The Carbondale Observer

News and commentary about Carbondale, Illinois and SIUC

My Thoughts on the Proposed Changes to the Neighborhood Business District

with 28 comments

A furor has erupted during the last few weeks over proposed changes to the Neighborhood Business (NB) District in our zoning code. I have received several requests for comment in my email, so I’ll add my voice to the discussion. I’ll start with a brief summary of what is being proposed, followed by a lengthy explanation and discussion of the disputes as I understand them. At the end, I’ll explain my own position on this amendment.

First the explanation. Our zoning code as currently written contains a Neighborhood Business (NB) District. Click here to see the code as currently written. Currently, there are no properties zoned NB. There is a proposal working its way through the process that would change the NB district in a few ways. Click here (pdf) to view the proposed text as amended (additions to the current code are underlined, while text being removed has a line drawn through it).

First, the rewrite would remove all permitted uses. No use would be permitted by right in an NB district. This is important to note. Instead of permitted uses, the rewritten NB district would allow certain businesses as special uses. The perceived benefit of this system is that it allows more oversight. The process for getting a special use permit allows council and the planning commission to impose certain conditions on the operation of a business. Second, performance standards would be imposed for the special uses permitted in the NB district. Third, some of the requirements in the district (related to size and distance between districts) would change.

So far, so good, right? Unless you’re strictly opposed to any business in a neighborhood, then more oversight and additional performance standards would seem at first glance to be an improvement. Now we’ll turn to the concerns raised over this amendment. The dispute, as I understand it, lies in three areas, each of which I will explain. 

First, although the proposed revision lists several specific special uses that Council could approve, it also allows:

  1. “Other personal services as permitted with the issuance of a Special Use Permit”
  2. “Other repair services as permitted with the issuance of a Special Use Permit”
  3. “Other retail trade as permitted with the issuance of a Special Use Permit”

The first concern is that by including these “other” uses, Council could open the door to potentially inappropriate businesses. While we might welcome a small neighborhood coffee shop, bakery,  or corner grocery store, most of us wouldn’t want a gas station to set up shop down the street.

The second concern revolves around the following five items:

  1. The removal of the maximum size limit in an NB district (formerly one-half acre, which is 21,780 square feet).
  2. The removal of the minimum distance between NB districts (formerly one-half mile).
  3. The establishment of a maximum lot size of 15,000 square feet for new construction (3 standard lots in an R-1-5 district, or slightly less than two standard lots in an R-1-8 district, or exactly one lot in an R-1-15 district).
  4. The substitution of “shall” with “should” in paragraphs J, K, and L of the proposed amendment.
  5. The discretion granted to Council in paragraphs M, N, O, and P of the proposed amendment.

My understanding of the second concern is that items (1) and (2) above could result in large NB districts running the entire length of major thoroughfares (think Oakland Avenue or Wall Street), that item (3) above could result in businesses of an inappropriate scale for a neighborhood, and that items (4) and (5) could result in loose or nonexistent performance standards for any property zoned NB.

The third concern is that these changes are the result of a “backroom deal” or that the changes are being “rammed through.” This concern is really the one that drives people’s anger and fear. People can tolerate policy outcomes that do not reflect their preferences, but they rightly bristle at the thought that some powerful interest is getting a sweetheart deal. Let’s take a closer look at that concern, beginning with what has been called a “backroom deal.”

We can learn from  a WSIU Radio Morning Conversation with Mayor Joel Fritzler (click here to listen) that a major mixed use development is being planned for the downtown, but that one property owner is not cooperating with the developer. And we can learn from a post on Council Member Jane Adams’ blog that the proposed changes to the NB district are, according to City Manager Kevin Baity, “a means to address this specific property owner’s demands.”

Put the two together and it looks like some horse trading is going on behind the scenes as part of an attempt to facilitate a major development downtown. At a minimum, there are two ways to look at that. One way is to see a crooked backroom deal. Another is to see the standard wheeling and dealing that is an ugly and unfortunate — but necessary — part of our democratic system. Either explanation is plausible; we won’t know which is closer to the truth until and unless we have more information.

The second part of the third concern is that the change is being “rammed through.” That implies that regular process is not being followed. As far as I can tell, that claim lacks merit. This change went before the Planning Commission, which held a public hearing on the change. That hearing was publicized both by the normal process the city follows and in a post on Council Member Jane Adams’ blog. In fact, I attended the public hearing and asked a question about the proposed change.

Now, two weeks later, the proposed change is going to be debated and voted upon in a public meeting of the Carbondale City Council. During the last few weeks, there has been speculation about and discussion of the amendment. People will again get a chance to speak their minds on this proposed change. The upcoming meeting has received even greater publicity than the public hearing at the Planning Commission.

It’s possible that there is some aspect of regular order which I am not familiar with and which has not been followed here. But based on my understanding of our process, there has not been anything unusual about the way this amendment has proceeded. It may be moving quickly, but it appears to me that regular order is being followed. If any reader believes I’m wrong about that, please feel free to spell out my mistake in the comments.

I’ve addressed the claim that the proposed change is being “rammed through.” I’ll leave it to each reader to judge whether this is a corrupt backroom deal or the admittedly ugly, but standard, horse trading that is always a part of the legislative process. I still need to address the first and second concerns listed above.

I think concerns over the possibility that the amendment as currently written is too porous and might allow incompatible uses is a legitimate concern. Likewise, I respect people’s concerns about sprawling business districts taking over our thoroughfares and producing over-sized business developments that do not fit in with surrounding residential areas. These concerns are real and deserve our consideration.

