February 18, 2014

VILLAGE OF BURLINGTON

175 WATER STREET

P.O. BOX 205

BURLINGTON, IL 60109-0205

847-683-2237

Fax: 847-683-2283

 

Minutes of Public Hearing

Scheduled at 7:00 p.m.

at the Village Hall, 175 Water Street

February 18, 2014

 

Present: President Bob Walsh, Village Clerk Jeaneen Bennett, Deputy Clerk Marilyn Diede, Village Engineer John Whitehouse, Attorney Arthur Janura, Mark Wilkison and Matt Krueger.

Open the Public Hearing: President Bob Walsh opened the Public Hearing at 7:00 p.m.

Roll Call: Trustees: Betty Reiser, Nancy Melin, John Totemeier, Mary Kay Wlezen, Duane Wilkison and Jim Daffron were present.

Guests: Kathleen Volkening, Anthony Castillo, Jon Lorenz, Eleanor Peplow, Bill John, Dean Hamontree, Jason Hunt and Jim Hunt.

 

President Bob Walsh said this is a Public Hearing in order to hear reasons for and against the vacation of a portion of a roadway commonly known as West Godfrey Road, which intersects with Peplow Road and may ascertain compensation due, to the extent necessary, and publicly announce its decision on the vacation of said street. The said parcel contains 1.2337 acres more or less.

President Walsh stated all interested person will be given an opportunity to be heard. All interested persons intending or desiring to give testimony on this matter shall be sworn in as a witness.

 

Attorney Arthur Janura swore in Village Engineer John Whitehouse. Mr. Whitehouse stated he was asked by the Village Board to publish a notice for this Public Hearing in the newspaper regarding the vacation of Godfrey Road west of Peplow Road.

Village Clerk Jeaneen Bennett entered into evidence a Certificate of Publication. She stated the date of publication was February 3, 2014 in the Courier News.

Mr. Whitehouse entered into evidence the returned receipt green cards that were sent to Burlington Township Highway Commissioner Jack Krueger, Kane County Division of Transportation, Arlo and Eleanor Peplow, Jason J. Hunt and Burlington Properties LLC, adjoining properties and/or others with potential interest in this vacation.

 

Mr. Whitehouse said the Village Board made this request due to the fact that the Village believes it is in the public’s interest to vacate this right of way commonly known as West Godfrey Road due to the expense involved in maintaining it and the fact that it serves essentially as a private driveway serving properties immediately adjacent to it and a single residential property at the west of it that is not in the Village of Burlington. The right of way of West Godfrey Road is in the Village of Burlington by annexations around 2007-2008. Mr. Whitehouse pointed out that there are two existing easements to Illinois Northern Utilities Company currently known as Commonwealth Edison that have power lines within the south half of the right of way. This vacation of the public street from the Village’s perspective has no impact whatsoever on those easement rights. Those easement rights were granted by the property owners to Com Ed and the vacation of this street in the Village’s perspective has no impact whatsoever on those easements. This vacation of a public right of way also has no impact on the underlying prescriptive rights of the adjoining property owners to use this as a driveway or private road.

 

Attorney Janura swore in Bill John who lives on the east side of Godfrey Road. Mr. John expressed his concern about the vacating of the road. He felt that the possibility of the Village vacating his end of the road could be next. He stated he is the only resident on the east end of Godfrey Road. He suggested giving the road back to the Township. He said the Township did maintain it before the annexation into the Village. He asked for clarification on the annexation process.

 

 

Mr. Whitehouse commented that the Township receives Motor Fuel Tax (MFT) money to maintain the roads based on the miles of roads they have within their township. The Village receives MFT funds based on population within the Village. There was no population brought into the Village with the annexation on the west side of Godfrey Road. When the Village annexes property, any roads under the Township jurisdiction are automatically transferred to the Village’s jurisdiction. Then the Township updates their allowances based on the number of miles that they are required to maintain. In the Village’s transportation plan it is the Village’s long term intention to reopen Godfrey Road all the way to Chapman and continue it across other properties as it develops over to Rohrsen Road. In the development plans that were presented by the developer during the annexation proceedings. There would be a West Godfrey Road. It would not follow the same track it currently follows. It would run on the south side of the Hunt property. It would be fully improved

Then there would be a new access to the Hunt property from a public road that would be adjacent to the south property line. Mr. Whitehouse said the purpose of the vacation is strictly a cost saving measure because of the cost the Village has to incur to maintain it.

