CITY OF BATAVIA. DATE: May 17, 2018 TO: Committee of the Whole-CD

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1 CITY OF BATAVIA DATE: May 17, 2018 TO: Committee of the Whole-CD FROM: SUBJECT: Drew Rackow AICP, Planner Ordinance 18-33: Grant of Variances for MetroNet Ordinance 18-34: Conditional Use Permit for a Utility Facility in the GC, General Commercial District 605 East Fabyan Parkway Metro Fibernet LLC, Applicant Summary: The attached draft Ordinances and would approve the development of a utility structure for MetroNet to construct a shed for fiber-optic utility equipment as an accessory structure on property at 605 East Fabyan Parkway. This property is zoned GC, General Commercial, which allows a Utility Facility as a Conditional Use. Variances are necessary to allow the proposed setbacks, and to allow the establishment of an accessory structure prior to the development of the remainder of the parcel. Ordinance would grant variances necessary to construct the proposed structure. Ordinance would grant a Conditional Use with specified conditions to allow the proposed use of the portion of the property for utility purposes. Background: The City Council approved a franchise agreement with MetroNet in August MetroNet began build out of their network late last year. MetroNet requires the installation of a Utility Structure to connect their network to the Internet. The applicant has worked with staff on finding a location that suits their purposes within a specific geographic area. MetroNet has determined this particular location is adequate for their purposes. The property owned by Dan Nagel is undeveloped. In 2010, the City rezoned the property from B1-N Neighborhood Commercial (under the previous Zoning Code) to GC, General Commercial District. The Plan Commission and Zoning Board of Appeals (PC/ZBA) conducted Public Hearings for the requested variances and conditional use on May 2, Additional information regarding the project is provided in the attached Staff Report to the Plan Commission. One Utility structure would be constructed immediately, with plans depicting one additional structure for future expansion. The facility would be surrounded by a 7 foot tall solid wood foot fence. Plans depict landscape screening along the west and north fence lines to provide screening from adjoining residential and future commercial uses. Variances are necessary to allow a narrower transitional side building setback along the west property line, consistent with previously permitted setbacks for the property and provided landscape buffer setbacks to the south. Staff believes it is appropriate to consider the variance to allow establishment of an accessory structure prior to the principal structure in this instance due to the community need and that the site is designed in a manner to minimize impact to future development of the remaining site for commercial use. The Conditional Use Ordinance includes conditions of approval, as recommended by the Plan Commission. Landscape and design plans for the shelter would be reviewed with the building permit by staff. Staff recommends deferral of sidewalk installation until a principal structure is constructed on the property, as the amount of sidewalk frontage is otherwise minimal with the proposed development area. Conditions require vehicle parking areas be paved. The ordinance omits the condition of tax parcel merger recommended by the PC as the applicant has already done this.

2 Zoning Board of Appeals & Plan Commission Review and Action: The Plan Commission conducted the Public Hearing on May 2 nd. No members of the public spoke during the public hearing. Attorney Dan Kramer, representing the applicant and owner provided the Commission and Board of Appeals an overview of the issues with the site and expected operations. Mr. Kramer explained that the site would not have regular employees; rather, technicians may visit the site on an as needed basis to conduct repairs and maintenance of equipment within the structure. The ZBA agreed that the variances requested were the least necessary to accomplish the requested proposal, and were consistent with existing landscape buffer areas provided along the residential areas to the west. The ZBA recommended approval of the variances by a 7-0 vote. The Plan Commission agreed that the proposed conditions of approval would appropriately address the proposed utility use on the site and recommended approval of the conditional use by a vote of 7-0. The Plan Commission approved an Administrative Design Review by a vote of 7-0 subject to conditions. Alternatives: The COW can recommend approval of the Ordinances as presented, add or remove approval conditions, recommend denial, or continue its review with direction to staff for revisions. Pros: Approval would allow the development facility for the implementation of the MetroNet fiber optic utility. Proposed structure would be well screened and as conditioned should not impact adjoining uses. Cons: Approval will allow an accessory use without the establishment of a principal structure. Not approving the requested actions would delay implementation of a new communications service for residents. Budget Impact: Other than the collection of permit fees, no impact to the budget is anticipated. Staff Impact: Staff time has would be used to complete the entitlement, permitting, and inspection process. Timeline for Action: With COW recommendations, both Ordinance and Ordinance would be placed on the City Council agenda for final action on June 4 th. Staff Recommendation: Staff recommends approval of both Ordinance and Ordinance as presented. Attachments: Staff Report to the Plan Commission Draft Ordinance Draft Ordinance C: Mayor & City Council Department Heads Dan Kramer, Attorney Chris Phillips, Applicant File

