Village of Bannockburn, IL Part 5 Interpretations, Appeals and Variations

§ 260-1151 Interpretations.

A. Authority. The Building Commissioner, subject to the procedures, standards, and limitations of this section, may render interpretations, including use interpretations, of the provisions of this code and of any rule or regulation issued pursuant to it.

B. Purpose. The interpretation authority established by this section is intended to recognize that the provisions of this code, though detailed and lengthy, cannot possibly address every specific situation to which they may have to be applied. Many such situations, however, can be readily addressed by an interpretation of the specific provisions of this code in light of the general and specific purposes for which those provisions have been enacted. Because the interpretation authority herein established is an administrative rather than a legislative authority, it is not intended to add to or change the essential content of this code but rather is intended only to allow authoritative application of that content to specific cases.

C. Parties entitled to seek interpretations. Applications for interpretations may be filed by any person having an interest in the circumstances giving rise to the need for an interpretation; provided, however, that interpretations shall not be sought by any person based solely on hypothetical facts or where the interpretation would have no effect other than as an advisory opinion.

D. Procedure.

(1) Application. Applications for interpretations of this code shall be filed in accordance with the requirements of § 260-1131 of this code.

(2) Action on application. Within 30 days following the receipt of a properly completed application for interpretation, the Building Commissioner shall inform the applicant in writing of his or her interpretation, stating the specific precedent, reasons, and analysis upon which the determination is based. The failure of the Building Commissioner to act within 30 days, or such further time to which the applicant may agree, shall be deemed to be a decision denying the application rendered on the day following such thirty-day period.

(3) Appeal. Appeals from interpretations rendered by the Building Commissioner may be taken to the Zoning Board of Appeals as provided in § 260-1152 of this code.

E. Standards for use interpretations. The following standards shall govern the Building Commissioner, and the Zoning Board of Appeals on appeals from the Building Commissioner, in issuing use interpretations:

(1) No use interpretation shall be given with respect to the residential districts.

(2) Any use defined in § 260-1226 of this code shall be interpreted as therein defined.

(3) No use interpretation shall permit a use listed as a permitted use or a special permit use in any district to be established in any district in which such use is not so listed.

(4) No use interpretation shall permit any use in any district unless evidence shall be presented that demonstrates that it will comply with each use limitation established for that particular district.

(5) No use interpretation shall permit any use in a particular district unless such use is substantially similar to other uses permitted in such district and is more similar to such other uses than to uses permitted or specially permitted in a more restrictive district.

(6) If the proposed use is most similar to a use permitted only as a special use in the district in which it is proposed to be located, then any use interpretation permitting such use shall be conditioned on the issuance of a special use permit for such use pursuant to § 260-1162 of this code.

(7) No use interpretation shall permit the establishment of any use that would be inconsistent with the statement of purpose of the district in question.

(8) Subject to the foregoing conditions and limitations, in rendering use interpretations the Building Commissioner shall be guided by the Standard Industrial Classification Manual 1987, Office of Management and Budget (SIC). Many uses listed as permitted or special uses in the use districts established by this code are preceded by a numerical reference to the SIC. Numerals in parentheses indicate that the listed use includes one or more particular types of establishments in the subject SIC category to the exclusion of others, and the Building Commissioner shall determine whether the proposed use is most similar to the listed use or uses rather than to any of the excluded uses in rendering any use interpretation relative to such uses.

F. Effect of favorable use interpretation. No use interpretation finding a particular use to be permitted or specially permitted in a particular district shall authorize the establishment of such use nor the development, construction, reconstruction, alteration, or moving of any building or structure, but shall merely authorize the preparation, filing, and processing of applications for any permits and approvals that may be required by the codes and ordinances of the Village, including, but not limited to, a special use permit, a certificate of zoning compliance, a building permit, a certificate of occupancy, subdivision approval, and site plan approval.