 

Attorney Janura swore in Jason J. Hunt, 10N816 North Peplow Road. Mr. Hunt expressed his concern for this vacation. He stated the road is 743 feet long. Mr. Hunt uses it to access ingress and egress right now. His concern is who is going to maintain it. He also wanted to know what it would take to relinquish the road back to the Township. Mr. Hunt said a lot of the traffic on this road is coming from the developer right now dumping mulch piles.

 

President Walsh commented that the Village has spent a lot of money repairing Godfrey Road. It gets no use other than what it is being used for right now. The Village gets no financial income for the road. President Walsh feels the Village is maintaining something that they shouldn’t have to maintain. When they decided not to address this they created that scenario for the Village to make the decision. The Village has no intention of closing other roads. President Walsh stated this does take up the Village’s time and it does matter. The surrounding properties is the decision of the developers to annex into the Village. Short discussion followed between the Public and President Walsh.

 

John Whitehouse commented to Mr. Hunt that the Village is looking into the mulch issue. The Village cannot prohibit the use of that road by property owners. Mr. Whitehouse said if the Board decides to vacate this public right of way, Mr. Hunt is still entitled to maintain that road as he sees fit. Mr. Whitehouse stated Mr. Hunt is free and clear to enter into maintenance agreements with other property owners over which that road travels. His right to use the road is no way diminished by the Village’s vacation of its public right of way.

As far as the Township taking over Godfrey Road Mr. Whitehouse doubted the Township would take it back because it is within an incorporated municipality. It was noted that the Township is under contract with the Village of Burlington to plow 6 ½ miles for the Village during the winter season.

 

Trustee Betty Reiser asked what promises were made to the property owners before they annexed into the Village.

 

John Whitehouse commented that you would have to get the specifics of the Annexation Agreement. The Village promised them that if they would come in and put sewers in the town and build a sewer plant for the Village that the Village would annex their property and they would gain certain development entitlements to their property along with other conditions. The Annexation Agreement stipulated what the give and take was on both sides of the agreement.

Discussion followed between Village Engineer, Trustee Reiser and the Public.

 

Village Attorney Arthur Janura gave testimony to questions asked. He stated that under State Statute the Village of Burlington does have the right to vacate roads contained within the Village. Regarding the Annexation Agreement what was to be promised to anybody; the only things that would be promised to somebody would be exactly what is contained in the Annexation Agreement. The only things that come from the Village are the actual agreements that are voted on by this Board (the corporate authority). Only the corporate authority can speak on behalf of the Village. The exact answer to Trustee Reiser’s question as to what was promised is going to be contained in the Annexation Agreement by both sides. He commented further that the reason why you have an Annexation Agreement is because before a developer can come forth and commit putting in a lot of improvements, they have to be able to show or have some rights that are enforceable. They give enforceable rights not only to the Village but to the property owners. It also allows both the Village and the people that own the property to know what type of development is actually going to occur.

 

John Whitehouse stated that the Village is not changing any access rights to any of the property owners.

 

Village Attorney Janura swore in Eleanor Peplow. Ms. Peplow asked if anyone can annex a piece of property into the Village when they don’t own it.

 

Attorney Janura commented that the legal owner has to consent to the annexation if it is a voluntary annexation. If it is an involuntary annexation a Village can take the property and annex it into the Village. Attorney Janura stated that Ms. Peplow can get a copy of the Annexation Agreement from the Village or the recorder’s office.