3 DATE: April 26, 2018 TO: FROM: SUBJECT: Plan Commission & Zoning Board of Appeals Drew Rackow AICP, Planner CITY OF BATAVIA PUBLIC HEARINGS: Variances from the Zoning Code Conditional Use for a Utilities Facility in the GC, General Commercial District Administrative Design Review 605 East Fabyan Parkway Metro Fibernet LLC, applicant Background and Summary of Information from Applicant Public hearings are scheduled for the May 2 nd Plan Commission meeting to consider applications for variances for the Zoning Code and a Conditional Use for a Utility Facility in the GC, General Commercial District. The applicant, Metro Fibernet LLC (MetroNet) is seeking to construct an enclosed area around a 240 square foot shed with generator on the vacant commercially zoned property at 605 East Fabyan Parkway. A second shed is contemplated in a future expansion. MetroNet is a fiber-optic communication company with a City utility franchise agreement. The company provides video, phone and internet services. The proposed structures are necessary to operate the fiber optic utility within the Batavia area. The requested Conditional Use would require the following variances to permit the shed, an accessory structure, at the proposed location: 1. From Table to allow a Transitional Side Building Setback of 38 instead of the required From Table to allow a Minimum Required Perimeter Landscape Area, Side Residential to be 30 instead of the required From Section for establishment and location of accessory structures. Due to the small size of the buildings, Administrative Design Review is required. Due to the other applications under consideration, it is being referred to the Plan Commission as part of this review. Staff Analysis The applicant s narrative notes the critical role that the site would fulfill within their fiber optic service, providing a major connection of the services to the local area. The site visits would be on an as needed basis similar to other utility cabinets or structures located throughout the community for other service providers. The site is accessed by a paved driveway along Orion Road. Staff has worked with MetroNet in reviewing a number of potential locations within the City. MetroNet has certain geographic parameters for site selection. Other locations have been evaluated and eliminated, leaving this as a site that MetroNet has determined best meets their requirements. The proposed utility building is located behind a 7 foot tall solid wood fence. Plans do not include proposed building architecture. The fenced area would contain gravel. Plans depict a row of trees around the fenced area; quantities of materials are similar in character to the berms to the south of the property along Nagel Boulevard. The enclosed facility would be accessed by a paved driveway with a gate facing Orion Road. If the property was already developed with a commercial use, the proposed structure could be considered an accessory use. However, since no other use exists currently on the property, the conditional use process is necessary to establish the use. As this location is a transition area to the nearby single family neighborhood and the Batavia Rehabilitation senior care facility to the west, the Plan Commission may consider requiring additional evergreen landscaping beyond the area currently proposed. A sidewalk is not currently depicted on site plans; since no principal use/development is proposed, this utility use would not require sidewalk installation. Sidewalk installation would occur with establishment of a principal use or further development of the property. Staff does

4 recommend a condition of the provision of a concrete apron be installed with this improvement rather than the proposed asphalt. Variances In 2010, the subject property was rezoned from B1N to General Commercial District as part of the Citywide Zoning Map Amendment. Under the previous zoning code the transitional setback was 30 feet along the Batavia Rehabilitation Center property. Industrial properties to the south also share a 30 foot required landscape area. Instances where the City has rezoned property to the current property owner are situations where a variance may be considered by the Zoning Board of Appeals. The property is also a triple frontage property, which creates additional unique development issues. The bulk of the variance requests are tied to the west setback line, either as the building or landscape setback. Additionally a portion of the third request (from A.2) regarding location of an accessory structure, reflects the request of these other requests for setback and landscape area relief. The requested building variance is not for an amount greater than necessary to accomplish this particular development of the property. The building setback proposed is greater than that previously allowed on the property. The proposed perimeter landscape setback maintains the previous building setback as green space. As this is an accessory structure, the Zoning Code requires that a principal use be established prior to the principle use of the site. While there is the ability to create a separate lot for a standalone use, that would in turn require additional variances. Staff believes in this particular instance the fewer variances needed to have this as an accessory use, rather than a principal use on its own property are more appropriate. Staff notes that the proposed setbacks would be applicable only to the proposed configuration of the Utility site. Any other improvements on this site would need to be built to current requirements or seek separate approval actions. Staff believes it is appropriate to consider variances given these particular situations unique to the property. The applicant notes the need for this site to provide utility infrastructure that will see larger benefits for the city by providing additional opportunities for high speed internet and communication services. Staff has provided draft findings in the affirmative as part of this report. Conditional Use The applicant notes that the proposed shelter plays a critical role in the function and operation of the fiber-optic network currently being built out within the community. The proposed use would be accessed intermittently like other utility structures (ex. phone boxes in the right of way or cell tower shelters). Vehicles would be parked outside of the fence during service, or if a paved vehicle access is provided, may be parked within the gated area. The proposed design conforms to the Zoning requirements for parking. A generator is depicted on the site plan. It is however, located in a manner to be farthest from residential properties to the west. The building, fence and proposed landscape will provide additional buffering. The Zoning Code requires a parking place for a Utility facility when an office space is provided. No parking spaces are required. When the building is serviced vehicles would be parked in the fenced area or outside the fence on the driveway. Public Works has also requested construction of a concrete apron rather than asphalt at the right of way. Staff has included this as a condition of approval for the conditional use. Staff recommends that sidewalk installation be deferred until such time that the balance of the property is developed. Staff is supportive of the conditional use request. The proposed use should not have a negative impact on surrounding properties or the larger neighborhood. The shelter will play a critical role in providing this franchised utility service within the City. Administrative Design Review Due to the other requested review items, staff includes the Administrative Design Review for the Commission s consideration. Plans do not currently include the design of the shed. Due to the nature of the structure, and the 2

