A homeowner’s protracted effort to merge his backyard with land he bought along its rear edge is on track for resolution by Naperville staff, but it comes with strings attached.
The City Council Tuesday night discussed and heard from supporters and opponents of Michael Mayor’s request to consolidate his two Jefferson Estates parcels into a single lot, eventually sending the controversy back to the staff level, where most applications of its kind are decided.
Mayor and his wife, Jeanne, say they signed a sales contract for the land purchase about two years ago, before heavy rains in April 2013 brought $100,000 worth of damage to their basement. An engineer the couple consulted after the flood said the intake of water was aggravated by drainage problems created by a berm on the property, the southern portion of which the Mayors then removed.
The crux of the issue is the contested validity of a landscape easement on Mayor’s new parcel, adjoining the Claremont Court lot where his home sits. Mayor and his attorneys maintain that local requirements for a landscape easement on the property, which adjoins several of his neighbors’ yards, do not apply because the easements were not properly recorded by the developer.
Both sides had representation at Tuesday’s council meeting, where about a quarter of the chamber’s seats were occupied by Mayor’s supporters. Neighbors Sheldon Keith and Eric Maul – who live north of the Mayors and first spoke to the council in September 2013 to register their objections to Mayor’s modification of the berm on the property, and his plans to install a sports court on the end of the land furthest removed from their yards – reiterated their opposition.
Keith, who said most of those at the meeting to urge passage of Mayor’s request do not live in the neighborhood, argued that removing the easement requirement would eliminate valuable protections for the adjacent residents and predicted that a court challenge is inevitable from one side or the other. Maul asked that officials be mindful of the precedent their decision might establish.
Neighbors to the south shared their support for the plan, however.
“Nothing strange, nothing weird, just somebody trying to consolidate the two lots that he bought and get on with his life,” said Lory Watson, who said she wasn’t clear on how the absence of the landscape easement was harmful to the adjoining properties and said the rules appeared to have changed after the request was initiated.
A staff recommendation called for council denial of the request Tuesday, but acknowledged that the existence of an easement requirement on Mayor’s lot could not be established by local authorities and would have to be decided in court. Pat Lord, a member of the city’s legal department, said staff was poised to approve the request administratively a year ago, but then learned that the landscape easement included on initial plat documents submitted by Mayor had been removed, at the advice of his attorneys.
“Until such time as a court of law makes a determination as to the validity of the Grading and Landscape Easement in question, it is legal staff’s opinion that the City should require that the Grading and Landscape Easement be reflected on the proposed plat of subdivision submitted to the City for approval by Mr. Mayor,” Lord wrote in a memo she submitted jointly with city planner Allison Laff.
Lord said Mayor and his legal team, Kathy West and Kevin Gensler of the Naperville firm of Dommermuth, Cobine, West, Gensler, Philipchuck, Corrigan & Bernhard, Ltd., had asserted that the easement is null because it was recorded after the deed.
“This is an issue that’s ripe for adjudication if somebody wants to adjudicate it,” Lord said.
The deed and related paperwork have been on the books since 2004, she added.
“If there were a title commitment pulled on this property, that easement would show of record,” said Lord, who noted that is a matter of law. “That’s how we treat everybody.”
Lord said she and West agreed last year that attaching acknowledgment of the easement’s existence with a note on the plat, despite its disputed legal status, would suffice in addressing the discrepancy, and would enable the consolidation to proceed on a preliminary basis. That route was eventually chosen by the council this week.
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“This could have been handled administratively – am I right, staff? – so I don’t think there’s any need for any motion at all,” Councilman Joe McElroy said.”Stuff shouldn’t come to the City Council when it doesn’t have to.”
After hearing testimony and discussing the matter for nearly an hour, the council removed the item from the agenda and sent the issue back to the staff level.
Twitter @scarlman