 

John Whitehouse commented that the Wyndham Properties group purchased contracts for real estate encompassing 1700 acres. Eleanor Peplow’s property was one of those. Ms. Peplow and other multiple property owners who owned the property at the time signed the annexation agreement. Mr. Whitehouse said that the Annexation Agreement had nothing to do with the contract between the property owners and Wyndham Properties Group to purchase the property. All of the property owners entered into the Annexation Agreement with the Village. When contiguity was achieved, all the properties were annexed in accordance with the Annexation Agreement. Wyndham Properties Group did not buy Ms. Peplow’s property. The Village’s agreement is not with Wyndham Properties Group it is with all the individual property owners who owned the land they had under contract to be purchased by Wyndham Properties Group. The Village’s Annexation Agreement is with Ms. Peplow and many other private property owners. When the property is sold the terms of the Annexation Agreement carries through to the new owner. Ms. Peplow is not being denied access to her property along what is known as Godfrey Road West. She can still use the driveway and still use Peplow Road. Short discussion followed. Mr. Whitehouse did say he would get a copy of the Annexation Agreement.

 

Jason Hunt commented that Burlington Properties and Bluff City Materials do own a parcel adjacent to his property. It is a Village parcel and they do use the access road.

 

Village Engineer John Whitehouse did agree with Mr. Hunt and said he talked with representatives for Burlington Properties, LLC, who owns the property completely surrounding Mr. Hunts. They wanted to understand the reason for the vacation and they understood it and said thank you.

 

President Walsh said the purpose of this Hearing is for the Board to decide based on all the facts and opinions that were heard; the fact that there is a maintenance issue down there that does cost the Village which doesn’t benefit the Village at all. The Board can vote to vacate this road and eliminate the continued repairs or they can vote to leave it open, which is an expense to the Village.

 

President Walsh asked for any other comments from the Public. Attorney Janura swore in James Hunt who is a county resident and lives on Engel Road. He expressed his concern that what is going on with this road could affect his road someday. He said when he first bought his property and built his house the Township maintained that road. Since 2005-2006 when the Township relinquished Engel Road to the Village it has had lots of problems.

Now he is hearing that because there is a county resident there and it was annexed into the Village, the Township does not want it, nobody wants it. Mr. Hunt felt the road should have never been annexed in the first place unless the Village had the funds. He feels the roads should have been left to the Township.

 

Jason Hunt added that 10N828 Peplow Road is in the Village limits because there is ingress and egress to that property. He feels the Village should still maintain the road. Bluff City Materials and Burlington Properties LLC are still using the road. Unless they decide they want to no longer use the road, then he doesn’t have to provide ingress and egress on the frontage road to that property.

 

Village Engineer John Whitehouse commented so everyone understood; Burlington Properties LLC has an easement across the front of Jason Hunts property for ingress and egress to their property. It is a recorded easement that they have against Mr. Hunt’s property. Mr. Whitehouse didn’t believe Jason Hunt had the right to, unless there is an agreement between the parties, not allow use of that road. Mr. Whitehouse also commented that the address of 10N828 Peplow road is a fire number for a residence that is no longer there. Mr. Whitehouse said that maybe the Village needs to talk to the Fire Chief to get the fire sign removed so there is no confusion with emergency vehicles. Mr. Whitehouse stated that Jason Hunt has full right to use that driveway. There was never a formal dedication of that right of way. This was a road that developed overtime across private property. When properties annex on one side of it, the municipality takes jurisdiction of the full right of way even if it goes into somebody else’s property who is not in the Village. The Village does not gain title to that property if they just have responsibility for that right of way and the right of way comes into the Village. Mr. Whitehouse continued saying for a county resident on Engel Road the Village has maintenance responsibility for Engle Road because it is in the Village of Burlington.

 

Jason Hunt added his concerns in regards to liability issues.

 

Attorney Janura gave his comments on the liability issue. He also said that when somebody has easement rights over property it is, in effect, a form of ownership. People have different levels of ownership.   He further stated if you have an easement, then you have a right to use that easement; which means you have a property right in it. A person who has an easement also has a responsibility to maintain that easement. Short discussion followed.

 

There were no further comments from the Public.

 

Trustee Nancy Melin made a motion to close the Public Hearing seconded by Trustee Mary Kay Wlezen. Ayes: Trustees: Nancy Melin, Mary Kay Wlezen, Betty Reiser, Duane Wilkison, John Totemeier and Jim Daffron. Six ayes, no nays, motion carried. The Public Hearing closed at 7:53 p.m.

 

Respectfully submitted,

 

 

Marilyn Diede

Deputy Clerk