Professional Documents
Culture Documents
NOW COME the Plaintiffs, NICOLE VIRGIL and DAN VIRGIL, through their attorney
MARK W. DANIEL of DANIEL LAW OFFICE, P.C., and respectfully state the following as
their complaint for administrative review of the February 24, 2017 final determination of the
Officer) which entered findings and a determination adverse to them and favorable to the CITY
INTRODUCTION
1. Plaintiffs ask this Court to reverse the decision of the Hearing Officer to compel
them to remove a membrane component of a garden behind their home because the membrane is
recreational equipment and/or akin to a tent that is allowed under the Zoning Ordinance. The
membrane is not governed by the Building Code. To the extent that the City purports to prohibit
the membrane in reliance on either the Building Code or any portion of the Building Code
Illinois Constitution.
2. Plaintiffs own 598 South Fairview, Elmhurst, DuPage County, Illinois (the
Subject Property).
3. Plaintiffs family developed large garden plots in their rear yard so they could
engage in recreational gardening. Between roughly late October 2015 and late March 2016 and
between late October 2016 and late February 2017, Plaintiffs placed a membrane over part of
their garden plots to extend the growing season and to preserve plantings beneath the soils.
and bands that hold a pliable membrane in place over the garden plots while being fully capable
of removal and re-installation. The membrane is not permanently affixed to the ground. Exhibit
5. On February 28, 2017, a Hearing Officer heard evidence and closed the hearing.
The Hearing Officer incorrectly found that Plaintiffs membrane violated Section 22.42(c)(2) of
the Zoning Ordinance (Exh. M at 1) (addressed in Count One), Section 3102 of the International
Building Code, as amended in Section 24.05, Section 2, Paragraph 46 of the Citys Building
Code (Chapter 24) (Exh. M at 7) (addressed in Count Two), and Section 22.90(e) of the Zoning
Ordinance (Exh. M at 4) (addressed in Count Three) On January 24, 2017, Hearing Officer
ordered the removal of the membrane based on the Section 22.42(c)(2) and Section 3102
violations but not the Section 22.90(e) violation, and set a February 28, 2017 compliance date. A
as Exhibit K in which he stated that he entered his Order, Preliminary Findings of Facts and
Decision on January 24, 2017 and stated that he would present his Final Determination with
the Hearing Officers February 9, 2017 communication was not ordinary for such hearing
processes, Plaintiffs requested that the Hearing Officer identify all ex parte communications
involving the case and he purports to have done so on February 10, 2017 when he identified the
a. A telephone call from the Village Prosecutors office to advise [him] that there
were two building code cases up on the 24th and to plan for an extended day;
were problems with handling minors cases, including truancy cases in a public
c. Email communication from the Citys prosecuting attorney on January 26, 2017
suggesting that staff and the Hearing Officer did not use the correct form of an
order and requesting the Hearing Officer to issue correspondence to the effect that
the Hearing Officer will supplement the January 24, 2017 decision;
d. Email communication to the prosecutor on January 26, 2017 stating that there was
e. Email communication from the City prosecutor on January 27, 2017 stating:
Thanks Jeffrey. We will get a new order done for the next date with all the
wording you should have going forward in the event that a party wants to appeal
this to the Circuit Court. Since this was not a final order as you stated then we
should be fine until the next date when you make it final.
whether the Hearing Officer sent out the letter suggested in Paragraph 7(c) above
in order that the City may more properly defend the appeal when answering and
informing the Hearing Officer that the prosecutor was working on getting a more
complete order for [the Hearing Officer] so that it will meet many of the finding
requirements but still leave space for any specific finding [the Hearing Officer]
Hearing Officers draft February 9, 2017 letter to Plaintiffs and from the City
8. At no time did the City prosecutor share these communications with counsel for
Plaintiffs and at no time did the prosecutor ever disclose that he was working on a new form of
an order that he would share with the Hearing Officer. Neither the City prosecutor nor the
Hearing Officer have disclosed the prosecutors or Hearing Officers role in preparing Exhibit
M.
