Trending the Future of Code Enforcement

A lot of people thought 4929 Forest unapproved building alterations were no big deal; not worth pursuing. No health hazard or safety issues were involved, and had builder Michael Prince come before village council (as he had twice already) asking permission in advance of changes (as required), they would have been granted.

Commissioner Waldack had reservations and made a motion that the walls be changed back to the original brick masonry. It died quietly for lack of a second, with no discussion about issuing 4929 Forest an occupancy permit with the condition Mike Prince not start another building until he finished changing back to the approved and spec'd masonry walls on this building.

Some changes and variances were granted the project in March 2007: allowing higher density (4 additional units) and smaller parking spaces. Some changes were not authorized; substituting brick for stone, changing the roof from a faux mansard, and changing wall construction in large areas from brick masonry, to "stucco".

That stucco is actually a Senerflex® Adhered Mat Design feature, manufactured by BASF Wall Systems. It is Tyvek, a mesh with cement, styrofoam (rigid) panels cut and placed to create walls, cornices, detail features, and then sprayed with a primer and a finish coat of acrylic polymer mud and you're done. Does it look good? It looks terrific.

The architect drawings show a cross section of the design. According to BASF's sales brochure, Senerflex®Adhered Mat Design is "used when an unobstructed plane is required to allow the exit of incidental moisture from the structure’s walls. It is ideal for retrofit over walls that are not suited to adhesive attachment." It comes with a seven year wear/seven year moisture warranty. Masonry typically will last forever with rare tuck pointing needs. Is it cheaper than brick? Yes. Initially.

There's the rub; cheap now for the builder, more expensive later for the homeowners. Michael Prince has moved some of the life-cycle costs of his building downstream into the future, where the cost is not his.

Note: remember this life-cycle costing concept. It is important to the village moving forward. More later...

Back to the trending issue at hand: does this start a trend, or change direction of a trend in our village?Is this a trend for how we want buildings built in downtown Downers Grove?

Acadia On The Green began life as a full four floor steel and masonry construction (like 4929 Forest BTW). It changed structure design when the National Building Code changed, and the top three floors were built out with wood, and a brick facade on the exterior walls. That was cheaper than a full steel and masonry building, the required design up until a couple years ago. And now this, changing 4929 Forest wall construction to save some construction costs, and to move things along faster.

That was a differently made up council, and they fared just as well as the current council, trying to figure out, as Commissioner Durkin so aptly fired off "How did this happen?"

The village council can bring to bear the long view of the Strategic Plan, and of the Total Community Discussion, to the process of legislating good codes, and of setting good policy. Good codes makes for clear direction; good policy makes for long term solutions. A wall guaranteed to last for seven years is not a long term solution.

Every builder in every town posts up a bond for their project; the bigger the project the bigger the bond. Village has the option of pulling any fines levied out of that posted bond, for things like not following the requirements. The builders all know this. The village staff have enforced it many times.

Updated: Staff has confirmed that when the permit was issued, no bonding fee was required by the village. What can rightly be considered a huge loophole in the planning and enforcement process, has since been closed by staff.

Take a look at a blow-up from the plans filed with the village. This is a trail of the changes made. You see four changes are made for permit purposes; this probably where he asked for permission and it was granted. The last (top) three changes don't appear to be made to meet the requirements of a revised building permit; they were done later. These are probably the changes for which council forgiveness will be granted in January 2008.

The trend for enforcement of future projects? Builder Michael Prince knew those changes needed approval but took a pass. He told staff to take him to council and they'd get it straightened out. Council sure did; they let Michael Prince completely off the hook no matter which way you cut it; council even went on public record agreeing they were letting him off the hook, both at the January 8th workshop meeting and at the January 15th Council meeting where they approved it unanimously 6-0 (Schnell was absent).

The trend for clarity in enforcement of requirements? This doesn't straighten anything out; this twists it up in new and innovative ways. Now, any builder who does what he pleases, now he can cry foul if he's ever fined or brought to account for not following the rules. A precedent has been set. The requirements now have an asterisk by them*.