5 fact that the shed would within a 7 foot tall fence enclosure, staff recommends that the shed s design be reviewed by staff at building permit time as part of this Administrative Design Review. The number of trees provided exceeds those required by transitional yard requirements. While the Zoning Code recommends a minimum of 75% of transitional landscaping be evergreen, the Commission may require all plantings be evergreen to assure the maximum potential of screening rather than including shade or ornamental trees. The code allows some flexibility for the Plan Commission to exclude a mix of shrubs as part of the transitional landscape area. As the proposal exceeds the number of trees based on the perimeter landscape area, the Commission may allow the applicant to omit shrubs for the proposed screening. Additional screening is provided offsite by a tree stand on the Batavia Rehabilitation site. Staff suggests if additional landscape material is considered that such shrubs be added along the Orion Road frontage. The Commission does not need to approve findings for an Administrative Design Review. Review of Findings Variances Under our Code and State Statute, the ZBA is to consider all information submitted by the applicants and provided by staff, together with the information given at the public hearing. The ZBA must determine if the required variance Findings for Approval have been met. Section in Zoning Code Chapter 5.5: Variances establishes Findings the ZBA must reach before voting on a recommendation of approval or denial to the City Council s Committee of the Whole (COW). Below is each of the required findings from Section followed by staff analysis. Finding A: There are unique circumstances applicable to the property, including its size, shape, topography, location or surroundings, where strict application of the Zoning Code would create a hardship or other practical difficulty, as distinguished from a mere inconvenience, and deprive the property owner of property rights enjoyed by other property owners in the same zoning district. The subject parcel conforms to the dimension and size requirements for the General Commercial District. The property was annexed and given a zoning district classification under a previous Zoning Code which would permit a site design similar to that proposed, as a conditional use. Strict application of the Zoning Code would prohibit installation of a necessary utility structure as a principal structure, at larger setbacks limiting the use of the property for its intended highest and best use. This would deprive the owner of rights to fully develop the subject property. Finding B: Such unique circumstances were not created by the current or previous owners or applicant. The need for a variance is necessitated by changes to the Zoning Code and zoning requirements that were initiated by the City during the time the current owner has owned the property. The current owners have not created the existing circumstance for the variance. Finding C: The property cannot yield a reasonable return or be reasonably used for the purpose intended by the Zoning Code under the regulations in the district in which it is located. The requirement to place the proposed shed at a location conforming to the transitional setback may diminish the ability to use the full property for the intended commercial use. Finding D: The variance does not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is located. The proposed variance would maintain a setback similar to those of industrial properties to the south of the subject property. It would not be inconsistent with development originally contemplated for the property or that of adjoining uses. The variance would create a situation similar to that seen with other utility uses within the community. 3

6 Finding E: The variance will not be materially detrimental to persons residing or working in the vicinity, to adjacent property, to the neighborhood, or the public welfare in general. The proposed variances would not be detrimental to those nearby given the provided landscape buffers with additional quantities of trees and the nature of the small scale of improvements. The proposed use is compatible with adjacent Zoning Districts, and is listed as a permitted use in the LI Light Industrial and the Residential Districts as an Administrative Use. Staff believes that all five of the required findings are met. Conditional Use Findings In reviewing and recommending a conditional use, the Plan Commission must arrive at findings required by Section A in Zoning Code Chapter 5.4: Use Permits. Listed below are the required findings and staff analysis of each. Finding 1: The proposed use will not be detrimental to health, safety, or general welfare of persons living or working in the vicinity, to adjacent property, to the neighborhood, or to the public in general. With Plan Commission and Zoning Board of Appeals recommendation, and City Council approval of conditions, the MetroNet structures will not be detrimental to the health, safety of general welfare of the neighborhood or public in general. The proposal includes fencing and landscape screening to conceal the structure and operation from view. Back-up generators are located to provide distance and separation from residential uses. Finding 2: The proposed use conforms with the purposes, intent, and policies of the Comprehensive Plan and any applicable area, neighborhood, or other plan adopted by the City Council. The Conditional Use advances Goal 8 of the Land Use Element through providing a transitional use between residential and adjoining commercial uses. Additionally, Goal 5 of the Public Facilities and Services through Policies E and F, which stress the need to enhance communication and fiber optic infrastructure (both public and private). Goal 1 of the Batavia Comprehensive Plan s Land Use Element stresses the need to balance land uses. The proposed use would provide an opportunity to add a necessary utility use, while preserving the majority of the site for commercial use. Land Use Goal 3, Policy 3 recommends avoiding underdevelopment of property with ample utility capacity. Finding 3: The proposed use conforms, with the conditions, requirements, or standards required by the Zoning Code and any other applicable local, State, or Federal requirements. The proposed use, if granted variances would meet Zoning Code requirements. The project, in all other respects, complies with applicable requirements. Finding 4: The proposed use would not unreasonably interfere with the use and enjoyment of nearby properties. As conditioned, the proposed use would not interfere with the enjoyment of nearby properties. Staff Recommendation Staff recommends the following: 1. The Plan Commission and Zoning Board of Appeals should open and conduct the public hearings for the requested variances and Conditional Use. 2. After closing the hearing, the Plan Commission and Zoning Board must consider and make conclusions on the required findings. The Commission may consider the finding responses drafted by staff and included in this report. a. Staff recommends approval by the Zoning Board for the Findings of Approval for the requested variances 4

7 b. Staff recommends approval by the Plan Commission for the Findings of Approval for the Conditional Use 3. Staff recommends that the Zoning Board of Appeals recommend approval of the following variances from the Zoning Code: a. From Table to allow a Transitional Side Building Setback of 38 instead of the required 75 b. From Table to allow a Minimum Required Perimeter Landscape Area, Side Residential to be 30 instead of the required 40. c. From Section for establishment and location of accessory structures. subject to the conditions specified by the Plan Commission under a Conditional Use recommendation 4. Staff recommends that the Plan Commission recommend approval of a Conditional Use for MetroNet to operate an Utility Facility at 605 East Fabyan Parkway, subject to the following conditions: a. Staff review and approval of the proposed shed structure b. Staff review and approval of the proposed landscape species. c. Deferral of sidewalk installation until such time that a principal use is established on the property. d. Apron shall be constructed of concrete e. Vehicle access shall be from paved surfaces only. Graveled areas of the site shall not be used for parking of vehicles. f. Conditional Use is contingent on the proposed variance being approved by the City Council g. Verification of a merger of Tax Parcels prior to permit issuance 5. Staff recommends approval of the Administrative Design Review subject to the following conditions: a. The conditions specified within the recommendation for the Conditional Use. Attachment: Application materials c Mayor and City Council Department Heads Dan Kramer, Attorney Chris Phillips, MetroNet Media 5