9. On February 28, 2017, the Hearing Officer entered a final order attached hereto as
Exhibit M. The final order continued the finding that the membrane violated Section 22.42(c)(2)
of the Zoning Ordinance (see County One) and Section 3102 of the International Building Code,
as amended in Section 24.05, Section 2, Paragraph 46 of the Citys Building Code (Chapter 24)
(see Count Two). While the Hearing Officer added some detail to his findings under Section
22.42(c)(2) and Section 24.05, he also abandoned some of his findings announced on January 24,
The property at 598 S. Fairview is 62.5 feet wide by 141 feet deep and is located in the
R-2 Single Family Residential District which imposes a 30% maximum lot coverage.
Section 22.90(e) of the Elmhurst Zoning Code. The buildings on the property cover
approximately 2,600 square feet of the 8,812.5 total square feet and not including the
membrane structure is at the maximum 30% lot coverage. With the additional lot
coverage of the 360 square feet that the impermeable membrane structure covers the land,
the lot coverage is 33.6% and exceeds the maximum permissible lot coverage.
10. The Hearing Officer applied the Building Code to recreational equipment when
recreational equipment such as the membrane is neither a building nor a structure and tents are
exempt from the lone definition of membrane structure ever presented in the case.
11. The City authorizes and regulates the placement of recreational equipment in a
category that is broad enough to include membrane covers over gardens, trampolines, pool
covers, sport courts, pools, personal skate rinks, pitch backs, basketball standards, tents, archery
any area of the Subject Property that is not a required yard and, also, in the rear yard of the
13. Plaintiffs ask this Court to reverse the determinations of the Hearing Officer so
that they can continue to rely upon the membrane as recreational equipment as they have since
October 2015.
14. The Subject Property is a mid-block residential lot on the west side of Fairview
amid properties with trampolines that rise above the fence line and pools with membrane covers.
16. The Subject Property is 62.5x141 and lies in a large R-2 Single-Family
Residence zoning district. Section 22.90(e) imposes a 30% maximum lot coverage and the
Subject Property complies (buildings comprise roughly 2,600 square feet of 8,812.5 total square
feet, allowing for the deck which is typically not included in lot coverage).
17. Section 22.90(e)(1) imposes a 25-foot deep rear yard and five (5) foot wide
18. When Plaintiffs place the membrane over the garden, the Subject Property meets
the 30% lot coverage limit and yard requirements as well as the 40% rear yard cap on the area of
19. Plaintiffs garden for recreational purposes. The Plaintiffs property, including the
rear yard, contains rows of garden beds. Each year, starting with the colder months at the end of
the growing season, Plaintiffs place a temporary, membrane cover over part of their garden.
20. The membrane is roughly nine (9) feet tall at its arc, twelve (12) feet wide and
thirty (30) feet long. It is shorter and narrower than trampolines in the vicinity. It is also shorter
21. There is no activity inside the membrane other than the placement of rails to mark
an area that does not contain soil containing materials for the next growing season.
22. No storage (of tools, hoses, machinery or otherwise) occurs in the membrane.
days) until Spring arrives. Photos of the membrane are attached as Group Exhibit B.
25. The membrane over the garden is not a building inasmuch as it does not protect
animals, persons or property but, rather, serves only to maintain soil temperatures (Section
22.292 defines building as any structure built, used, designed, or intended for the support,
shelter, protection, or enclosure of persons, animals, chattels, or property of any kind, and which
26. Garden plantings do not become chattel or personal property until after they are
harvested. Agrinetics, Inc. v. Stob, 90 Ill. App. 3d 107, 109-10 (2d Dist. 1980). Harvested items
27. The membrane does not count towards lot coveragethe definition of which is
limited to the area under buildings (Zoning Ordinance, Sec. 22.292), and the membrane is not a
building.