A trend for consistency with all builders and with neighboring municipalities? Some other builders I spoke with (none wanted to be on record) were miffed. They paid fines here and there over the years; it's part and parcel of building. Hinsdale's tough; village inspectors watch you like a hawk just waiting for you to do something not exactly in the approved plans. Naperville's tough too: they just don't care why you can't quite do what you said; too bad, it's fine time. Oh, and all those insubstantial changes? Change everything back to reflect the plan that was approved. Or else. Joliet is typical of many communities. Like Downers Grove they work very closely with the builder so everyone is dialed in before construction starts; from then on it has to be exactly as the approved plans show or they must get permission for changes. Want to keep building in Joliet? Follow the rules.

In one sense, building is a race against time to finish/sell a project before construction loans and costs eat you up. Materials get more expensive every month you delay, any corners that can be cut to save a buck, a nickel; all are weighed. If you're good at it, you make some money, you do more. If you're not, you rarely get to keep going. Even if you're good with one project, it's no guarantee the next won't be your last.

You don't always get it right and then the inspectors write you up and fine you, ding you, and you try and avoid more in the future by playing it by the rules. In return, you get to build in desirable areas where people pay a premium to move and live. Statistics kept by the Village Department of Community Development show a trend; a trend that enforcement and fines work. But council has sent the message loud and clear: no foul, no fines, nothing to see here, move on. The rules changed. What did they change to?

The possible new trend in rules? Say whatever it takes to get the project past the Plan Commission and get it approved by council, and then build it how you want, as long as it's close. If it poses no health or safety problems and is in code, council will approve it; council said they would approve it. Said my friend Bob the Builder, "Over there, they're tough and consistent. Over here, now somebody else got a break we didn't. What about us? We've built here, and paid fines here, and try and follow rules here. When do we get our free pass? Do we get one from now on?"

Actions speak louder than words. Rather than say to builders that builder expectations for variances and exceptions should be severely lowered, council has, by it's actions, trended towards publicly lowering the village expectations of builders. Builders will be happy to oblige and meet this new trend, these lowered expectations, and even test that new bottom, all in the quest to build a bit cheaper. Does council want that trend to continue? I have to say of course not. There's just that problem that they have taken deliberated, and deliberate, steps to do just that.

This trending is not a trend towards sound, consistent public policy.


*Rules need not apply. See your local village council for details.

C&D Wrap-Up

Tuesday should be a wrap: council should unanimously approve staff's definition of a "recycling collection center" that specifically excludes C&D facilities and transfer stations. It effectively mirrors state statute.

I tried to personally thank those who helped along the way; it was a very wide group. Whether they spoke, actively helped me, passively helped, just expressed an opinion for or against what I was doing, or let me sit down and explain why state statutes in this case should be observed and adhered to, they all became part of steering the village back on track in a somewhat open and transparent process. I liken it to steering the Titanic safely away from the icebergs.

Seniors at Cameo, led by Larraine Tresnak and Barbara McLellan
Downers Grove Coalition for Managed Redevelopment
Downers Grove Area Chamber of Commerce and Industry
Downers Grove Watch
Downers Grove Economic Development Corporation
Pierce Downer Heritage Alliance
Village of Downers Grove Office of the Village Manager
Morton Arboretum
Downers Grove Village Council
DuPage County Forest Preserve District
Village of Downers Grove Community Development Department

In particular:
- Andy Clark. He pushed me to get into it rather than simply complain about it.
- Gordon Goodman. He reminded me to keep an open ear to divergent opinion, and keep it civil. I did, even when others baited me, and that helped both broaden and sharpen my research and presentation materials.
- Brian Krajewski. His opposition to the project site when mayor stalled it long enough for me to begin getting a handle on where staff went wrong, and to build a case for protecting residents and businesses by getting it right.
- Ron Sandack. As mayor he allowed most of my meeting comments to go way past 5 minutes, and allowed considerable latitude in my comments.
- John Schofield. He acted the 'devil's advocate' to keep me on task, and he punched holes in weak parts of what I was doing, so what remained was logical, rational, and robust.
- Tom Sisal. He told me to learn the pertinent zoning and environmental law, i.e., know what I'm talking about and why.
- Marilyn Hannapel. I'm not 100% sure: she was the little grandma who came up to me after a Plan Commission meeting (that didn't have a good outcome for residents), and asked me, "When do we count?" It took persistence, but you count.