My position is that the process ought to slow down until we can be sure we are getting a good amendment that permits businesses that improve neighborhoods while prohibiting businesses that do not harmonize with residential areas.  Perhaps we might specifically prohibit certain uses, or we might simply remove the language allowing “other” uses and instead amend the ordinance to add specific uses as needed.

Furthermore, I think our code should regulate the form and intensity of buildings within a Neighborhood Business District to ensure that the scale of any development respects the surrounding residential areas. The design standards that are being incorporated into the rewrite of our zoning code can provide guidance here. No one wants the thoroughfares in our residential areas to turn into auto-oriented business corridors similar to those on East Main Street.

Finally, I would also like to see performance standards in place that regulate businesses in an NB zone so we can protect the property rights of neighbors and the integrity of neighborhoods. We want to be sure that noise, odors, and auto traffic do not create a nuisance for our citizens. A neighborhood business district with appropriate regulation will enhance a neighborhood and increase property values, but a poorly regulated district could do major damage.

I think the proposed amendment is a good start, but it needs tightening. Regular readers know that I have been a supporter of mixed use at the level of the city, the neighborhood, the block, and the building. I do not believe in the strict segregation and separation of uses into single-use zones. Monoculture should not be our goal. We benefit from diversity — of people, of housing types, and, yes, of land uses. But to be successful, mixed use needs good regulation. I think it’s worthwhile to take the time to get this right.

Comments are welcome.

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Written by The Carbondale Observer

March 19, 2013 at 6:05 am

28 Responses

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  1. Nicely written, thoughtful, and accurate. Most important, its substantive — this outlines the key issues very well. I’ll add this to my Facebook feed and connected to my Note as well.

    Scott McClurg

    March 19, 2013 at 7:00 am

  2. I’m not seeing a full refutation of Jane Adams’s concerns either in this post or in Scott McClurg’s, although maybe “refutation” is too adversarial a word to be fairly chosen. What I took to be a major area of concern for Adams is a concern I share, and it seems not to have been addressed here. Specifically, and I’m using her words and taking this assertion on faith…”The proposed NB District is completely non-compliant with the City’s Comprehensive Plan, adopted in 2010.” Her concern seems to be that once the new zoning ordinance is adopted, such a NB district would be quite difficult to develop because the Comprehensive Plan’s developers either did not envision it or else they specifically didn’t want any of it.

    I can’t really comment in depth on this concern since I’m not fully up to speed on the Comprehensive Plan or the proposed new ordinance. But I do recognize that IF Adams is correct, then it casts an ugly light upon our haste to amend the old ordinance and “do some business” just before replacing it with a better one which won’t allow that business to be done. Frankly, it could be construed as an end run around a coming, legitimate obstacle…with “midnighting” being the political tactic of choice.

    If it’s really the case that neighborhood business districts of some sort are a good idea, why are we not seeking to add them to the new ordinance as well? For that matter, why are they not discussed or recommended in the Comprehensive Plan, and why are so few people noticing that? Is it possible that the Comprehensive Plan itself doesn’t have a real consensus? And if not…why are we paying scads of money to obtain a new zoning ordinance based upon that plan?

    You have remarked on ” the standard wheeling and dealing that is an ugly and unfortunate — but necessary — part of our democratic system.” Allow me simply to observe that while I can countenance a certain amount of horse trading in most systems, you are describing something here that doesn’t deserve to be described as “democratic” in any degree at all, and that isn’t why I take the trouble to vote in elections or to run for office myself.

    If only we could all get on the same page SOMETIME…about ANYTHING…maybe we could have an epiphany about how things that are “ugly” and “unfortunate” might not be so “necessary.”

    John Holt

    March 19, 2013 at 9:20 am

    • John Holt, thanks for another thoughtful comment. I want to clear up a couple of things.

      My post wasn’t intended as a refutation of Council Member Adams’ blogs, flyer, or position. I only intended to add my own views to the public discussion. I think Adams raises some legitimate concerns that ought to be addressed, even if I don’t agree with every point she makes.

      On the Neighborhood Business Districts and the new zoning ordinance, my understanding is that the amended NB district will also be included in the updated zoning ordinance that the city has been working on. I could be wrong on that, but I don’t think so. I believe that part of the perception that the NB revisions are being “rammed through” results from the fact that these revisions are being advanced ahead of the full revision.

      On the Comprehensive Plan, I have read the entire plan once and I’ve taken a closer look at a couple of sections, but I am also not an expert on the plan and can’t comment on what is or isn’t in it. But I do want to make two points related to the plan.

      First, I don’t think we can really say that the upcoming zoning revision is based on the Comprehensive Plan. In fact, one of the primary objections to the upcoming revision, which if I’m not mistaken has been made by Council Member Adams herself, is that the zoning revisions do not stick with the vision of the plan. I think what happened is that we budgeted less money than was necessary to get a new zoning code (which we really should have), so instead we got an update of our existing code.

      Second, I like and agree with much of the Comprehensive Plan. But I still think we ought to be open to new ideas, even if they aren’t in the plan. We can’t say “Oh, well, no one brought this up when we wrote the plan back in 2009 and 2010, so we can’t do it.” A comprehensive plan ought to be flexible enough to accommodate new ideas when they come up, and a comprehensive plan ought to be reviewed and updated at least once every five years.

      One point that may be worth considering: the comprehensive plan does call for restoration of certain areas of town. Some of those areas are traditional neighborhoods that have historically been home to businesses serving the residents of those neighborhoods. Even if mixed use was not explicitly spelled out in the plan, calling for restoration of neighborhoods in which mixed use has traditionally existed implies that it will play a role in the future.

