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The City’s approval of a water-pumping station at 2525 Church St. has upset neighboring property owners who say they did not receive adequate notice of the project and a chance to voice their concerns before City Council approved it on Feb. 12. And after that, City attorneys ruled that the City’s Zoning Board of Appeals (ZBA) lacked jurisdiction to hear their appeal, leaving their only possible recourse expensive, time-consuming litigation in the judicial system.
On March 7, Evanston residents Verzell James and Glen Mackey (the “Appellants”) went to the City’s zoning office to file an appeal of various decisions made by the City’s zoning officials and the City’s Design and Project Review Committee (DAPR) in connection with a proposed water-pumping station. Although it is to be located as close as possible to the North Shore Channel, the 3,620 square foot facility is across the street from their homes. At that time, a zoning official told them the zoning office had no jurisdiction to accept the appeal, and that their only recourse was to go to court.
On March 8, after a City attorney interceded, Mssrs. James and Mackey were allowed to file their 78-page appeal with the City’s zoning office.
Two weeks later, in a letter dated March 22, Assistant City Attorney Mario Treto Jr. advised Appellants that the ZBA lacked jurisdiction to hear their appeal. His letter states that City Council approved a Municipal Use Exemption for the project, and the ZBA does not have jurisdiction to review a decision of City Council.
The Water-Pumping Station
The proposed water-pumping station and connecting piping will be located on land owned by the Metropolitan Water Reclamation District (MWRD) that is zoned by the City of Evanston as OS, or Open Space. The City recently entered into a 50-year lease of the property from MWRD and also obtained easements from MWRD.
On Feb. 12, City Council approved entering into an agreement with the Morton Grove-Niles Water Commission (MGNWC), in which the Commission agreed to construct the water pumping station. The proposed pumping station will receive water from the City’s water treatment facility at Sheridan Road and Lincoln Street, and it will boost the water pressure so the water can be transmitted to Morton Grove and Niles. Under prior agreements, Morton Grove and Niles will pay Evanston a fee to treat and transmit the water.
The MGNWC will pay to construct the pumping station and be the owner of the pumping station, said Dave Stoneback, Director of the City’s Public Works Agency. Evanston will operate the water-pumping station remotely from its water-treatment plant, he added.
The vacant building on the site that was formerly used for Shore School will be demolished.
The Zoning Process
Start to finish, the public zoning process lasted a few weeks.
Section 6-15-9-2 of Evanston’s Zoning Code provides that certain buildings are permitted uses in an OS zoning district, including a public community center and a public recreation center. While a water-treatment facility is not mentioned in that section, Sec. 6-7-4 contains a “Municipal Use Exemption,” which provides, “Any governmental or proprietary function owned or operated by the City shall be a permitted use in any district.”
Sec. 6-7-4 goes on to say that City Council may approve buildings “owned and operated” by the City that do not comply with all of the requirements of an OS district if, among other things, “the adverse impact on surrounding properties resulting from such noncompliance is minimized.”
MGNWC asked the City of Evanston to apply the Municipal Use Exemption to allow it to construct the pumping station.
On Jan. 31, 2018, a City zoning officer determined that the proposed use was “compliant” with the Municipal Use Exemption. The zoning officer also determined that the proposed building was compliant with various standards including one relating to building height, which requires that buildings in an OS district may not exceed a height of 35 feet if the district is adjacent to a residential district.
In examining the gross floor area, though, the analysis considered only the gross floor area of the public bathrooms, which are 258 square feet, not the water-pumping stating itself. Under the plan, the bathrooms could be added later if a splash park is constructed in the area.
On Feb. 7, DAPR met to consider the project. At that meeting, the Superintendent of MCNWC said the impact on neighboring properties would be mitigated by locating the facility as far to the west as possible, with all equipment in the building and the water pumping underground. In addition the building was designed to be park-like and residential in character. The Committee voted, 10-0, to grant preliminary approval of the project, and to provide a positive recommendation to City Council for the Municipal Use Exemption.
On Feb. 12, City Council adopted Resolution 10-R-18 in which it found that the construction of the water pumping station is necessary for the provision of City services and that it minimizes the adverse impact of zoning noncompliance on surrounding properties. Council approved the project, and granted a Municipal Use Exemption to the zoning requirements of the OS District for a water-pumping station to be constructed on the site.