G. Limitations on favorable use interpretations.

(1) Subject to an extension of time granted by the Building Commissioner pursuant to § 260-1101K of this code, no use interpretation finding a particular use to be permitted or specially permitted in a particular district shall be valid for a period longer than six months from the date of issue unless a building permit is issued and construction is actually begun within that period and is thereafter diligently pursued to completion, or a certificate of occupancy is obtained and a use commenced within that period.

(2) A use interpretation finding a particular use to be permitted or specially permitted in a particular district shall be deemed to refer only to the particular use for which it was issued, and such permit shall not be deemed to refer to any allegedly similar use for which a separate use interpretation has not been issued. Such permit shall automatically expire and cease to be of any force or effect if the particular use for which it was issued shall, for any reason, be discontinued for a period of six consecutive months or more.

§ 260-1152 Appeals to Zoning Board of Appeals.

A. Authority. The Zoning Board of Appeals shall hear and decide appeals from, and review orders, decisions, determinations, or the failure to act of, the Building Commissioner acting pursuant to his or her authority and duties under this code, and to that end the Zoning Board of Appeals shall have the same powers and be subject to the same standards and limitations as the Building Commissioner with respect to any order, decision, or determination being appealed.

B. Purpose. The appeal procedure is provided as a safeguard against arbitrary, ill-considered, or erroneous administrative decisions. It is intended to avoid the need for resort to legal action by establishing local procedures to review and correct administrative errors. It is not, however, intended as a means to subvert the clear purposes, meanings, or intents of this code or the rightful authority of the Building Commissioner to enforce the requirements of this code. To these ends, the reviewing body should give all proper deference to the spirit and intent embodied in the language of this code and to the reasonable interpretations of that language by those charged with the administration of this code.

C. Parties entitled to appeal. An application for appeal to the Zoning Board of Appeals may be filed by any person aggrieved or adversely affected by an order, decision, determination, or failure to act of the Building Commissioner acting pursuant to his or her authority and duties under this code.

D. Procedure.

(1) Application. An application for appeal to the Zoning Board of Appeals shall be filed not later than 45 days following the action being appealed and in accordance with the requirements of § 260-1131 of this code.

(2) Action by Building Commissioner. Upon receipt of a properly completed application for an appeal, the Building Commissioner shall forthwith transmit to the Zoning Board of Appeals the application, together with all papers constituting the record upon which the action appealed from was taken.

(3) Public hearing. A public hearing shall be set, noticed, and conducted by the Zoning Board of Appeals in accordance with § 260-1133 of this code.

(4) Action by Zoning Board of Appeals. Within 30 days following the close of the public hearing, the Zoning Board of Appeals shall render a decision on the appeal in the manner and form specified in § 260-1102H of this code. Such decision may reverse, affirm, or modify, in whole or in part, the action appealed from and may include such order or determination as, in the opinion of the Board of Appeals, is proper to be made in the premises. The failure of the Board of Appeals to act within such 30 days, or such further time to which the applicant may agree, shall be deemed to be a decision denying the appeal.

E. Stay of proceedings. An application for appeal properly filed pursuant to Subsection D of this section shall stay all proceedings in the furtherance of the action appealed from, unless the Building Commissioner certifies to the Zoning Board of Appeals, after the application for appeal has been filed with the Building Commissioner, that, by reason of facts stated in the certificate, a stay would, in the Building Commissioner's opinion, cause imminent peril to life or property, in which case the proceedings shall not be stayed other than by a restraining order, which may be granted by the Board of Appeals or by the Circuit Court on application, upon reasonable written notice to the Building Commissioner and on due cause shown.

F. Conditions and limitations on rights granted by appeal. In any case where this code imposes conditions and limitations upon any right, any such right granted by the Zoning Board of Appeals on appeal shall be subject to such conditions and limitations in the same manner and to the same extent as if secured without the necessity of an appeal.

§ 260-1153 Variations.

A. Authority. The Board of Trustees shall have the authority, by ordinance duly adopted, to grant variations from the provisions of this code, but only in compliance with the procedures set forth in Subsection D of this section and in those specific instances enumerated in Subsection E of this section and then only in accordance with each of the standards enumerated in Subsection F of this section.