      On whether we have a “backroom deal” and, if so, whether that is democratic, that’s a matter that different people might view differently. I recall back in 2009 and 2010 when President Obama (who I enthusiastically support) was trying to pass the Affordable Care Act, now known as Obamacare. He needed the vote of Ben Nelson, a conservative Democratic Senator from Nebraska. Nelson had a set of demands and he insisted they be met in return for his vote. That was derided by the opposition Republicans as a “backroom deal” and was dubbed the “Cornhusker Kickback,” but it secured Nelson’s vote and the Affordable Care Act is now law.

      I am also reminded of the efforts to pass Medicare Part D (the prescription drug benefit) during the George W. Bush years. Republicans in the House were threatening revolt and some promises had to be made in order to approve the law (including support for one Congressman’s son in an upcoming election). The opposition, Democrats this time, screamed that backroom deals had been made, but the legislation passed and we now have a prescription drug benefit as part of Medicare.

      My point is that horse trading is always part of politics. It’s an ugly part, which is why it so frequently takes place out of the spotlight. Whether or not it constitutes a backroom deal seems to depend on whether a person is on the winning or losing side.

      Now in this instance, we have a city administration wheeling and dealing with a landowner in order to facilitate a development that is seen by some as a positive addition to the downtown. Like the recalcitrant politicians in the two above examples, the property owner has some demands.

      Maybe the city will decide to meet those demands. Maybe the city will decide to invoke eminent domain and seize the property. Maybe the city will do nothing and the development will fall apart. It remains to be seen, but whatever decision is made will be made by our elected representatives, which is what we elect them to do. The public has had the opportunity to lobby and weigh in, and there will be another opportunity at tonight’s council meeting. If my preferred outcome is reached, we’ll slow down a bit and there will be further opportunities for comment and participation. That strikes me as a democratic outcome.

      Thanks again for the comment!

      The Carbondale Observer

      March 19, 2013 at 12:55 pm

  3. We are in substantial agreement on the issues that Council (and the public) need to consider in crafting code that permits businesses to be established in residential neighborhoods.

    If a separate zoning district is the best means to allow businesses to be established in residential neighborhoods (and I’m not sure it is), there must be legally binding language that requires neighborhood approval for any business development in their neighborhood. The character of different neighborhoods differs – what is appropriate for the Northwest Neighborhood is not necessarily appropriate for Deer Lake. But without clear language that allows neighbors to stop a proposed development, the courts have the power to overturn Council’s denial of a special use — especially if it’s been allowed in another neighborhood. I am not a lawyer, but the power of residential neighbors to deny rezoning and special use permits must be airtight in a court of law.

    However, the procedural claims made by Professor McClurg in his post, that the amendments were not being “rammed through” and that they were not part of a “back room deal,” are mistaken:

    Regarding the question of whether or not the amendment was being “rammed through” –

    (A) The discussions in our closed meeting showed a narrow majority favored moving the amendment through the process immediately, so as to be able to take the necessary steps to rezone and permit the Oakland Auto Repair property before May 1. Some urged holding special Council meetings, if necessary. Haste was the order of the day.

    While the minimum legal notifications were given, the public had the right to expect that any major revision of our zoning ordinance would be available as part of the overall revision of the zoning code that is posted on the City website, along with Don Monty’s careful and detailed itemization of the changes in the revised code. Even someone very concerned with the revisions would not have known about the proposed revisions unless they had happened to read the small legal notice posted once in the Southern Illinoisan’s legal notices section. The amendment was not publicly available except by going to City Hall and getting a copy.

    The only substantive public notice was my blog, which as Mayor Fritzler has pointed out, has no official status.

    (B) The issue of opening all our residential neighborhoods to business development was not part of the public discussions of the zoning code revisions.

    — It was brought forward separately from the overall zoning revisions and it appeared out of the blue:
    The desire for such an expansion of the district had not, to my recollection, been discussed at all at the Planning Commission hearings (expansion of home occupations had been discussed at some length, initiated, I believe, by Councilman Lance Jack).

    — There is not one mention in the Comprehensive Plan advocating or supporting mixed use in residential neighborhoods.

    — The consultants hired to revise our zoning ordinance eliminated the NB district as legally risky.
    I gather staff had been toying with the district as a possible zone for the Armory and old high school developments, but I have heard nothing specific in Planning Commission hearings.

    The process was a “back room deal” –

    It was developed in violation of the Open Meetings Act which forbids discussion of anything but a very few issues, and changes to our ordinances is not one of them.

    Had the process worked as proposed in the discussion among Council members in our closed meeting it would have slid through the Planning Commission (as it did) and gone through Council with some ineffectual debate by Don Monty (who has written a 6-page memo laying out his concerns) and myself. (Note that, in your response to your question regarding the language allowing a gas station to be established, staff misinformed the Planning Commission about what the amendment would allow. Note also that the discussion was not managed in such a way as to draw out a careful discussion of the proposal.) Had the deal gone as planned, the public would not have been aware of this major change in our code.

    It only became publicly debated because I sent out that “cynical” mailer. That label was a cheap shot by Scott McClurg: When argumentation doesn’t work, impugn the motives of the messenger. Note that McClurg made no substantive defense of the ordinance. It was entirely procedural, addressing the minimum legal requirements for public notification.

    Further, the process through which the amendment came to the Planning Commission violated Carbondale’s City Code. The code allows amendments to our zoning ordinance only by persons with a proprietary interest requesting City staff to make a change, or by the Planning Commission itself. This change was initiated by staff.

