By Bob Balgemann

Resident Charles McLean hadn’t met with much success in his attempt to build a 50-foot chain link fence on the vacant, quarter-acre lot he recently purchased at 7315 Mildred Road.

The purpose, he said, was to provide space for his dog to run free and to enclose things he would like to keep on the lot. At one point in the process, his wife, Linda said they might plant a garden, but that there would be no planned new construction.

Charles McLean’s first encounter with opposition to his requested variance, to allow the fence, came from village staff. It recommended denial of the variance “because the Village Zoning Code prohibits construction of accessory structures where there is no principal structure.” In this case, the fence was considered the “accessory structure.”

There once was a house on this property, but it was demolished.

Beyond that, staff determined four of the six Findings of Fact had not been met. The Findings were written to ensure that a use allowed by a variance would not be detrimental to the immediate surroundings or nearby area. The Findings must be met for a variance to receive a positive recommendation for approval.

Four neighbors were against the fence and they expressed their views April 25, during a public hearing before the planning and zoning commission (P&Z). The commission ultimately recommended, in a unanimous vote, that the variance be denied.

The first glimmer of hope came May 2, before the planning and economic development committee (PED). There, committee Chairman and Village Trustee James Kidd spoke in favor of the request and voted that way. Fellow Trustee and committee member Erick Beck voted “no.” Community members Amanda Miller and Ike Trickie abstained; two other committee members were absent. That left a tie vote, which brought Mayor Steve Johnson into the picture.

Before casting his vote to break the deadlock, he said, “I understand the concerns, but I would not support this.” Then he voted “no,” which provided the 2-1 result with the two absentions and two absent, and a third recommendation for denial of the variance.

Because of that overall recommendation the matter went to the May 16 village board meeting as unfinished business, not as part of the consent agenda. The consent agenda only consists of positive recommendations and they are approved under one motion, with no discussion.

Discussion is allowed during unfinished business and Village Administrator James Richter II began by reviewing what had happened in the process so far, including actions at the P&Z and PED meetings.

He said village staff initially recommended denial of the variance because there was no hardship or special circumstance – one of the required Findings of Fact – that would warrant a fence on that property. “Staff concerns were compounded by compliance issues we’ve had with adjacent properties, actually to the north, that Mr. McLean rents. Quite frankly, we were concerned that this property may become cluttered as a storage area, which would be inconsistent with the surrounding neighborhood and the character of that.”

Board discussion

Trustee Kidd opened the following board discussion with three questions.

First, he asked Mayor Johnson why he voted “no” on approving the variance?

“I cannot support any type of fencing on any type of residential area without either a home or a building type of thing on that facility,” the mayor replied.

Then he asked Johnson, “Did you drive by?” the property.

“I’ve driven by that area, yes,” the mayor answered.

Kidd’s second question was how many other elected officials drove by and looked at the property? And third, what legal responsibility does the village have if we deny Mr. McLean the opportunity of putting up a fence? And let’s say a kid from across the street who – evidently there’s some kind of neighborly feud doing on – that a kid climbs a tree and falls and gets hurt. And Mr. McLean is now responsible. Do we have any legal responsibility for denying the fence?

“Nope,” Village Attorney Tom Green replied.

Kidd continued: “I’m voting ‘yes’ for this because it just makes sense to me that it’s his property and there’s a building close to there that’s a garage. And the five times I drove by I’ve seen Mr. McLean mowing, cleaning up brush along the back fence, I think, with roto tilling. And the garage area does (appear) to be looking orderly and not cluttered.”

Trustee Joe Seipts said he went by that property on Saturday. No one else responded to Kidd’s question about visiting the lot in question.

“I’ll be voting ‘yes’ because it’s fenced on three sides,” Trustee Seipts said. “He’s not putting up a wooden fence where it’s gonna cause people (so) they can’t see … to back in and out of their driveway. I know he has ‘no trespassing’ signs, so I don’t know if there are incidences where kids are playing in the yard, if he doesn’t want them. But that will just close that off. And it’s a chain-link fence and I don’t see a problem with it. It’s an empty lot, you say, but it’s also his property and he’s protecting his property with a fence.”

Trustee Jake Schmidt said he was aware of the historical compliance issues around the property to the north. And the fact is a chain-link fence could be seen through. To village staff, he asked, “Do we feel that code is sufficient enough to enforce that property with compliance issues, should the applicant begin to use that as an unsightly storage facility?

“We have acceptable codes in place, that if it became an unsightly storage area, we can enforce that,” Administrator Richter replied.

Trustee Schmidt said he agreed with Trustee Seipts’ comment that it’s McLean’s property. “Fencing it seems to be relatively reasonable,” he said. “I would just hope that (if) we do approve this, that staff uses the full enforcement of the code as written, to ensure that the applicant is holding the property to a standard we expect it to be.”

With no further discussion, the board voted 5-2 to approve Ordinance 18-22 on first reading. Voting “yes” were trustees Seipts, Schmidt, Kidd, Aaron Wilson and Terri Bailey. Dissenting were Trustee Beck and Mayor Johnson. Second and final reading is expected to be on the June 6 board agenda.

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