B. Purpose. The variation procedure is intended to provide a narrowly circumscribed means by which relief may be granted from unforeseen particular applications of this code that create practical difficulties or particular hardships. When such difficulties or hardships are more appropriate for remedy, if at all, pursuant to other provisions of this Article XI, the variation procedure is necessarily inappropriate.

C. Parties entitled to seek variations. Applications for variations may be filed by the owner of, or person having a contractual interest in, the subject property.

D. Procedure.

(1) Application. Applications for variations shall be filed in accordance with the requirements of § 260-1131 of this code.

(2) Public hearing. A public hearing shall be set, noticed, and conducted by the Zoning Board of Appeals in accordance with § 260-1133 of this code.

(3) Action by Zoning Board of Appeals. Within 35 days following the close of the public hearing, the Zoning Board of Appeals shall render its decision recommending the granting or denying of the variation, in the manner and form specified by § 260-1102H of this code. The failure of the Board of Appeals to act within 35 days, or such further time to which the applicant may agree, shall be deemed to be a decision recommending denial of the variation.

(4) Recommendations of denial. Where the Zoning Board of Appeals has recommended that a variation be denied, it shall not be granted except by the favorable vote of 2/3 of all the Trustees then holding office.

E. Authorized variations.

(1) Permitted variations. The Board of Trustees may vary the provisions of this code only as provided in this Paragraph E(1). The authority of the Board of Trustees to vary the provisions of this code is subject to the prohibitions set forth in Paragraph E(2) of this section and proof by the applicant of each of the standards set forth in Subsection F of this section. Under no circumstances shall the list of permitted variations in this Paragraph E(1) be construed as an entitlement, right, or claim for any applicant. The Board of Trustees may vary the provisions of this code in the following cases and in no others:

(a) To reduce the dimension of any required yard, setback, or building spacing.

(b) To reduce by not more than 10% the required lot area, lot width, or lot depth of any lot; provided, however, that no such variation shall permit either the development of more than one dwelling unit on any lot or any increase in the otherwise permitted maximum floor area ratio.

(c) To increase the maximum allowable height of a structure:

[Amended 5-26-1998 by Ord. No. 98-12]

[1] In the O Office District to a height not in excess of 45 feet;

[2] In all other nonresidential districts, by not more than 10% of the maximum building height otherwise allowed in such district; and

[3] In any district, to allow a variation from the definition of "grade" as set forth in § 260-1226G of this code for the purpose of measuring the height of a structure; provided that the revised grade for any lot for which such variation is granted shall reasonably conform to the grades of surrounding properties and is approved by the Village Engineer.

[4] In the A Residential District, to allow an accessory structure to be built in excess of the maximum building height otherwise allowed in such district, but only if:

[Added 11-22-2010 by Ord. No. 2010-40]

[a] The new structure replaces an existing accessory structure that is nonconforming as to height;

[b] The new structure is constructed at a height that is less than or equal to the height of the existing structure; and

[c] The accessory structure is constructed in compliance with all applicable setback regulations.

(d) With respect to signs and fences:

[Amended 2-24-1997 by Ord. No. 97-8; 4-8-2013 by Ord. No. 2013-06; 12-8-2014 by Ord. No. 2014-26; 9-28-2015 by Ord. No. 2015-21]

[1] To increase by not more than 20% the maximum allowable height of any sign or fence, except as provided in Subparagraph (d)[2], [3] or [6];

[2] To increase the maximum height to not more than 28 feet, or to increase the maximum area, of an authorized pylon sign in the O District; or

[3] With respect to the R Retail District only, to vary the size, number, type, and location requirements for any sign; or

[4] To increase the maximum area of an authorized ground on-site informational sign in the O Office District only; or

[5] To vary the design and construction standards for ground signs in the O Office District from those set forth in § 260-906H(9) of this code, provided that the design and construction of the ground sign shall be subject to review and approval by the Architectural Review Commission in accordance with § 260-1166C of this code; or

[6] With respect to the O Office District only, to increase the maximum allowable height of a closed-type fence in a required interior side yard for purposes of screening building equipment.