    I’m delighted that my mailer has generated the kind of discussion that is necessary to write good law. But that was not the plan hatched in the back room of Carbondale’s City Hall.

    Jane Adams

    March 19, 2013 at 10:44 am

    • I’m sorry I have to correct you again, Councilwoman Adams, but I explicitly did not question your motives. To quote, “Quite frankly, I cannot speak to her motives. But I suspect that when politicians — which Councilwoman Adam’s no doubt is — think their point of view is going to lose, they attack their opponents rather than their ideas.” In fact, I think you’re motives as you’ve explained them are just fine; I appreciate your concern for the community. But if you think my note was a cheap shot, please explain how (badly) photoshopping the Mayor’s name on a fictional gas station isn’t cynical and isn’t design to “impugn the motives” of everyone who doesn’t happen to agree with your point of view.

      And to clarify, I made no substantive defense of the proposal for two reasons. First, I have already done so in my capacity as Commissioner. Second, having done so, I’ve had my say and I’ll happy to now let others form their opinion. Toward that end, I’ve linked to every piece of information I have. If people don’t like the proposal, so be it. But your flier implied that my fellow Commissioners and myself were someone either duped or corrupted as part of this process. That’s not true and its a terrible reason to vote for or against something in our Planning Code.

      Two other quick notes,

      1. Councilwoman Adams is correct that the Staff did not have standing to bring the proposal. I didn’t realize this at our last Wednesday (and still haven’t confirmed it, but I think its correct). I expect that either the City Attorney or the Council will note that this should invalidate the process used up until this point. I’m still learning the job and I made this mistake.

      2. I don’t necessarily see this as part and parcel of the auto garage on Oakland. I certainly understand the logic behind that and see the argument as legitimate. However, if that permit was issued illegally (as I’ve seen implied), then I would to know what the Council hasn’t done something about that. Has any Council member even brought the matter up for a vote? (This is an honest question, I really don’t know the answer.)

      Scott McClurg

      March 19, 2013 at 11:48 am

    • Jane, thanks for the substantive comment, and for your work in facilitating a public discussion of these issues. I want to comment on a couple of the points you raise.

      You mention that a separate zoning designation may not be the best way to accommodate appropriate businesses in residential neighborhoods, and you point out that what works in the Northwest might not work in Deer Lake. I agree on both points.

      A form based code, which I’ve advocated before (I’ll link to the SmartCode, a model form based code, at the end of this comment) focuses less on use and more on the form and intensity of development. Of course, form based codes are not without their critics, and adopting one would be a major departure from our current Euclidean code. We might also consider performance based or incentive based coding, but those would also be a major departure.

      Since we seem likely to stick with our current Euclidean code, the next best option might be requiring a separate zoning designation. That would add yet another layer of protection for neighbors and neighborhoods. If, instead, we simply added the special uses included in the proposed NB district (or whatever other uses people agree on) as special uses in the residential districts, we would only need a public hearing before the planning commission and action by the city council in order to approve a business development. If we use a separate district, there would first have to be a rezoning, which has its own process, and then we would have to go through the special use process.

      On different standards for different neighborhoods, I’m in total agreement. In the past I’ve observed that we really have two Carbondales: Traditional Carbondale and Suburban Carbondale (if we were feeling less charitable, we might call the latter “Sprawl Carbondale”). You can see the difference between the two on a map.

      Traditional Carbondale, bounded by Oakland, Mill, Wall, Owens (on the Northwest), and East Knight (on the Northeast), was built before zoning and has historically contained businesses. It has streets roughly, though imperfectly, aligned to a grid. It has smaller setbacks, alleys, and narrower streets. These are our traditional neighborhoods.

      Suburban Carbondale, which surrounds Traditional Carbondale, was built mostly after World War II. It has all the markers of suburbia: curvilinear streets, strict separation of uses, houses set farther from the street, no alleys, etc. I think it’s reasonable to create a set of rules that allows each development pattern to flourish in its own way, and I’m open to different ways to do that.

      I’ve proposed the creation of a Traditional Neighborhood District to accommodate our older neighborhoods, but that’s not the only solution. Another option would be simply to allow finer grained zoning within our existing Euclidean code. I’m sure there are other approaches that would work.

      One other point: I’m not an expert on this, but I’d be very careful about how we proceed with attempts to allow neighbors to stop a proposed development. If we’re talking about the codification of early notification to neighbors and neighborhoods, then I think that’s a great idea and we ought to do it. If we’re talking about holding some kind of vote or binding petition process, I’d be against it.

      Fair government requires fair processes that are clear and predictable, and that treat everyone equally. An election doesn’t meet that standard. When I go into the voting booth, I can vote for or against a person or a ballot measure for any reason or for no reason. It can be completely arbitrary. In a situation where neighbors get a veto over how another person uses his or her property, we could have uses being denied just because neighbors don’t like the person. That isn’t fair.

      That’s why I favor form based regulations and performance regulations. Either a proposed development meets them or it does not. With early notification, neighbors can work with developers to achieve win-win outcomes or they can organize to lobby council members and educate them on why a particular development does not meet the standards set.

      A final thought: you mention at the end of your comment that our code does not permit staff to initiate a zoning amendment. If that’s so, then the correct process wasn’t followed, and we’ll have to start over. That’s fair. We should follow our own rules. For the future, we might ask whether, in our council-manager system (which places a high value on our professional staff) we ought to allow staff to initiate such changes. Or we might start questioning the value of the council-manager system, which I and others have done in the past.

      Here’s that link to the SmartCode: http://www.smartcodecentral.org/

      Here is a bonus link to the City of Philadelphia’s Zoning Code Commission, which explains the various types of zoning: http://zoningmatters.org/facts/trends

      Thanks again for the comment!