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9 STATE OF ILLINOIS ) ) SS. COUNTY OF KANE ) STATEMENT OF PURPOSE Proposed use of Metro Fibernet, LLC hut to be constructed on existing vacant property on the north side of Orion Road immediately west of Nagel Boulevard in the City of Batavia: Metro Fibernet, LLC ( MetroNet ) is a fiber optic broadband service provider offering gigabit services to approximately 250,000 homes and businesses. Since 2005, MetroNet and its affiliates have constructed and operated fiber-to-the-premises (FTTP) networks in the State of Indiana and Illinois offering high quality voice, video and gigabit dada/internet services to residential and business consumers. MetroNet has overbuilt fiber in these communities and operates a fiber backbone that runs thousands of miles. MetroNet s network is 100% fiber all the way to the home and business. MetroNet s high speed broadband services help communities, such as Batavia, compete on the national and international stage and foster innovation, job creation and economic growth. The Conditional Use requested will allow MetroNet to place a network electronics shelter that will help MetroNet expand its service area in Batavia. Without the network electronics shelter, MetroNet will be unable to light the fiber optics needed for MetroNet to serve the community of Batavia. Submitted by Metro Fibernet, LLC Local counsel, Law Offices of Daniel J. Kramer 1107A S. Bridge St. Yorkville, IL fax dkramer@dankramerlaw.com

10 STATE OF ILLINOIS ) ) SS. COUNTY OF KANE ) FINDINGS OF FACT Required findings of fact before the Plan Commission or the Planning and Zoning Officer for issuance of a Conditional Use Permit pursuant to Section A and C of the City of Batavia Zoning Ordinance: A.1. The proposed use will not be detrimental to the health, safety, or general welfare of persons living or working in the vicinity, to adjacent property, to the neighborhood, or to the public in general; A.2. The proposed use is a small hut which will not in any way be detrimental to the health, safety or general welfare of the neighborhood or public in general. The area will meet all required City of Batavia setbacks, will be nicely landscaped, and is just a small building housing the necessary equipment to allow Metro Fibernet, LLC to provide fiber optic broadband service to the general public. No noxious fumes, traffic, or any side effects in any way will be a detriment to the neighborhood or public. The proposed use, as conditioned, conforms with the purposes, intent, and policies of the Comprehensive Plan and any applicable area, neighborhood, redevelopment or other plan adopted by the City Council; A.3. The proposed use complies with the Comprehensive Plan in that providing additional fiber optic broadband service to the City of Batavia and surrounding community enhances the opportunities for business and citizens to expand their use of broadband internet services within and without the community. The proposed use conforms with the conditions, requirements, or standards prescribed by the Zoning Code and any other applicable local, State, or Federal requirements; and A.4. The project in all respects complies with the Zoning Code for the subject property, and will in no way be a detriment to future development on the surrounding vacant site. The proposed use, as conditioned, would not unreasonably interfere with the use and enjoyment of nearby properties.

11 5.403 C.1. There is absolutely no interference with the use of surrounding properties if the Conditional Use is granted to Metro Fibernet, LLC. In fact it is just the opposite in that providing broadband internet service will expand business and private citizen uses and opportunities within the City and without the City of Batavia. The proposed use will not be detrimental to health, safety, or general welfare of persons living or working in the vicinity, to adjacent property, to the neighborhood, or to the public in general; C.2. The proposed use is a small hut which will not in any way be detrimental to the health, safety or general welfare of the neighborhood or public in general. The area will meet all required City of Batavia setbacks, will be nicely landscaped, and is just a small building housing the necessary equipment to allow Metro Fibernet, LLC to provide fiber optic broadband service to the general public. No noxious fumes, traffic, or any side effects in any way will be a detriment to the neighborhood or public. The proposed use, as conditioned, conforms with the purposes, intent, and policies of the Comprehensive Plan and any applicable area, neighborhood, or other plan adopted by the City Council; C.3. The proposed use complies with the Comprehensive Plan in that providing additional fiber optic broadband service to the City of Batavia and surrounding community enhances the opportunities for business and citizens to expand their use of broadband internet services within and without the community. The proposed use conforms with the conditions, requirements, or standards required by the Zoning Code and any other applicable local, State, or Federal requirements; and C.4. The project in all respects complies with the Zoning Code for the subject property, and will in no way be a detriment to future development on the surrounding vacant site. The proposed use, as conditioned, would not unreasonably interfere with the use and enjoyment of nearby properties. There is absolutely no interference with the use of surrounding properties if the Conditional Use is granted to Metro Fibernet, LLC. In fact it is just the opposite in that providing broadband internet service will expand business and private citizen uses and opportunities within the City and without the City of Batavia.

