. He stated that we know we need to reconstruct the Zoning Ordinance and have ideas of how to do it; however, we do not have enough resources to revise it.

So, it is a bit tricky on how to deal with the current situation.

He inferred from the letter OSF Healthcare submitted and their absence at this meeting that OSF has chosen not to actively present their legal arguments against the rezoning of the subject parcel.

He believed that to some extent OSF’s legal arguments of reduced possibilities and potential gain from the B-3 zoning are internally contradicted by their own restrictions on the uses allowed in the B-3 Zoning District, and not just the uses that may actually be impossible because of distance constraints, etc. So, he sees this as OSF’s own acknowledgement that B-3 is the wrong zoning for the parcel.

Mr. Hopkins stated that they need to understand that the Plan Commission cannot change the fact that a conditional use permit exists for the proposed site. He noted that approval of either this case or Plan Case No. 2484-T-24 would cause the conditional use permit to become non-conforming. If the City only approves Plan Case No. 2484-T-24 and not the proposed case the Plan Commission is discussing now, then the property would remain zoned B-3. He felt that the City might have more opportunity than they might under other circumstances to rezone the property without legal risk.

On the other hand, to achieve the tactic of the conditional use permit not becoming a nonconforming use, approving Plan Case No. 2484-T-24 would be a less risky strategy.

Ms. Simms stated that there are many restrictions on the use of the proposed site in the deed restriction, and the deed restrictions follow the property. She asked what uses would still be allowed in the B-3 zoning.

Ms. Yu said that the City approved the rezoning from B-1 to B-3 in 2020 because we wanted OSF to build a medical clinic. That did not happen, so she does not see any reason to not change the zoning back to B-1. She added that the City does not want to change zoning back in all cases; however, in this case, she felt the property should be zoned B-1.

Mr. Hopkins addressed the deed restrictions. There are two reasons not to rely on them: 1) the deed restrictions are putting under private control the control of land use, and it does not restrict every use that would be restricted by rezoning the property to B-1; and 2) the deed restrictions might restrict uses for some people that might not appropriately be restricted by private use of land regulations. He noted that since the public does not have control over the deed restrictions, OSF could renegotiate with Aldi. He does not like delegating or relying on private parties to control city responsibilities.

Chair Allred stated that the Plan Commission does not have a recommendation from staff for approval or for denial. The Plan Commission bylaws require them to adopt a reason for their recommendations based on staff’s recommendation. Since there is no staff recommendation, the Plan Commission members need to adopt findings that explain the reason for any motion put forward. The findings should be from the La Salle National Bank and the Sinclair criteria.

Mr. Rose stated that in looking at the criteria, he believes that importance should be assigned to the Comprehensive Plan. He moved that the Plan Commission forward Plan Case No. 2483-M-23 to the City Council with a recommendation of approval based on Criterion #8, “The care with which the community has planned its land use development.” The guidance from the Comprehensive Plan shows the parcel as being a B-1 property.

Ms. Yu pointed out that the Comprehensive Plan shows the parcel as being “community business” not B-1. Mr. Garcia added that is correct and future land use designations do not tie directly into the zoning districts.

Chair Allred asked if Mr. Rose would agree to amend the motion to include Criteria #3, #5, and #7 as well as Criterion #8. Mr. Rose said yes. Ms. Yu seconded the motion. Roll call on the motion was as follows:

Mr. Andresen - Yes Mr. Hopkins - Yes

Mr. Rose - Yes Ms. Simms - Yes

Ms. Yu - Yes Mr. Allred - Yes

The motion passed by unanimous vote.

Mr. Garcia noted that the earliest this case would be forwarded to Committee of the Whole would be on March 18, 2024. However, since there is a possibility that City Council may be having a rescheduled meeting on this date, the Committee of the Whole could be rescheduled to Wednesday, March 20, 2024. …

L. ADJOURNMENT OF MEETING

The meeting was adjourned at 9:10 p.m.

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