      The Carbondale Observer

      March 19, 2013 at 1:28 pm

  4. Very well done, thanks for this invaluable service to Carbondale. Regarding the slum lord whose name we shall not speak: Federal labor laws are written so they more tightly regulate larger employers. Is there legal precedent for holding rental property owners to higher standards based on the size of their holdings in a city? And perhaps even limiting the size of an individual’s holdings of rental property in the city or taxing them based on the size of their holdings? Big cities seem to find ways of moving intransigent property owners out of the way when redevelopment is needed.

    Steve Gough

    March 19, 2013 at 10:49 am

    • Steve Gough, thanks for the kind words! On the rental property owners being held to higher standards, my understanding is that in some cities landlords and rental properties have to be licensed. If you violate code too many times, you can lose your license for a specific property or you can lose your license to rent property at all. I know some people on our council are interested in that idea, and I think it is an idea we should explore.

      On getting intransigent property owners out of the way, one option is using eminent domain, but that carries high political risks and high potential costs. It can also be a long process that has to play out in the courts. And, most importantly, there are real concerns about taking private property from one person to put it to private use by another. It’s one thing to invoke eminent domain when we need private property for a legitimate public purpose, but in this instance I’d consider that a bad outcome.

      Maybe there are other options. We certainly ought to look for them.

      Thanks again for the comment!

      The Carbondale Observer

      March 19, 2013 at 1:35 pm

  5. The lengthy 10:44 comment was by myself, Jane Adams.

    I just learned that

    I just learned that Planning Commission member Tom Grant’s specific recommendation at the Planning Commission hearing to include neighborhood notification was not included in the draft ordinance that Council is to consider. This is an important omission.

    Jane Adams

    March 19, 2013 at 11:04 am

  6. Scott, the photoshopped gas station was a political cartoon — no matter where you stand on this issue, I don’t find it “cynical,” but illustrative. We have a great tradition of lampooning power in this way and I think it was quite appropriate. Plus it made me laugh.

    Steve Gough

    March 19, 2013 at 12:11 pm

    • And you are welcome to your reaction, of course!

      Scott McClurg

      March 19, 2013 at 12:54 pm

      • Its difficult to know where to start with Commissioner Scott McClurg. But lets start with the fact that he was part of Mayor Joel Fritzler’s campaign team and that he was appointed to the Planning Commission (not the Planning and Zoning Commission) by Mayor Fritzler.

        How is it possible that McClurg does not know the history of the debacle on Oakland? Kevin Baity issued a special use permit on his own while serving as asst City Manager and Director of neighborhood Services. The permit had been sought by Lindsey Fisher and had been refused issuance by city staff. The City Manager at that time, Alan Gill, ordered Baity to rescind the certificate as it had been issued illegally, without public input and without the normal process. Baity was opposed by Jane Adams as the new City Manager because of this outlandish behavior. And yes, Council members have monitored the situation every since both in public as well as in private meetings with the Mayor and the City Manager. But, the illegal use continues after a year and a half.

        The facts of the issuance of the illegal permit are not “implied”, they are explicitly on the record.

        And also for the record I am married to the Councilwoman and her name is Adams not Adam’s. As to her being a “politician” you should note that she is also a Full Professor, unlike you.

        D Gorton

        March 19, 2013 at 1:56 pm

        • Dee — Your attempt to disparage my reputation does you a great disservice. I’m not sure why the fact that I worked on the Mayor’s campaign (and Shelia Simon’s before that) is relevant since I was speaking specifically to my knowledge as a Planning Commissioner. I’ve seen the Mayor in person or spoken to him on the phone *maybe* ten times since he was elected. Guilt by association is a lame argument in my experience. So whatever you may think or opine, my reaction to the flyer is really based on direct experience and nothing else.

          How is it possible that I don’t know about this history of the Oakland garage? Not that its your business how I spend my time, but my my wife’s chronic health problems, working full time, and having a young child absorb most of my energy. That’s especially true over the last three years or so; I’ve missed a few things. I did not pay a lot of attention to local policy matters until I was appointed to the Commission. When asked to serve the community, I did so and adjusted my time and attention accordingly.

          As to how I should address the Councilwomen, I’ve been respectful (as should we all). And I don’t think its relevant that I haven’t called her Professor or Doctor because I am not interacting with her in the role of Emeritus Professor, but as a member of the City Council. And if I’ve stuck a extra apostrophe in from time to time, I’ll beg your forgiveness as my ability to spell and recognize those details is an unfortunate side effect of my bout with brain cancer.

          But more than anything, you seem to miss the point (as did the flyer). I think all of this is important. I believe more voices and information is valuable to the citizens. I can live with any of the potential outcomes from this issue, as long as people aren’t being mislead, misinformed, and scared into anything other than thought deliberation. I objected to the flyer and its a-contextualization and half-hearted accusations (I respectfully disagree with Steve Gough here). Nothing more, nothing less. Yet here you are trying to call my credibility into question rather than making substantive points. You’re free to do that, of course, but I don’t think it helps your cause.

          Scott McClurg

          March 19, 2013 at 3:28 pm

  7. Scott, its important for people to know that you are a political colleague of the Mayor and inclined to defend him. As to the other issues that you face, I have nothing but sympathy and hope that they improve.

    D Gorton

    March 19, 2013 at 3:43 pm

  8. I can see why you say that, but the truth is I’ve never spoken to him about this. I don’t know what his opinion and therefore what to defend!