12 Required findings of fact before the Zoning Board of Appeal for issuance of a Variance pursuant to Section A-E of the City of Batavia Zoning Ordinance: A. There are unique circumstances applicable to the property, including its size, shape, topography, location or surroundings, strict application of the Zoning Code would create a hardship or other practical difficulty, as distinguished from a mere inconvenience, and deprive the property owner of property rights enjoyed by other property owners in the same zoning district; and B. The type of hut needed to be installed by the Applicant in this case is unique in a new form of communication system that requires indoor location of the apparatus. The proposed hut needs all setback requirements and will comply with Staff landscaping recommendations. The variance is being requested from the original loose outline of a very old PUD when it was anticipated that the proposed uses on this site would be more intense and there is no longer the need for as much buffering or segregation between the type of used proposed here than previously anticipated uses when the Planned Unit Development Agreement was commenced approximately 18 years ago. Such unique circumstances were not created by the current or previous owners or applicant; and C. The Applicant is a Lessee of the land and had no ownership in the land, nor was the industry that has developed for fiber optic internet use even in existence when the original Planned Unit Development was made. The property cannot yield a reasonable return or be reasonably used for the purpose intended by the Zoning Code under the regulations in the district in which it is located; and D. The subject property has remained totally vacant since the early 1970 s when it was first annexed to the City of Batavia. The subject property has remained vacant and there has never been a Contract for sale presented for the purchase and development of the property in the approximate 18 years since the Planned Unit Development was originally approved. The variance does not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is located; and

13 5.503 E. The variance does not in any way prevent the development of the remainder of the property and in fact may hasten the development of the remainder of the property given that it will increase fiber optic capacity greatly in and around the City of Batavia. The variance will not be materially detrimental to persons residing or working in the vicinity, to adjacent property, to the neighborhood, or the public welfare in general. The variance proposed does not in any way cause any detriment to the public in that the site is adjacent to a small amount of residential and nursing home. It will have proper buffering and setbacks, and is surrounded on the other sides by public streets with appropriate setbacks. No diminution in value or interference with neighboring properties will be affected what so ever. Submitted by Metro Fibernet, LLC Local counsel, Law Offices of Daniel J. Kramer 1107A S. Bridge St. Yorkville, IL fax dkramer@dankramerlaw.com

14 ON ROLLERS WOOD GATE 10' EXISTING WATER MAIN EASEMENT SLIDING 14' W WOOD WOOD FENCE SHELTER 7' H CLOSE SLAT EXPANSION 15.0' 25.0' 8.0' 6.0' 9.0' 78.0' 12' X 28' BARRIER 30.0' 31.0' 47.0' EASEMENT 10' W 35.0' DPE 10' W EASEMENT 10.0' SHELTER NETWORK Orion Rd 6.0' NAT GEN SET 4"D LANDSCAPING ROCK WITH GEOTEXTILE WEED DESIGN ENG: RD DRAWN BY: RD SCALE: NTS DATE DRAWN: 03/26/2018 FILE NAME: Hut Site Nagel Blvd & Orion Rd.dwg PROJECT NUMBER: BATVIL CB SHEET NO 1 OF 2 CONCEPTUAL SHELTER LAYOUT KANE COUNTY ILLINOIS BATVIL CB PROPOSED SOUTH NETWORK SHELTER NW CORNER OF NAGEL & ORION

15 Orion Rd 1504 ON ROLLERS WOOD GATE 10' EXISTING WATER MAIN EASEMENT SLIDING 14' W WOOD WOOD FENCE 7' H CLOSE SLAT SHELTER EXPANSION 15.0' 8.0' 6.0' 78.0' 12' X 28' BARRIER SHELTER GEN SET NAT NETWORK WITH GEOTEXTILE WEED 4"D LANDSCAPING ROCK 30.0' 10.0' 25.0' 9.0' 31.0' 47.0' EASEMENT 10' W 6.0' 35.0' E 10' W EASEMENT 10' W EASEMENT Nagel Blvd CONCEPTUAL SHELTER LAYOUT KANE COUNTY ILLINOIS BATVIL CB PROPOSED SOUTH NETWORK SHELTER NW CORNER OF NAGEL & ORION 7 DESIGN ENG: RD DRAWN BY: RD SCALE: NTS DATE DRAWN: 03/26/2018 FILE NAME: Hut Site Nagel Blvd & Orion Rd.dwg PROJECT NUMBER: BATVIL CB SHEET NO 2 OF 2

16 ON ROLLERS WOOD GATE 10' EXISTING WATER MAIN EASEMENT SLIDING 14' W WOOD WOOD FENCE SHELTER 7' H CLOSE SLAT EXPANSION 15.0' 25.0' 8.0' 6.0' 9.0' 78.0' 12' X 28' BARRIER 30.0' 31.0' 47.0' EASEMENT 10' W 35.0' DPE 10' W EASEMENT 10.0' SHELTER NETWORK Orion Rd 6.0' NAT GEN SET 4"D LANDSCAPING ROCK WITH GEOTEXTILE WEED DESIGN ENG: RD DRAWN BY: RD SCALE: NTS DATE DRAWN: 03/26/2018 FILE NAME: Hut Site Nagel Blvd & Orion Rd.dwg PROJECT NUMBER: BATVIL CB SHEET NO 1 OF 2 CONCEPTUAL SHELTER LAYOUT KANE COUNTY ILLINOIS BATVIL CB PROPOSED SOUTH NETWORK SHELTER NW CORNER OF NAGEL & ORION

17 Orion Rd 1504 ON ROLLERS WOOD GATE 10' EXISTING WATER MAIN EASEMENT SLIDING 14' W WOOD WOOD FENCE 7' H CLOSE SLAT SHELTER EXPANSION 15.0' 8.0' 6.0' 78.0' 12' X 28' BARRIER SHELTER GEN SET NAT NETWORK WITH GEOTEXTILE WEED 4"D LANDSCAPING ROCK 30.0' 10.0' 25.0' 9.0' 31.0' 47.0' EASEMENT 10' W 6.0' 35.0' E 10' W EASEMENT 10' W EASEMENT Nagel Blvd CONCEPTUAL SHELTER LAYOUT KANE COUNTY ILLINOIS BATVIL CB PROPOSED SOUTH NETWORK SHELTER NW CORNER OF NAGEL & ORION 7 DESIGN ENG: RD DRAWN BY: RD SCALE: NTS DATE DRAWN: 03/26/2018 FILE NAME: Hut Site Nagel Blvd & Orion Rd.dwg PROJECT NUMBER: BATVIL CB SHEET NO 2 OF 2