28. Section 22.46(c)(3) limits the area of the membrane, as recreational equipment, to
29. If all 360 square feet of the membrane area were in the rear yard, it would occupy
there is no violation of Elmhursts 30% lot coverage regulation in the R-2 Single Family
Residential District. Not only was this violation omitted from the charges, but if this matter were
actually one at issue at the hearing, Plaintiffs would have elicited testimony that the City
previously engaged in a full review of lot coverage and found no violation. The post hoc finding
of a lot coverage violation when this issue was never charged occurred following ex parte
ENFORCEMENT HISTORY
31. Plaintiffs have used the membrane cover to avoid frost in their garden soils since
Fall 2015.
32. The City raised a concern after installation of the membrane in 2015, but seemed
to agree that it was used solely to extend the growing season by keeping soils warmer and it did
not pursue code violations until Fall 2016 after the membrane was removed and subsequently
33. In Fall 2016, Plaintiffs installed the membrane cover and received an October 7,
2016 warning to the effect that the cover was an illegal accessory structure. (Exh. I) The
35. The membrane cover is neither an accessory structure, nor an accessory building
COUNT ONE: MEMBRANES CAN BE USED IN THE BACK YARD AND REAR YARD
Count One as though the same allegations are restated in their entirety herein.
(2) A mobile home and temporary tents and membrane structures shall not be considered
on which the mobile home is located only during the time construction or development is
actively underway, provided that such mobile home is removed prior to issuance of the
covered structure as defined by the International Building Code and not otherwise defined as a
drops, constructed of fabric or pliable material supported by any manner except by air or the
40. The City and Hearing Officer ignored the definitions noted in Paragraphs 38-39 in
platforms, stages, observation towers, radios towers, water tanks and towers,
trestles, piers, wharves, sheds, coal bins, shelters, fences and display signs; the
in which a mast and cable system provides support and tension to the
tensioned membrane which provides the weather barrier. (IBC, Sec. 202)
Sec. 202)
c. Section 201.3 of the International Building Code provides: Where terms are not
defined in this code and are defined in [any one or more of four other listed
codes], such terms shall have the meanings ascribed to them as in those codes.
d. Section 201.4 of the International Building Code governs terms not defined in the
International Building Code or the four listed codes: Where terms are not defined
through the methods authorized by this section, such terms shall have ordinarily
e. Section 101.2 of the International Building Code provides that the International
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(a) Conducted or located on the same zoning lot as the principal building or use served,
(b) Clearly incidental to, subordinate in purpose to, and serves the principal use; and
(c) Either in the same ownership as the principal use or is clearly operated and
maintained solely for the comfort, convenience, necessity, or benefit of the occupants,
42. Building is defined as: Building means any structure built, used, designed, or
intended for the support, shelter, protection, or enclosure of persons, animals, chattels, or
property of any kind, and which is permanently affixed to the land. When a building is divided
into separate parts by unpierced fire or party walls extended continuously from the ground
through all stories to and above the roof, each part shall be deemed a separate building. (Zoning
a. Use of property means the purpose or activity for which the land or building
maintained;
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of such use upon neighboring land and of the public need for the particular use at
the particular location, such "conditional use" may or may not be granted, subject
d. Use, principal means the main use of land or buildings as distinguished from a
conditional.
a. Under Section 22.292 which defines Yard as follows: "Yard" means an open
space on the same zoning lot with a building or structure, unoccupied and
unobstructed from its lowest level to the sky, except as otherwise permitted in
b. Under Section 22.81(d)(1): Front, side, and rear yards shall be provided in
from the ground level to the sky; (Zoning Ordinance, Sec. 22.81(d)(1))
22.46(c)(3))
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structures shall not, in the aggregate, occupy more than forty (40) percent of any
include all and only those itemized uses under the said permitted use category
use in the R-2 Single Family Zoning District. (Zoning Ordinance, Sec.
22.90(a)(1))
22.90(e)(1))
h. If someone wishes to build a fence or a wall around a garden on the rear lot line or
the side lot line rear of the house, the fence or wall can be six (6) feet tall directly
adjacent to the lot line under Section 22.285(a). (Zoning Ordinance, Sec.