    Scott McClurg

    March 19, 2013 at 3:55 pm

  9. Navreet Kang asked the Mayor why the zoning laws had not been enforced against a auto repair garage which had not be conforming for more than 18 months. The Mayor had not response. Then when Jane Adams moves to amend the proposed ordinance to prohibit automobile repair in a Neighborhood Business District, that goes down to defeat 3 to 4. Whether you want to call it a “back room deal” or good old-fashioned horse trading, the people in this particular neighborhood are being asked to pay the price for that “horse trading.” They should not be required to hire an attorney like myself to get the City to enforce its own zoning laws. It begs the question of whether part of the “trade” is that the City will not enforce its zoning laws as to this particular landowner. Bravo to Jane Adams for standing up to this process.

    darrell dunham

    March 20, 2013 at 12:05 pm

  10. I plan to ask about the non-conforming property at this evening’s Planning Commission meeting. That said, why do you assume the two things are linked? It was made explicitly clear that if the NB Zone had passed, that they would still be non-conforming and would still have to go through the same permit process. Correlation does not establish causation. As I said before, at least from my perspective, I didn’t know about the non-conforming property when I voted for the NB changes; I’m also fairly certain that I’d still vote for it even after knowing.

    Scott McClurg

    March 20, 2013 at 2:12 pm

  11. Scott, I wonder if the issue of the NB is legally on your Planning Commission public hearing since it has not been advertised nor was it in your initial packet. Perhaps someone has contacted the City Attorney about this concern. It may be that is considered a “continuation” of you deliberations and can be discussed.

    In the event I don’t recall a single citizen either before the Planning Commission or before City Council who has spoken in favor of this initiative. There have been quite a few who have spoken against it, as you know.

    I also note that you asked the Chair to delay the consideration of the NB since there had not been sufficient time to study the implications. The City Council agreed with that determination and it was sent back to “staff and the Planning Commission” for further refinement. I hope that you will again urge the Commission to take more time to consider this initiative so that it can be integrated into the larger code revision that is under consideration.

    hope you are feeling well.

    Best

    D Gorton

    March 20, 2013 at 4:05 pm

  12. Actually Dee, I wondered the same thing. We receive our packets well before the Council Meeting and I haven’t seen Councilman Monty’s alternative motion, which I assume is what was sent “back” to the Commission. I don’t have an answer and won’t until the meeting.

    Scott McClurg

    March 20, 2013 at 4:22 pm

  13. Scott, my hat is off to you after watching last night’s Planning Commission meeting. It was your idea that finally broke the logjam on the NB and the proposed code revisions. Frankly, its an approach that no one had thought of before: simply wipe out the language and place it in the code as a blank sheet….revise it later if its needed. It was so innovative that there was not even a second to your suggestion…and then after much discussion it dawned on the Commission members that your idea was by far the best approach. Congrats.

    Altogether the defeat of the proposed business district by a Council vote of 4 to 3 was a major set back for “business as usual” in Carbondale. By sending the code back to the Commission the Council ran out the clock on the lame ducks, Wissmann and McDaniels, who were pushing the measure through. That was not the game plan that Fritzler put together. The losers, Fritzler, McDaniels and Wissmann put on an astonishing display of vitriol, but the reality is that they had been defeated and that’s good for our town.

    One Council hero of the evening was the quiet spoken Lee Fronabarger http://tinyurl.com/c73827x who steadfastly stood by Councilwoman Adams as she doggedly offered amendment after amendment. Fronabarger is one of the best Council members, along with the studious Don Monty, to have come along in a long time. Monty, Fronabarger and Adams were surprisingly joined by Lance Jack in the crucial vote that defeated the backroom deal sponsored by Fritzler and Baity and pushed by Wissmann and McDaniels.. I’ll have to admit it wasn’t the prettiest of fights, especially the bile ridden Wissmann’s attacks, but it was a victory nonetheless.

    It was also gratifying to see candidates for the City Council in this years election stand up for neighborhoods. Brent Ritzel http://tinyurl.com/cbpxqys, Navreet Kang http://navreetkangforcitycouncil.com/, and Jessica Bradshaw http://tinyurl.com/clhdt29 spoke out against the attempt to ram through the NB district. They are all worthy of serving on the Council.

    So, good work last night Scott, and good work altogether by the Citizens of Carbondale and the writer of this blog. You’ve done great service, and I appreciate it.

    D Gorton

    March 21, 2013 at 9:31 am

  14. To my colleague on the Planning Commission, Scott McClurg, I wanted to point out that it is a fact that the permit for the Auto Repair Shop on the corner of W. Sycamore and N Oakand was issued illegally by the acting city manager, and Director of Development Services, and subsequently was rescinded by him upon action by the City Council. It is also a fact that the Council has not done a thing to enforce illegal occupation of this warehouse for over a year and a half later (Formal action to rescind was taken by the Council on November 18, 2011), and when I did ask the Mayor at their last city council meeting of March 19, 2013 as to why that action had not been enforced, the Mayor had no answer, and he only answer (if yo want to call it an answer) was that “they”are trying to help “him” find a place t relocate, to which I had countered that there were at least two locations available for over a year in Carbondale, namely Johny B Lube and I believe the second one is on E. Main Street across from Pizza Hut. The Mayor was ready to move on, without answering me at that point. Here are just a few facts to consider, why it was a back room deal, to include this shop as part of the downtown development and the W Monroe Special Use Oermit by Home Rentals.

    Also, it is to be known that the Mayor had just issued a Press Release, claiming that He had requested the Illinois Attorney General’s office voluntarily to investigate the “back room deal”, while the fact is that I am the one who on March 18, 2013 had written to the Attorney General’s office to commence an investigation. I have also followed up with my own Press Release to counter the inaccurate claims by the Mayor.