18 CITY OF BATAVIA, ILLINOIS ORDINANCE GRANT OF VARIANCES FOR METRONET (605 East Fabyan Parkway) ADOPTED BY THE MAYOR AND CITY COUNCIL THIS 4 TH DAY OF JUNE, 2018 Published in pamphlet form Prepared by: by authority of the Mayor and City Council of the City of Batavia, City of Batavia Kane & DuPage Counties, Illinois, 100 N. Island Ave. This 5 th day of June, 2018 Batavia, IL of 4 pages, excluding Exhibits

19 CITY OF BATAVIA, ILLINOIS ORDINANCE GRANT OF VARIANCES FOR METRONET (605 East Fabyan Parkway) WHEREAS, Metro Fibernet, LLC, as applicant for property owned by Daniel Nagel, located at 605 East Fabyan Parkway, and legally described as: THAT PART OF THE WEST HALF OF SECTION 14, TOWNSHIP 39 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF LOT 1 OF FARMSTEAD III UNIT 1, GENEVA TOWNSHIP, KANE COUNTY, ILLINOIS ; THENCE NORTH WEST, ALONG THE WEST LINE OF BATAVIA INDUSTRIAL CENTER UNIT 2, FEET TO THE SOUTH LINE OF FABYAN PARKWAY; THENCE SOUTHWESTERLY, ALONG SAID SOUTH LINE, BEING A CURVE TO THE LEFT WITH A RADIUS OF FEETAND A CHORD BEARING OF SOUTH WEST, AN ARC DISTANCE OF FEET TO THE WEST LINE OF NAGEL BOULEVARD FOR THE POINT OF BEGINNING; THENCE SOUTH EAST, ALONG SAID WEST LINE, FEET; THENCE SOUTH EAST, ALONG SAID WEST LINE, FEET; THENCE SOUTH EAST, ALONG SAID WEST LINE, FEET TO THE NORTH LINE OF ORION ROAD; THENCE SOUTH WEST, ALONG SAID NORTH LINE, FEET TO THE EAST LINE OF BATAVIA HIGHLANDS, UNIT NO. 4, BATAVIA, KANE COUNTY, ILLINOIS ; THENCE NORTH WEST, ALONG SAID EAST LINE, FEET TO SAID SOUTH LINE OF FABYAN PARKWAY; THENCE NORTH EAST, ALONG SAID SOUTH LINE, FEET; THENCE CONTINUING EASTERLY, ALONG SAID SOUTH LINE, BEING A TANGENTIAL CURVE TO THE RIGHT WITH A RADIUS OF FEET, AN ARC DISTANCE OF FEET TO THE POINT OF BEGINNING IN THE CITY OF BATAVIA, KANE COUNTY, ILLINOIS AND CONTAINING ACRES. (PINs ) has filed an application for Variances from Sections of the Zoning Code as follows: 1. From Table to allow a Transitional Side Building Setback of 38 instead of the required 75 ; 2. From Table to allow a Minimum Required Perimeter Landscape Area, Side Residential to be 30 instead of the required 40 ; 3. From Section for establishment and location of accessory structures; and WHEREAS, notice was duly executed and a public hearing held by the Zoning Board of Appeals on May 2, 2018; and WHEREAS, following said hearing, the Zoning Board of Appeals made the following findings: 1. There are unique circumstances applicable to the property, including its size, shape, topography, location or surroundings, strict application of the Zoning Code would create a hardship or other practical difficulty, as distinguished from a mere inconvenience, and deprive the property owner of property rights enjoyed by other property owners in the same zoning district. 2 of 4 pages, excluding Exhibits

20 CITY OF BATAVIA, ILLINOIS ORDINANCE Finding: The subject parcel conforms to the dimension and size requirements for the General Commercial District. The property was annexed and given a zoning district classification under a previous Zoning Code which would permit a site design similar to that proposed, as a conditional use. Strict application of the Zoning Code would prohibit installation of a necessary utility structure as a principal structure, at larger setbacks limiting the use of the property for its intended highest and best use. This would deprive the owner of rights to fully develop the subject property. 2. Such unique circumstances were not created by the current or previous owners or applicant. Finding: The need for a variance is necessitated by changes to the Zoning Code and zoning requirements that were initiated by the City during the time the current owner has owned the property. The current owners have not created the existing circumstance for the variance. 3. The property cannot yield a reasonable return or be reasonably used for the purpose intended by the Zoning Code under the regulations in the district in which it is located. Finding: The requirement to place the proposed shed at a location conforming to the transitional setback may diminish the ability to use the full property for the intended commercial use. 4. The variance does not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is located. Finding: The proposed variance would maintain a setback similar to those of industrial properties to the south of the subject property. It would not be inconsistent with development originally contemplated for the property or that of adjoining uses. The variance would create a situation similar to that seen with other utility uses within the community. 5. The variance will not be materially detrimental to persons residing or working in the vicinity, to adjacent property, to the neighborhood, or the public welfare in general. Finding: The proposed variances would not be detrimental to those nearby given the provided landscape buffers with additional quantities of trees and the nature of the small scale of improvements. The proposed use is compatible with adjacent Zoning Districts, and is listed as a permitted use in the LI Light Industrial and the Residential Districts as an Administrative Use; and WHEREAS, following said hearing, the Zoning Board of Appeals recommended approval of the requested Variances from the City of Batavia Zoning Code with conditions of approval; and WHEREAS, the Batavia City Council s Committee of the Whole has reviewed the application, the record of the public hearing, and the actions and findings of the Zoning Board of Appeals; and WHEREAS, the Committee of the Whole has recommended approval of the requested variances in accordance with the recommendations of the Zoning Board of Appeals. NOW, THEREFORE, BE IT HEREBY ORDAINED by the City Council of the City of Batavia, Kane and DuPage Counties, Illinois as follows: SECTION 1: That the application by Metro Fibernet, LLC for the following variances from the Batavia Zoning Code (City Code Title 10), 3 of 4 pages, excluding Exhibits