22.285(a))
45. Otherwise than as set forth in Paragraph 44, there is no other regulation of
gardening in the Zoning Ordinance. There is no listing of activities tied to single family
residential living, such as recreation, that can occur on any property in the R-2 district as either a
46. In addition to eliciting an admission from the City that gardening was recreation,
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Ordinance, Section 22.291(f) incorporates the definitions of a 1987 dictionary that was not
available at City Hall, at the Elmhurst Public Library or at Elmhurst College. Plaintiffs trekked to
the Glen Ellyn Public Library which retained its copy of the 1987 dictionary. The ordinances,
48. Perhaps the most consistent application of this rule to recreational equipment
involving membranes lies in a comparison to tents, trampolines and pool covers, which can be
found in rear yards at several locations in the City, and at least at four locations in the same block
49. Like the membrane at issue in this case, the trampolines and the pool covers sit in
50. Gardening is a popular component of residential use in the City, yet it finds no
place (such as under a description of gardens or garden plots) in the list of permitted uses in
51. Section 22.90(a) of the Zoning Ordinance also does not list private recreational
uses such as swing sets, jungle gyms, trampolines, fireplaces, decks, cabanas, hot tubs, kitchens,
basketball or volleyball nets, private hockey rinks, jump houses, picnic tables or tables with
umbrellas, or many of several other common uses of open spaces on residential lots.
52. Sec. 22.81(a) states: No building or tract of land shall be devoted to any use
22.81(a) to the effect that use lists are exclusive to permitted uses in residential districts and all
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54. No use list operates to the exclusion of gardening or other recreational activity at
home, or to the exclusion of a temporary cover over gardens or other recreational equipment.
55. In Section 22.46(c), the City relegates recreation equipment in required rear
yards to the rear yard. Recreation equipment can also occupy open space not in a required yard.
56. Section 22.46(c) operates not only to limit where recreational equipment can be
located, but also to expressly permit the membrane covering as recreational equipment.
57. The Zoning Ordinance does not define the term equipment or recreation or
58. Section 22.291(f) of the Zoning Ordinance states: Words contained in this
Chapter and not defined hereinafter shall assume definitions as prescribed in the Random House
Dictionary of the English Language, second edition, unabridged (1987). The City Clerk and the
building and zoning office do not have this edition of this dictionary. They referred Respondents
to the County law library in Wheaton. The Elmhurst Public Library does not have this edition of
the dictionary and it referred Respondents to Elmhurst College based on an online review of their
library reference materials. Upon a visit to Elmhurst College, the reference librarian could not
59. Since no one in the City has this dictionary, the regulatory scheme is
confounding. The unavailability of definitions at the City, library or Elmhurst College is, frankly,
60. Recreation indeed appears as follows in the 1987 Random House Dictionary
(see Exh.A):
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61. Plaintiffs garden as a form of recreation and the City admits gardening is
Garden, n. 1. A plot of ground, usually near a house, where flowers, shrubs, vegetables,
fruits or other herbs are cultivated. . . . v.i. 8. to lay out, cultivate, or tend a garden. . . .
62. At hearing the City admitted that gardening was recreation. Additionally, Exhibits
D, E, F, and G reflect that the Elmhurst Park District offers gardening plots as part of its function
as an award-winning recreation provider, that other park districts view gardening as recreation
and that the benefits of gardening as a component of human recreation are clear.
63. The membrane is equipment used in recreation and, thus, recreation equipment.
64. A membrane placed over a garden to keep the ground below it warmer is
65. Elmhurst may not have known that it relied on such a broad definition of
Equipment. a: the set of articles or physical resources serving to equip a person or thing:
such as (1) : the implements used in an operation or activity y : apparatus <sports
equipment> . . . .
66. The membrane cover over the garden equips Plaintiffs in avoiding frost and
67. The membrane cover is a set of articles or a set of physical resources that
serves to equip the Subject Property with a frost avoidance system. Throughout Elmhurst,
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steps away from various trampoline membranes that are just as wide and tall.
69. The larger portion of the membrane cover is situated in the 25-foot rear yard, and
some of the cover is in the buildable area between the rear yard line and the existing home.