1/17/08 Council Vote Update:
5-1 it passed. The sole Nay vote, Commissioner Neustadt, I spoke with after the meeting, and I understand the reasoning behind the Nay vote as he explained it to me. From Elaine Johnson's DG Report:

"My concern is that by amending the definition of the “recycling collection facilities” we will exclude the construction and demolition debris facility from the zoning ordinance. I feel that with the new buffers in place that limit the location of recycling facilities as well as the special use process the village has the ability to review each potential application for a special use. By excluding a specific facility or business the village may be open for a law suit."

I don't agree, but I understand.

"A slap in the face of the Village."

That's a direct quote from Commissioner Marylin Schnell, speaking out forcefully on Michael Prince's 4929 Forest LLC project having changed the look and feel of the project, apparently to lower construction costs, but bypassing village requirements for prior approval of such changes.

So, is it a slap in the face or not?

What was approved then (left), and being built now (right). Then, a big fairly featureless cube filled with luxury condos. Now, a big fairly featureless cube filled with luxury condos.

The Plan Commission uses standard imperatives on any approved construction project:

"THE DEVELOPMENT SHALL SUBSTANTIALLY CONFORM TO THE ARCHITECTURAL AND LANDSCAPING PLANS PREPARED BY __________ DATED ___________EXCEPT AS SUCH PLANS MAY BE MODIFIED TO CONFORM TO VILLAGE CODES AND ORDINANCES."

What staff and Mayor Sandack said is the new look substantially conforms, so let's not get into stop orders and potential litigation. I can relate to that; it is a big project that is in a TIF district, so the property tax is all gravy for the village: a good deal so let's not screw things up, just let it go because it is substantially the same building. There is no harm, so no foul.

The Plan Commission is very consistent in their requirements, and makes very clear:

"ANY CHANGES TO THE CONDITIONS REPRESENTED BY THE PETITIONER AS THE BASIS FOR THIS PETITION, WHETHER THOSE CHANGES OCCUR PRIOR TO OR AFTER VILLAGE APPROVAL, SHALL BE PROMPTLY REPORTED TO THE VILLAGE. CHANGES MAY REQUIRE ADDITIONAL REVIEW OF THE SUBDIVISION"

and:

"IT IS THE PETITIONER’S OBLIGATION TO MAINTAIN COMPLIANCE WITH ALLAND VILLAGE LAWS, ORDINANCES, REGULATIONS, AND POLICIES." APPLICABLE FEDERAL, STATE, COUNTY."

So I see where Schnell feels the Village has been "slapped in the face" by the builder. It is Mr. Prince's obligation, as the owner of record of 4929 Forest LLC, and as part of the approval of the development, that he present any changes for approval prior to making them. That is the requirement.

There are multiple meetings required by muni ordinance where the look and scope of the project are hashed out, (28.1602), a preliminary approval by staff (28.1603), final approval (28.1604), and any amendments to scope and look (28.1605). There's at least two building inspections as well as an electrical, plumbing, and sewer/water inspection where the builder is required to be at these inspections, and so he has had multiple opportunities at his location to make the village aware of changes made.

No wonder Schnell used the analogy of a "slap in the face"; Mr. Prince had his opportunities, as did the inspectors, were they equipped with a set of proper plans.

So, as Commissioner Sean Durkin wondered , sounding a bit embarrassed and miffed by this turn of events, how did this come to pass?

Good question.

Given Mr. Dabareiners very short track record with the village, had he known of changes in the project, I think he would have immediately made 4929 Forest LLC follow village procedure, probably with another red tag (halting the project until back into conformance, which he has done once already). He seems quite good about his job. So that may leave it at the feet of the field inspectors. A dropped ball.

Does this open the door wider for the next builder to ignore procedure? There's plenty of construction projects planned or underway in the village that, given the building economy right now, builders would love to squeeze some cost out of. If the village is granting forgiveness instead of permission, why not change cast stone to brick, and brick to stucco or something cheaper?

Where were the inspectors bringing this to the attention of the village during the framing of the building? Changing a roof line and wall materials are pretty noticeable, but I don't know if it is substantial, and I highly doubt it makes the whole project unsafe in some way.