21 CITY OF BATAVIA, ILLINOIS ORDINANCE Table to allow a Transitional Side Building Setback of 38 instead of the required 75 ; 2. Table to allow a Minimum Required Perimeter Landscape Area, Side Residential to be 30 instead of the required 40 ; 3. Section for establishment and location of accessory structures; and To allow construction of a utility structure, subject to conditional use approval, in the GC General Commercial District, in accordance with the exhibits attached hereto, and subject to the conditions specified in a Conditional Use Ordinance, is approved. Exhibit Plan Dated Prepared by A Site Plan March 26, 2018 Metronet Technologies SECTION 2: That this Ordinance shall be in full force and effect upon its presentation, passage and publication according to law. PRESENTED to and PASSED by the City Council of the City of Batavia, Illinois, this 4 th day of June, APPROVED by me as Mayor of said City of Batavia, Illinois, this 4 th day of June, Jeffery D. Schielke, Mayor Ward Aldermen Ayes Nays Absent Abstain Aldermen Ayes Nays Absent Abstain 1 O Brien Salvati 2 Callahan Wolff 3 Meitzler Chanzit 4 Malay Stark 5 Uher Atac 6 Cerone Russotto 7 McFadden Brown Mayor Schielke VOTE: Ayes Nays Absent Abstention(s) Total holding office: Mayor and 14 aldermen ATTEST: Ellen Posledni, City Clerk 4 of 4 pages, excluding Exhibits

22 ON ROLLERS WOOD GATE 10' EXISTING WATER MAIN EASEMENT SLIDING 14' W WOOD SHELTER 7' H CLOSE SLAT EXPANSION WOOD FENCE 15.0' 25.0' 8.0' 6.0' 9.0' 78.0' BARRIER 30.0' 35.0' 31.0' 47.0' 10' W EASEMENT DPE Exhibit "A" of Ordinance and ' W EASEMENT 10.0' SHELTER 12' X 28' NETWORK Orion Rd 6.0' NAT GEN SET 4"D LANDSCAPING ROCK WITH GEOTEXTILE WEED DESIGN ENG: RD DRAWN BY: RD SCALE: NTS DATE DRAWN: 03/26/2018 FILE NAME: Hut Site Nagel Blvd & Orion Rd.dwg PROJECT NUMBER: BATVIL CB SHEET NO 1 OF 2 CONCEPTUAL SHELTER LAYOUT KANE COUNTY ILLINOIS BATVIL CB PROPOSED SOUTH NETWORK SHELTER NW CORNER OF NAGEL & ORION

23 CITY OF BATAVIA, ILLINOIS ORDINANCE CONDITIONAL USE PERMIT FOR A UTILITIES FACILITY IN THE GC, GENERAL COMMERCIAL DISTRICT METRO FIBERNET LLC., APPLICANT (605 EAST FABYAN PARKWAY) ADOPTED BY THE MAYOR AND CITY COUNCIL THIS 4 th DAY OF JUNE, 2018 Published in pamphlet form Prepared by: by authority of the Mayor and City Council of the City of Batavia, City of Batavia Kane & DuPage Counties, Illinois, 100 N. Island Ave. This 5 th day of June, 2018 Batavia, IL Page 1 of 5, Excluding Exhibits

24 CITY OF BATAVIA, ILLINOIS ORDINANCE CONDITIONAL USE PERMIT FOR A UTILITIES FACILITY IN THE GC, GENERAL COMMERCIAL DISTRICT Metro Fibernet LLC, Applicant (605 East Fabyan Parkway) WHEREAS, Metro Fibernet LLC, has submitted an application for a Conditional Use Permit to the City of Batavia Zoning Code on part of the property owned by Daniel Nagel at 605 East Fabyan Parkway and legally described as: THAT PART OF THE WEST HALF OF SECTION 14, TOWNSHIP 39 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF LOT 1 OF FARMSTEAD III UNIT 1, GENEVA TOWNSHIP, KANE COUNTY, ILLINOIS ; THENCE NORTH WEST, ALONG THE WEST LINE OF BATAVIA INDUSTRIAL CENTER UNIT 2, FEET TO THE SOUTH LINE OF FABYAN PARKWAY; THENCE SOUTHWESTERLY, ALONG SAID SOUTH LINE, BEING A CURVE TO THE LEFT WITH A RADIUS OF FEETAND A CHORD BEARING OF SOUTH WEST, AN ARC DISTANCE OF FEET TO THE WEST LINE OF NAGEL BOULEVARD FOR THE POINT OF BEGINNING; THENCE SOUTH EAST, ALONG SAID WEST LINE, FEET; THENCE SOUTH EAST, ALONG SAID WEST LINE, FEET; THENCE SOUTH EAST, ALONG SAID WEST LINE, FEET TO THE NORTH LINE OF ORION ROAD; THENCE SOUTH WEST, ALONG SAID NORTH LINE, FEET TO THE EAST LINE OF BATAVIA HIGHLANDS, UNIT NO. 4, BATAVIA, KANE COUNTY, ILLINOIS ; THENCE NORTH WEST, ALONG SAID EAST LINE, FEET TO SAID SOUTH LINE OF FABYAN PARKWAY; THENCE NORTH EAST, ALONG SAID SOUTH LINE, FEET; THENCE CONTINUING EASTERLY, ALONG SAID SOUTH LINE, BEING A TANGENTIAL CURVE TO THE RIGHT WITH A RADIUS OF FEET, AN ARC DISTANCE OF FEET TO THE POINT OF BEGINNING IN THE CITY OF BATAVIA, KANE COUNTY, ILLINOIS AND CONTAINING ACRES. (PINs ) WHEREAS, said Applicant is requesting a Conditional Use Permit to allow the operation of a Utility Facility in the GC, General Commercial District; and WHEREAS, notice was duly executed and the Batavia Plan Commission held a public hearing on May 2, 2018; and WHEREAS, following said hearing, the Plan Commission made the following findings required for approval: Page 2 of 5, Excluding Exhibits