After Council approved the project, Mr. James, Mr. Mackey and other neighboring property owners voiced concerns during the public comment section of the City Council’s Feb. 26 meeting. Mr. Mackey and others also voiced concerns at the Feb. 28 DAPR meeting. They said there had not been public notice before DAPR considered the project on Feb. 7 and Council approved it on Feb. 12.
Among other things, they expressed concerns about noise, vibrations, the storage of chemicals at the facility, the size of the building, the inclusion of public restrooms at the facility, a plan for a splash park at the location, and other issues. They asked for an independent study of the impact the facility would have, and said the facility would impact property values and constitute a health hazard.
Mr. Stoneback said there would be no vibrations and minimal noise. He said chemicals would be safely stored.
On Feb. 28, DAPR voted, 10-0, to give its final approval to the project.
While Mssrs. James and Mackey had an opportunity to provide their comments on Feb. 26 and 28, it was after City Council had already made a final decision on Feb. 12.
The Appellants’ Claims
In their appeal, the appellants raise numerous points. They argue that they were not given adequate notice and a chance to participate in the process and voice their concerns before decisions were made.
The City has argued that residents were given notice of the project in an email notice of a Fifth Ward meeting held on Jan. 18, and that the project was discussed at that meeting. While the email notice said one agenda item would be “Niles Morton Grove Water Pumping Station Proposals,” the notice did not say anything about the pumping station or give the address of the proposed facility.
The City has also argued that the project was discussed at the Feb. 7 DAPR meeting and the Feb. 12 City Council meeting. Appellants say that they were not given mailed notice of those meetings and were not given a meaningful opportunity to present their concerns. To bolster their argument that notice was not provided to residents, they point out that only one Fifth Ward resident appeared at those meetings.
Because DAPR and City Council expressly determined that adverse impacts of zoning noncompliance were minimized on neighboring properties, Appellants claim that neighboring property owners should have been given mailed notice and an opportunity to present their views about the impact on their properties.
Appellants also argue that the Municipal Use Exemption did not give City Council authority to approve the Water-pumping station, because the City will not be both the “owner and operator” of the water-pumping station. One portion of the Municipal Use Exemption, Sec. 6-7-4, provides “City Council may approve buildings and structures owned and operated by the City that do not comply with all of the requirements of the underlying district, if they are necessary for the provision of desired City services and if the adverse impact on surrounding properties resulting from such noncompliance is minimized.”
Inasmuch as MGNWC will own the water-pumping station, Appellants argue that the requirement that the City be both the owner and operator of the water-pumping station is not met, and that City Council lacked authority under the Municipal Use Exemption to approve it.
Appellants raise numerous other issues, and allege they have been deprived of due process, discriminated against, and are subject to impending loss of property values and potential health hazards.
In his March 22 letter to Appellants, Mr. Treto did not address the merits of the Appellants’ appeal, but told them that the final decision to grant a Municipal Use Exemption lies with City Council, and that the Zoning Board of Appeals is “unable to hear an appeal for a City Council decision where the deciding body is the City Council.” He also said, “The Zoning Board of Appeals does not have jurisdiction to review a recommendation of DAPR,” and that the City Code does not provide a means to appeal a City Council decision by a party that is not part of the original zoning application for a municipal use exemption.
“As the Zoning Board of Appeals lacks jurisdiction to hear your appeal, we cannot accept your appeal,” Mr. Treto told Appellants. He returned the filing fee to them.
The RoundTable asked Mr. Treto in an email what provision in the Zoning Code authorized the City’s Legal Department to dismiss the appeal, and whether the proper course would be to have the ZBA determine whether it had jurisdiction to review any Zoning Administrator decisions and City Council to determine whether it had jurisdiction to review any DAPR decisions. Mr. Treto did not cite any Zoning Code provisions, but said municipal law departments are tasked with interpreting their respective city codes and address issues related to application and jurisdiction.
Mr. James told the RoundTable in a prepared statement, “The West End Area Pumping Station Impact Task Force knew its zoning appeal would be rejected by the City of Evanston when we submitted it.” In strong terms, he said the City broke numerous rules and regulations and “What is most damning is the fact that elected officials chose not to listen to the will of the ‘People’ who elected them. In Evanston it has become clear that Democracy has been tossed aside for a Ruling Class.”