It is a fact on this one, it is specifically the builder responsibility to inform and ask permission for the variances from approved plans. Everyone who builds here knows this. I do not know the bond amount- the minutes from the April 2005 Plan Commission meeting are not available on-line (a continuing saga). 'Onus' is a legal obligation, and it is on the builder in this case.

It will be interesting to see if there is any fine, taken out of the bond fund, or if council gives 4929 Forest, LLC, a pass on this. This situation, and the village's response, will set a precedent, so staff and council must be careful that the precedent is not that we as a village lose control over how things get built.

If they give a free pass with no fine- no slap financial slap on the wrist for Schnell's "slap in the face"- it is inevitable there will be another builder who will do the same. Is that what we want?

Old Knowledge, Recently Reminded

Municipalities, Home Rule or not, are expected to comply with requirements set forth by the Illinois Compiled Statutes. Communities may sometimes change those requirements, but until such time as the municipality otherwise provides by ordinance, those requirements are in effect to the full extent of the law, and even then that power to change by local ordinance can be preempted by the state.

Hit’s, Misses, and a Great Idea

Hits

Applying for FEMA grant money.

On two 2008 storm water related projects the village is an applicant for FEMA grant money, to the tune of a couple million bucks. There’s also the opportunity to be a sub-applicant to the state for more of the same FEMA money. FEMA has nation-wide funds of about $25 million annually for precisely this type of work, and the state gets a minimum $500,000 extra to dole out as it sees fit. Starting during Mayor Krajewski’s term, our village government got pretty good at writing for grant requests and filling applications (way, WAY harder than it sounds).

Last year all of the federal money was granted, but like I said, our village staff is pretty good at putting together a grant request, plus we have the detailed engineering study and can produce proper plans documenting what’s to be done. FEMA likes that.

In 2007, the state awarded only a bit over $100K of the $500K available. That left almost $400K unused. We could use that each year easy. I emailed VM Pavlicek and asked if we are applying both as an applicant (for federal money) and as a sub-applicant (for state funds), and Megan is supposed to get back to me.

Home Rule Sales Tax (HRST) Hike

Tuesday council approved raising our HRST based take from ½ cent to ¾ cent. Technically, they’re raising it 50%. It does have a sunset clause and “become null and void at the end of the debt service issued for stormwater related improvements.”

Each ¼ cent of Home Rules Sales Tax currently generates $2,300,000.

Misses

Non specific Tele-Tax hike.

They also approved a 1% hike in the telecommunications tax, from 5% to 6%, a 20% raise in the rate.

The proposed increase will take effect on July 1, 2008. Revenue generated by this increase in FY08 is estimated to be $410,000, which will be used to fund expenditures in the Capital Projects Fund. The full year revenue generated by this tax increase for FY09 is estimated to be $820,000.

There is no sunset clause for this tax hike, because it fuels the Capital Projects Fund. The money can be spent on whatever the village says, whether it be sewers or streets...or a new Fleet Services building, a new Police Station, or a new Civic Center.

A Great Idea

Linda Kunze reads minds.

Staff has been working on this one off-radar, but it’s a great idea and deserves to see the light of day.

I’ve been talking about a single downtown waste hauler since the last election; then we can do recycling downtown, cut down on garbage truck traffic, and we could make our alleys and business rear areas look a lot better. The village could also place recycling cans around downtown; permanent ones instead of the temporary ones we see at downtown events.

Talk about a topic no one wanted to hear.

Linda Kunze, Downtown Manager of the Downers Grove Downtown Management Corporation, thinks it’s a great idea, is in a position to do something about it, and is pushing forward. The village has committed to build a total of three common dumpster areas around downtown, to centralize and clean up collection areas, making it very easy for downtown commercial businesses to recycle just like we do at our curbs every week.

This means tons of paper, cans glass, all going to recycling instead of to landfills, and we get cleaner looking alleyways. That opens the possibility for further development. Check Naperville’s downtown: there are a couple areas where there are backyard restaurant patios, and rear-facing clusters of shops on former alleys. I’m not saying that’s what will happen, I’m saying those types of things become possible.