25 CITY OF BATAVIA, ILLINOIS ORDINANCE The proposed use, as conditioned, will not be detrimental to health, safety, or general welfare of persons living or working in the vicinity, to adjacent property, to the neighborhood, or to the public in general; FINDING: With Plan Commission and Zoning Board of Appeals recommendation, and City Council approval of conditions, the utility structures will not be detrimental to the health, safety of general welfare of the neighborhood or public in general. The proposal includes fencing and landscape screening to conceal the structure and operation from view. Back-up generators are located to provide distance and separation from residential uses. 2. The proposed use, as conditioned, conforms with the purposes, intent, and policies of the Comprehensive Plan and any applicable area, neighborhood, or other plan adopted by the City Council; FINDING: The Conditional Use advances Goal 8 of the Land Use Element through providing a transitional use between residential and adjoining commercial uses. Additionally, Goal 5 of the Public Facilities and Services through Policies E and F, which stress the need to enhance communication and fiber optic infrastructure (both public and private). Goal 1 of the Batavia Comprehensive Plan s Land Use Element stresses the need to balance land uses. The proposed use would provide an opportunity to add a necessary utility use, while preserving the majority of the site for commercial use. Land Use Goal 3, Policy 3 recommends avoiding underdevelopment of property with ample utility capacity. 3. The proposed use, as conditioned, conforms with the conditions, requirements, or standards required by the Zoning Code and any other applicable local, State, or Federal requirements; FINDING: The proposed use, if granted variances would meet Zoning Code requirements. The project, in all other respects, complies with applicable requirements. 4. The proposed use, as conditioned, would not unreasonably interfere with the use and enjoyment of nearby properties; and FINDING: As conditioned, the proposed use would not interfere with the enjoyment of nearby properties. WHEREAS, after making its findings, the Plan Commission recommended to the City Council approval of a Conditional Use Permit being granted to Metro Fibernet LLC subject to the following conditions: 1. Staff review and approval of the proposed shed structure 2. Staff review and approval of the proposed landscape species. 3. Deferral of sidewalk installation until such time that a principal use is established on the property. 4. Apron shall be constructed of concrete 5. Vehicle access shall be from paved surfaces only. Graveled areas of the site shall not be used for parking of vehicles. Page 3 of 5, Excluding Exhibits

26 CITY OF BATAVIA, ILLINOIS ORDINANCE Conditional Use is contingent on the proposed variance being approved by the City Council 7. Verification of a merger of Tax Parcels prior to permit issuance WHEREAS, on May 22, 2018, the City Council s Committee of the Whole reviewed the application, the record of the public hearing, and the actions and findings of the Plan Commission and recommended approval of a Conditional Use Permit being granted to Metro Fibernet LLC, subject to conditions; and WHEREAS, the City Council of the City of Batavia has considered the recommendations of both the Plan Commission and the Committee of the Whole. NOW THEREFORE, BE IT ORDAINED, by the City Council of the City of Batavia, Kane and DuPage Counties, Illinois: SECTION 1: The application for a Conditional Use Permit submitted by Metro Fibernet, LLC, to allow the operation of a Utility Facility at 605 East Fabyan Parkway in the GC, General Commercial District, under City Code Title 10, Chapter 5.4, whose application included the following plans, Exhibit Plan Dated Prepared by A Site Plan March 26, 2018 Metronet Technologies is hereby approved with the following conditions: 1. Staff review and approval of the proposed shed structure 2. Staff review and approval of the proposed landscape species. 3. Deferral of sidewalk installation until such time that a principal use is established on the property. 4. Apron shall be constructed of concrete 5. Vehicle access shall be from paved surfaces only. Graveled areas of the site shall not be used for parking of vehicles. 6. Conditional Use is contingent on the proposed variance being approved by the City Council SECTION 2: That this Ordinance shall be in full force and effect upon its presentation, passage and publication according to the law. Page 4 of 5, Excluding Exhibits

27 CITY OF BATAVIA, ILLINOIS ORDINANCE PRESENTED to and PASSED by the City Council of the City of Batavia, Illinois, this 4 th day of June, APPROVED by me as Mayor of said City of Batavia, Illinois, this 4 th day of June, Jeffery D. Schielke, Mayor Ward Aldermen Ayes Nays Absent Abstain Aldermen Ayes Nays Absent Abstain 1 O Brien Salvati 2 Callahan Wolff 3 Meitzler Chanzit 4 Malay Stark 5 Uher Atac 6 Cerone Russotto 7 McFadden Brown Mayor Schielke VOTE: Ayes Nays Absent Abstention(s) Total holding office: Mayor and 14 aldermen ATTEST: Ellen Posledni, City Clerk Page 5 of 5, Excluding Exhibits