70. If the rear 25 feet of the Subject Property is authorized for recreational equipment,
the portion of the property between the rear yard setback line and the home can certainly be used
71. The Citys October 7, 2016 notice indicates that the City perceived that a
greenhouse was constructed, but this is not the case. Section 22.90(a)(2)(b) identifies
greenhouses and conservatories as permitted accessory uses in the R-2 zoning classification. The
which the temperature is maintained within a desired range, used for cultivating tender plants or
growing plants out of season. (www.dictionary.com). The membrane is not a building and it is
not temperature-controlled. As shown in Exhibit B, there are no plants, though bulbs and seeds
may be in the soil which is intended not to freeze as a result of the membrane.
72. For the foregoing reasons, the membrane is not a conservatory because a
conservatory is a greenhouse, usually attached to a dwelling, for growing and displaying plants
according to www.dictionary.com.
73. The entirety of Section 22.42(c) concerns mobile homes, temporary trailers or
shelter.
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membrane in this case is not planned, designed, installed or used for occupancy. Section
22.42(c)(1) concerns dwelling use of a mobile home. Section 22.42(c)(2) states: A mobile home
and temporary tents and membrane structures shall not be considered to be permissible as an
accessory building. . . .
75. While tent and membrane installations prevailed at various locations around the
City during the Cubs historic run (at least North Avenue and Route 83 as well as Butterfield
Road and York Street) and they have also served outdoor sales in the Spring near CVS at North
Avenue and York Street, the City prevailed upon Respondents to remove their membrane
76. Not only is this disparate enforcement, but the City has attempted to apply its
ordinance to equipment that is permitted rather than a structure or building, and it has done so in
relation to an installation that merely avoids frost when the Cubs-wear and outdoor garden center
"Temporary structures" means the following words and terms shall have the meaning shown
herein: . . . .
There is no use of the term temporary structures in the Zoning Ordinance other than with
respect to the removal of items following a temporary use (Section 22.50). The term membrane
structure, as defined within its own definition and in the discussion of temporary structures,
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as any structure built, used, designed, or intended for the support, shelter, protection, or
enclosure of persons, animals, chattels, or property of any kind, and which is permanently
80. The definition of building under the International Building Code should not be
considered inasmuch as the Zoning Ordinance definition controls the determination of a citation
81. Consideration of the International Building Code and the Citys amendment to
prohibit membrane structures under International Building Code Section 3102.0 violated the
1970 Illinois Constitution inasmuch as the Zoning Ordinance has long authorized recreational
eliminate membrane structures as allowable recreation equipment or to otherwise zone them out
membrane structures completely ignored the express exemption from the definition of
Section 22.292. The term itself and the category under which it falls include the term structure.
safe and stable; including among others, buildings, stadiums, reviewing stands, platforms, stages,
observation towers, radios towers, water tanks and towers, trestles, piers, wharves, sheds, coal
bins, shelters, fences and display signs; the term structure shall be constructed [sic] as if
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84. The Hearing Officers decision was contrary to law and clearly erroneous.
Zoning Ordinance inasmuch as it imported definitions into the Zoning Ordinance from the
International Building Code which were not adopted following notice and hearing.
WHEREFORE, the Plaintiffs NICOLE VIRGIL and DAN VIRGIL respectfully request
that this Honorable Court enter an order reversing the Hearing Officers determination of a
violation of Section 22.42(c)(2) of the Zoning Ordinance, that the Court enter such relief as
necessary to bar the City from interfering with Plaintiffs reinstallation of the membrane over the
garden plots and that the Court enter an award against the City and Hearing Officer to the effect
that Plaintiffs may recover their costs, as well as enter such other and further relief as deemed
Count Two as though the same allegations are restated in their entirety herein.
the International Building Code which adds Section 3102.0: Membrane Structures shall not be
permitted.
Code.
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defined through methods authorized by this section [Section 201], such terms shall have
91. In light of Section 201.4, the default under the International Building Code is not
to a dictionary, but to the Zoning Ordinance definition which states that a membrane structure
92. The membrane installed only covers the earth below it to avoid frost. There is no
storage and no occupancy. There is no use, other than gardening as recreation accessory to a
principal single family residential use, unless the City intends to regulate frost avoidance as a
use.