    I will be posting a copy of both my letter to the Attorney General’s office and both Press Releases by the Mayor and myself, so everybody reading gets the REAL FACTS.

    Navreet Kang

    April 3, 2013 at 5:18 am

    • Navreet Kang – Thanks for the comment! I was watching the council meeting where you asked the Mayor why the Oakland Auto Shop hadn’t been relocated. I can give you a little more explanation than you got at the meeting.

      The main issue with relocating the shop is that the city is liable for the costs imposed on the business owner. Once the zoning certificate was erroneously approved, the business owner started spending money to make improvements to the property. If the city decides to force the business to relocate, the city has to reimburse the business owner for all those costs. It doesn’t matter whether the zoning certificate was issued as a result of a misunderstanding, a mistake, or willful violation of the law. The city still has to “make the business owner whole.” My understanding is that the business owner invested a substantial sum in the building, and the city would be on the hook for all of that.

      A second issue is that the other buildings you mention, like the former Johnny B. Pro Lube, are not as large as the one at Oakland and Sycamore and thus may not suit the business owner’s needs. A third issue is the price of rent or the purchase price for these buildings. If the rent is higher than the rent at the building on Oakland, that might affect the viability of the business.

      The fourth issue is that the zoning on the building at Oakland and Sycamore — R-1 (single family residential) — is a joke and might not be defensible in court. That building was built before the 1974 zoning ordinance. To zone an existing commercial building for single family occupancy, when that building is clearly not suitable for single family use, seems to me to border on an unconstitutional taking of property. There is a question of justice here.

      My own position is this: I wish the Oakland Auto Shop had never been issued a zoning certificate. Even though I strongly believe that certain types of businesses should be permitted in a residential neighborhood, I think a strong case can be made that an auto shop is not the type of business that integrates well in a residential area. I would have preferred a small corner grocery, or a neighborhood cafe or coffee shop, or even a neighborhood tavern, provided adequate performance standards could be enforced. But since the city screwed up and issued the zoning certificate, and since forcing the business owner to move will be expensive and arguably unjust, I support legalizing the auto shop for the existing owner only, and the imposition of performance standards to protect neighbors in the immediate vicinity. To me, that seems like the best solution.

      To avoid such problems in the future, we should be sure our zoning allows adaptive reuse of older buildings, including some common sense commercial uses, even in residential areas. I hope the council will take steps to make that happen.

      Thanks for your comment!

      • Thank you for your thoughts. I am quite aware of the implications of moving the Repair Shop to another location, and am of the thought that Mr. Kevin Baity was confirmed as our next city manager by a 4-3 split vote, knowing fully well that he had knowingly screwed up as the acting city manager. He should be one held accountable personally for any expense that the city may have been exposed to, due to his intentional, illegal act in the first place. He blatantly ignored Chris Wallace’s telling him that issuing such a permit was not permitted.

        I also do not have any problem with giving a legal status (non-conforming) to this shop in question, but what I will be afraid if is setting a bad precedent. In the future, other such undesirable businesses will be able to successfully sue the city and use this bad precedent as an example, as to why they too should be permitted wherever they so choose. Besides, now that there is a lawsuit filed by one of the neighbors to this shop will cost the City a ton of money, not only to defend the suit, but in case, we lose, pay an exorbitant settlement. It seems to be a can of worms that should never have been opened by Kevin Baity.

        Second point is that even if the City wanted to give the Shop a legal status, it is important to abide by the Open Meetings Act, and not discuss behind closed doors as to HOW they are going to go about getting it done (like changing the code) and hurry it through their “lame duck” council, as they did last night, inspite of the Planning Commission’s recommendation to pause and think, and then carefully craft the Neighborhood Business District.

        Navreet Kang

        April 4, 2013 at 12:20 am

        • Navreet Kang – You raise the one good argument I’ve heard for why the auto shop should not be legalized. People have argued that once we allow an auto shop in one area, even as a special use, we’d have to allow other auto shops in residential areas or risk a lawsuit that the city might not win. I don’t know enough about the case law to determine if that’s true, but if it is, that would be a good counter-argument to legalizing the shop.

          I don’t think it is much of a risk in Carbondale’s case, however, because we have a limited number of existing buildings that would be candidates for use as an auto shop. Of course, there is still new construction to consider, but it seems to me that if someone wanted to build a new building to house an auto shop, they wouldn’t likely choose to attempt to build the shop in a residential neighborhood.

          Then, of course, there is the fact that we have had an auto shop in a residential area for years and years. Auto Tech, on the corner of Willow and Carico, has housing to the east, west, and south of it. A lumber yard is immediately to the north of Auto Tech, but a single-family home is on the opposite corner northwest of the shop. The existence of Auto Tech hasn’t led to a proliferation of auto shops in residential areas.

          Of course, this is an area where reasonable people can disagree. I respect your opinion and your right to it, and I appreciate that you have been respectful of others opinions. That’s what we need in Carbondale.

          Thanks for the comment!

  15. Here is the follow-up to my post above (pardon some typos):

    Mayor’s Press Release

    NEWS RELEASE
    CITY OF CARBONDALE, ILLINOIS
    MARCH 29, 2013
    ILLINOIS OPEN MEETINGS ACT REVIEW REQUESTED

    In light of recent references to an alleged violation of the Illinois Open Meetings Act, Mayor Joel Fritzler has submitted a request to the Illinois Attorney General, Lisa Madigan, to have minutes and/or recordings from the Carbondale City Council’s Closed Session on January 29, 2013 reviewed. “Our City Attorney has reviewed the recording but, to put any allegations to rest, the purpose of this request to the IAG is to ensure that proper procedures and protocol were observed and that the City Council complied with the Illinois Open Meetings Act.”, stated Mayor Fritzler.