(e) To reduce the minimum number of off-street loading spaces; to reduce by not more than 20% or one space (whichever is greater) the minimum number of off-street parking spaces otherwise required; or to vary the design requirements for parking lots when such variation will preserve trees or other natural features.

[Amended 5-17-1997 by Ord. No. 97-12]

(f) To allow the provision of a required landscaped bufferyard that is not in strict compliance with the provisions of § 260-907 of this code.

(g) To allow the repair, maintenance, alteration, enlargement, or moving of a nonconforming structure to an extent or in a manner not permitted by § 260-1004 of this code, or to authorize the continued maintenance of nonconforming lighting notwithstanding the requirements of § 260-901D(10)(a)[5] of this code.

[Amended 1-26-2004 by Ord. No. 2004-04]

(h) To allow the otherwise prohibited restoration of a partially damaged or destroyed nonconforming structure or structure devoted to a nonconforming use.

(i) To allow, for a period not to extend beyond four years following the effective date of this code:

[1] The storage in a parking area in a residential district of more than the maximum number of Class I or II vehicles specified in § 260-901D(6)(d) of this code; or

[2] The storage in a parking area in any required front or corner side yard in a residential district of Class II or III vehicles; or

[3] The provision of buffers and landscaping for Class II or III vehicles other than those required by § 260-908D of this code.

Every variation granted pursuant to this Subparagraph (i) shall run only to the applicant, as a personal privilege, and only with respect to the specific vehicle that is the subject of the application.

(j) To relax the general requirements (other than height restrictions) relating to personal wireless services antennas and facilities.

[Added 2-23-1998 by Ord. No. 98-07]

(k) To allow exterior lighting on a lot that is not in strict compliance with the provisions of § 260-901D(10) of this code.

[Added 7-11-2005 by Ord. No. 2005-20]

(l) To vary the permitted group size and indoor use restrictions set forth in § 260-607B(7)(c)[2] of this code for a specific adult conference authorized pursuant to a special use permit for a nonstudent recreational use in the College District.

[Added 2-23-2009 by Ord. No. 2009-08]

(m) To vary the restrictions set forth in § 260-607B(7)(b) of this code on the hours and dates of operation of specific nonstudent recreational uses in the College District authorized pursuant to a special use permit.

[Added 2-28-2011 by Ord. No. 2011-09]

(n) To allow the keeping of chickens on a lot in a manner that is not in strict compliance with the provisions of § 260-901D(13) of this code, or to allow the keeping of a greater number of chickens than is permitted by § 260-901D(13), provided that the variation will not result in diminution of the quality of life for the chickens kept on the property.

[Added 11-12-2013 by Ord. No. 2013-21]

(o) To increase the number of unrelated persons authorized to live together in a single-family detached dwelling, group home, or congregate home. An applicant for a variation authorized by this Subparagraph E(1)(o) may establish the existence of a particular hardship or practical difficulty as required by Subsection F of this section by proving that the requested variation is reasonably necessary to allow either: (i) persons with qualifying disabilities or handicaps as recognized under the FHA and ADA, or (ii) persons who desire to establish a residential religious institution in furtherance of religious exercise to have an equal opportunity to use and enjoy the dwelling in the same manner as similarly situated related persons.

[Added 9-11-2017 by Ord. No. 2017-25]

(2) Prohibited variations. Notwithstanding any other provision of this section, no variation shall be granted that:

(a) Is intended as a temporary measure only; or

(b) Is greater than the minimum variation necessary to relieve the particular hardship or practical difficulty demonstrated by the applicant.

F. Standards for variations.

(1) General standard. No variation shall be recommended or granted pursuant to this section unless the applicant shall establish that carrying out the strict letter of the provisions of this code would create a particular hardship or a practical difficulty. Such a showing shall require proof that the variation being sought satisfies each of the standards set forth in this Subsection F.