93. The Court should reverse the Hearing Officers decision finding a violation of
Section 3102.0 which prohibits membrane structures because the membrane is not a building and
because the membrane is within the category of exempt membrane structures known as tents.
94. Even under the various definitions for types of membrane structures in Section
202 of the International Building Code states the structure must be, used or intended for
prohibited under Section 3102.0. (See IBC, Section 202) This is a two-part definition. There is
no use or occupancy. There is no support or shelter for animals, personal property, chattels or
95. The existence of a frame is meaningless under the definition and, even if it were
relevant, ample other membrane structures have frames: trampolines, pool covers, and tents.
Trampolines have frames below the membrane on which children jump amid a membrane screen
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96. The International Building Code is not applicable to the membrane at issue in this
case.
WHEREFORE, the Plaintiffs NICOLE VIRGIL and DAN VIRGIL respectfully request
that this Honorable Court enter an order reversing the Hearing Officers determination of a
violation of Section 3102.0 of the International Building Code, that the Court enter such relief as
necessary to bar the City from interfering with Plaintiffs reinstallation of the membrane over the
garden plots and that the Court enter an award against the City and Hearing Officer to the effect
that Plaintiffs may recover their costs, as well as enter such other and further relief as deemed
97. The City never charged Plaintiffs with a violation of the 30% maximum lot
apparent anticipatory retaliation against Plaintiffs for seeking administrative review, the Hearing
Officer found that the Subject Property has a lot coverage of 33.6% when the membrane is
99. "Lot coverage" means the area or portion of the lot occupied by buildings.
100. "Building" means any structure built, used, designed, or intended for the support,
shelter, protection, or enclosure of persons, animals, chattels, or property of any kind, and which
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is not a building:
c. It is recreation equipment.
102. Paragraph 4 of the Hearing Officers final decision arose with no notice
104. Plaintiffs previously met with City staff and City staff understood not only the lot
coverage of the home and detached garage, but also the area of the membrane, and the City staff
105. The City did not present a violation of the lot coverage restriction at hearing.
106. If Plaintiffs understood that the Hearing Officer might raise a sua sponte charge
of violation of the Section 22.90(e) lot coverage restriction, Plaintiffs would have directly and
107. Remand on the reversal of the finding in Paragraph 4 should not be required
because the absence of a charge of violation of Section 22.90(e) is clear from the record.
WHEREFORE, the Plaintiffs NICOLE VIRGIL and DAN VIRGIL respectfully request
that this Honorable Court enter an order reversing the Hearing Officers determination of a
violation of Section 22.90(e) of the Zoning Ordinance, that the Court enter such relief as
necessary to bar the City from interfering with Plaintiffs reinstallation of the membrane over the
garden plots and that the Court enter an award against the City and Hearing Officer to the effect
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CONCLUSION
108. Relevant provisions of the Elmhurst Zoning Ordinance are attached in Appendix
One and cited, though not relevant, provisions of the Elmhurst Building Code are attached as
Appendix Two.
WHEREFORE, the Plaintiffs, NICOLE VIRGIL and DAN VIRGIL, by their attorney
MARK W. DANIEL of DANIEL LAW OFFICE, LC., respectfully request that this Honorable
Court reverse the decision of the Hearing Officer, enter a finding that Plaintiffs are not in
violation, deny the City all relief and, further, direct the City not to interfere with Plaintiffs
EXHIBIT LIST
GROUP A Definitions from 1987 Dictionary
GROUP B Photos of Membrane
D Elmhurst Park District
E Quincy IL Park District APPENDICES
F Queens Garden Blog One Elmhurst Zoning Provisions
G UNLV Study Two Elmhurst Building Code Provisions
H Aerial of Block Showing Pools & Trampolines
I Accessory Structure Notice
J January 24, 2017 Order
K Hearing Officer February 9, 2017 Correspondence
L Known Ex Parte Correspondence
M February 28, 2017 Order
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2017MR000400