    # # # #

    Joel Fritzler, Mayor

    City of Trees and Ph.D.s

    200 S. Illinois Avenue
    Carbondale, Illinois 62901

    email: jfritzler@ci.carbondale.il.us
    phone: 618-457-3229
    website: http://ci.carbondale.il.us
    ü Before you print this email or attachments, please consider the environment.

    And, now a copy of my Press Release in response to the above:

    NEWS RELEASE
    NAVREET KANG
    CARBONDALE CITY COUNCIL CANDIDATE
    MARCH 29, 2013
    ILLINOIS OPEN MEETINGS ACT
    REVIEW REQUESTED

    In light of the Press Release put out by Mayor Joel Fritzler of Carbondale on March 29, 2013, Navreet Kang, A Candidate for City Council wants to set the record straight that it was HE, who had submitted the request to the Acting Public Access Counselor (Acting PAC), Illinois Attorney General’s office on March 18, 2013 that prompted the Illinois Attorney General’s office to investigate if the Open Meetings Act had been violated, contrary what Mayor Fritzler claims to take credit that HE is the one making the “REQUEST” to the Illinois Attorney General’s office for a REVIEW of the meeting of January 29, 2013 to “put any allegations to rest” . In fact, the City of Carbondale has been demanded to turn over all minutes, and/or recordings of the closed session of the meeting in question. A copy of his letter to the Acting PAC appears below:

    “March 18, 2013

    Sarah Pratt
    Acting Public Access Counselor
    Office of the Attorney General
    500 S. 2nd Street
    Springfield, Illinois 62706
    Re: Request for Review if the actions of the public body in connection with a public meeting violated OMA. (5 ILCS 140/9.5(a); 5 ILCS 120/3.5(a))

    Dear Sarah:

    It has come to my knowledge that on January 29. 2013, during a closed session meeting of the Carbondale City Council, some issues were discussed which seem to be the violation of the Open Meetings Act of Illinois.

    I was told that the City Manager, Kevin Beatty, had discussed changing some ordinance about zoning for the Neighborhood Business District, to accommodate an earlier (about a year and half ago) illegally issued and subsequently rescinded special use permit to a certain entity, who is now in
    a) In litigation with the city over a denial of a special use permit for a different property
    b) Also, owns the property in question where the previous illegally issued permit (subsequently rescinded by the city manager, after the City Council ordered him to do so.
    c) Is also in the process of negotiating sale and or purchase of certain property for downtown development

    The discussion was led by the city manager, by stating that Mr. Henry Fisher owns these properties in question, and if we legalized these properties for their proposed use, the development on W. Monroe Street, and the currently illegally occupied Auto repair shop at the corner of W. Sycamore and N Oakland Avenue, Carbondale, IL., that Mr. Fisher will be willing to sell a particular parcel in downtown.

    How that could be achieved, he proceeded to tell the Council, is by making the to-be-proposed New Neighborhood Business District, a Special Use only for all proposed uses that might come up. At that point, some discussion ensued whereby Councilwoman, Jane Adams, said that because “we are discussing the change in zoning in a closed session, it could be in violation of the OMA.” Councilman, Donald Monty, agreed.

    I urge you to review these minutes and get to the bottom of it, if any rules were broken. Thank you.

    Sincerely,
    Navreet Kang
    613 S Terrace Dr
    Carbondale, IL 62901
    618-303-5264”

    Navreet Kang

    April 3, 2013 at 5:24 am

    • I’m thinking it might be helpful to review the history of the zoning of the building at Sycamore and Oakland, in order just to be sure we are all “petting the same dog.” My comments are not authoritative, and I offer them merely as recollection.

      In 1974 when the zoning ordinance was adopted, this building was owned either by Coca-Cola or by a local bottling company, and it was in use as a warehouse for bottled beverages. For this reason it was Spot Zoned as a commercial building. I believe the nature of the ordinance was that such spot zoning would “sundown” every five years unless the owner petitioned the City to renew the zoning classification.

      At some point the building was sold to other owners who were in the retail liquor business, who possibly thought they might also use it for the warehousing of beverages. Ultimately they decided they didn’t need the building, and they offered it for sale. Unfortunately, those owners had overlooked a zoning renewal date by some thirty days and the city declined to renew the zoning…so it reverted to R-1. This event occurred at a time (perhaps 20 years ago) when the city was given to “playing hardball” with many property owners over the code (even though we all knew it to have some egregious flaws.)

      It turned out eventually that Mr. Robinson was perhaps the ONLY buyer for the building, since he needed garage space for the fleet of limos that he was operating at that time and thus was able to use it for some actual purpose, and (due to the distress of the property over zoning) one hopes he was able to get a good deal on the purchase.

      Thus, the property has a long track record of being a sort of economic white elephant, having lost the only sort of zoning that made economic sense for the owners OR for the neighborhood, with the city having steadily refused for many years to permit any other uses of it.

      That is why I personally viewed the sudden (and not well-publicized) appearance of an auto repair shop there as strikingly odd, and assumed at the time that small-town politics were in play. I haven’t yet revised my opinion, since the city’s solicitousness over the current tenant’s economic well-being stand in sharp contrast to the city’s former indifference to the financial bath the former owners had to take.

      John Holt

      April 5, 2013 at 12:01 pm


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