(2) Unique physical condition. The subject property is exceptional as compared to other lots subject to the same provision by reason of a unique physical condition, including presence of an existing use, structure, or sign, whether conforming or nonconforming; irregular or substandard shape or size; exceptional topographical features; or other extraordinary physical conditions peculiar to and inherent in the subject property that amount to more than a mere inconvenience to the owner and that relate to or arise out of the lot rather than the personal situation of the current owner of the lot.

(3) Not self-created. The aforesaid unique physical condition is not the result of any action or inaction of the owner, or of the owner's predecessors in title and known to the owner prior to acquisition of the subject property, and existed at the time of the enactment of the provisions from which a variation is sought or was created by natural forces or was the result of governmental action, other than the adoption of this code, for which no compensation was paid.

(4) Denied substantial rights. Carrying out the strict letter of the provision from which a variation is sought would deprive the owner of the subject property of substantial rights commonly enjoyed by owners of other lots subject to the same provision.

(5) Not merely special privilege. The alleged hardship or difficulty is not merely the inability of the owner or occupant to enjoy some special privilege or additional right not available to owners or occupants of other lots subject to the same provision, nor merely an inability to make more money from the use of the subject property; provided, however, that where the standards herein set out exist, the existence of an economic hardship shall not be a prerequisite to the grant of an authorized variation.

(6) Code and plan purposes. The variation would not result in a use or development of the subject property that would be not in harmony with the general and specific purposes for which this code and the provision from which a variation is sought were enacted or the general purpose and intent of the Official Comprehensive Plan.

(7) Essential character of the area. The variation would not result in a use or development on the subject property that:

(a) Would be materially detrimental to the public welfare or materially injurious to the enjoyment, use, development, or value of property or improvements permitted in the vicinity; or

(b) Would materially impair an adequate supply of light and air to the properties and improvements in the vicinity; or

(c) Would substantially increase congestion in the public streets due to traffic or parking; or

(d) Would unduly increase the danger of flood or fire; or

(e) Would unduly tax public utilities and facilities in the area; or

(f) Would endanger the public health or safety.

(8) No other remedy. There is no means other than the requested variation by which the alleged hardship or difficulty can be avoided or remedied to a degree sufficient to permit a reasonable use of the subject property.

G. Variation less than requested. A variation less than or different from that requested may be granted when the record supports the applicant's right to some relief but not to the relief requested.

H. Conditions on variations. The Zoning Board of Appeals may recommend and the Board of Trustees may impose such specific conditions and limitations concerning use, construction, character, location, landscaping, screening, and other matters relating to the purposes and objectives of this code upon the premises benefited by a variation as may be necessary or appropriate to prevent or minimize adverse effects upon other property and improvements in the vicinity of the subject property or upon public facilities and services. Such conditions shall be expressly set forth in the ordinance granting the variation. Violation of any such condition or limitation shall be a violation of this code and shall constitute grounds for revocation of the variation.

I. Affidavit of compliance with conditions. Whenever any variation authorized pursuant to this section is made subject to conditions and limitations to be met by the applicant, the applicant shall, upon meeting such conditions, file an affidavit with the Building Commissioner so stating.

J. Effect of grant of variation. The grant of a variation shall not authorize the establishment or extension of any use nor the development, construction, reconstruction, alteration, or moving of any building or structure, but shall merely authorize the preparation, filing, and processing of applications for any permits and approval that may be required by the codes and ordinances of the Village, including, but not limited to, a certificate of zoning compliance, a building permit, a certificate of occupancy, subdivision approval, and site plan approval.

K. Limitations on variations.

(1) Subject to an extension of time granted by the Building Commissioner pursuant to § 260-1101K of this code, no variation from the provisions of this code shall be valid for a period longer than one year unless a building permit is issued and construction is actually begun within that period and is thereafter diligently pursued to completion or unless a certificate of occupancy is issued and a use is commenced within that period.

(2) A variation shall be deemed to authorize only the particular construction or development for which it was issued and shall automatically expire and cease to be of any force or effect if such construction or development shall be removed and not replaced within six months following such removal.