The first centralized collection area goes in this spring, the two additional units the following year. Downtown Downers Grove will get the businesses invested in the concept and use. Council can help move things along by making it clear they support this, and expect businesses to get on board.

This is just one example of recycling bins. Here's another where local artists design and build recycling receptacles out of recycled materials. The possibilities are many.

Bravo, Ms. Kunze.

Best Christmas card this year...

...from the residents of 5300 Walnut, Cameo Condos. Sent nominally by Lorraine Tresnak, it was a communal card with a 6 page insert:

"Dear Mark,

As the holiday season approaches we here at Cameo wish to extend our heartfelt thanks and appreciation for all the time and effort you devoted to our cause.

Best wishes and season's greetings to you and your family."


It's signed by a bunch of the residents who live there. As sweet as any holiday treat I'll have this year, that's for sure. Thank you all, and you're welcome!

The Bullet We Dodged

Lest you think the village could have any real control over a C&D facility, see what Woodridge is going through...

So when do we say "That’s enough"?

Like most guys, I subscribe to the hypothesis that when a project is 80% done, it’s done. From then on, it’s just clean up. Employing the rule of 80/20 to the stormwater issue, we should be able to get to that 80% finished plateau for about $68 million. The last 20%, the clean up, will cost the remaining $272 million.

So I guess my question is this:

Do we really want it all done? Do we really want every possible problem, no matter how small or how expensive it may be, to be completely addressed? Maybe there is just some areas of town, like 40^th and Glendenning, that need to be open unbuildable land forever, regardless of how much developers want to build. Maybe these are areas where public condemnation needs to occur for the better good. I can think of a couple homes that should be bought by the village and torn down, and the lots left empty.

I know: Mark, getting cold feet? No stomach for the tough decisions?

There’s plenty of cheap shots to be taken on this one, but I won’t be taking them on anyone thinking maybe $340 million is a little pricey. Maybe, like our other taxing bodies have found along the way, there’s a plan B that needs to be examined before we jump headlong into a 30 year commitment that may end up with at least $300 million in additional interest costs.

I'm in for the 80% done at 20% cost. If only that worked in real life, eh?

Definition Update

It appears the new definition will be on the 1/8 council workshop agenda.

C&D Update: Winding Up Some Loose Ends

Tonight the resident volunteers of the Plan Commission voted to send a positive recommendation to council to adopt into our muni code a new definition of "recycling collection facility". This effectively mirrors the state definition, which is very good for residents here in our village. Village also defers to the Illinois Environmental Protection Act for further defining, as separate and distinct, a "construction and demolition debris facility" and a "transfer station". This is a 180 degree turnaround on a definition that originally said they were the same thing, and avoids opening a potential Pandora's Box of problems for the village. In addition to the Plan Commission, the resident volunteers of the Environmental Concerns Commission acted in a key advisory role to village council on this matter.

Recycling collection facility. A facility or site designed for the purpose of receiving articles or materials limited to non-hazardous, nonspecial, homogeneous, nonputresable materials such as dry paper, glass, cans or plastic , which are to be transported to another location for distribution or processing, which may or may not be the principal use on the lot where located. The term "recycling collection facility" as used in this Zoning Ordinance shall not include general construction or demolition debris facilities as defined in 415 ILCS 5/3.160, and transfer stations as defined by 415 ILCS 5/3.500 , facilities located within a structure principally devoted to another use, facilities temporarily located on a lot under authority of a temporary uses, and facilities for collecting used motor oil which are necessary to an automobile service station.

The modifications clarify that construction and demolition debris collection facilities and garbage transfer stations as defined by the Illinois Environmental Protection Act are not included as a permitted or special use in the Village.

This will be work shopped at the council on 12/11, and I expect council will approve the following week at the regular village council meeting on 12/18, so I do not anticipate any further action being required. (I'll post up if that changes!)

This ends a long period of uncertainty for several hundred residents of Downers Grove, and effectively commits our local government to observing and adhering to the intent and spirit of the state Environmental Protection Act.

There's plenty of you out there that know what's up when I say thank you for your help, for your emails to council, your voice, and for your kind words of encouragement. It was very gratifying to see residents and business alike, from many different perspectives, listen, look critically and thoughtfully, come together on a consensus, and make a difference.