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UNITED STATES OF AMERICA

STATE OF ILLINOIS COUNTY OF DUPAGE


IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT

NICOLE VIRGIL, individually, and)


DAN VIRGIL, individually, ) TRANS# : 4001315
2017MR000400
) 2017MR000400
FILEDATE : 03/23/2017
Plaintiffs, ) Date Submitted : 03/23/2017 09:40 PM
Date Accepted : 03/24/2017 09:00 AM
) Case No.: AMY TEELING
vs. ) 05-22-17

) Citation No.: EL-002450


CITY OF ELMHURST, an Illinois ) Decision Date: February 24, 2017
municipal corporation, and the )
ADMINISTRATIVE HEARING OFFICER )
OF THE CITY OF ELMHURST, in his )
official capacity, )
)
Defendants. )

COMPLAINT FOR ADMINISTRATIVE REVIEW UNDER 735 ILCS 5/3-101 ET SEQ.

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

ADMINISTRATIVE HEARING OFFICER OF THE CITY OF ELMHURST (Hearing

Officer) which entered findings and a determination adverse to them and favorable to the CITY

OF ELMHURST (City) in the form attached as Exhibit M:

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

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incorporated into the Zoning Ordinance, any such regulation constitutes a violation of the 1970

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.

4. The membrane is equipment comprised of wood, PVC and a collection of straps

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

B is an accurate depiction of the membrane installed over the garden plots.

THE HEARING OFFICERS DECISION

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

copy of the January 24, 2017 order is attached as Exhibit J.

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6. On February 9, 2017, the Hearing Officer issued correspondence attached hereto

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

written Findings of Facts and Decision on February 28, 2017.

7. Inasmuch as Plaintiffs observed many abnormalities in proceedings and because

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

following communications which are attached in Exhibit L:

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;

b. A personal communication with Plaintiffs attorney (who expressed that there

were problems with handling minors cases, including truancy cases in a public

forum on January 24, 2017);

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

no final order due to the continuation of the case for compliance;

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.

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As soon as we get that order complete I will send it to you, and I will make sure
we have a copy of the audio saved for you from that hearing.

f. Email communication from the City prosecutor on February 8, 2017 asking

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]

may wish to add;

g. Email communication to the City prosecutor on February 8, 2017 sharing the

Hearing Officers draft February 9, 2017 letter to Plaintiffs and from the City

prosecutor indicating that he was happy with the letter.

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,

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2017 and added material that was not part of his decision or even part of the charges raised on

January 24, 2017(see Count Three):

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

targets and jump houses.

12. Recreational equipment is an undefined term of the Zoning Ordinance that

encompasses the membrane cover used in gardening. Recreational equipment is permissible in

any area of the Subject Property that is not a required yard and, also, in the rear yard of the

Subject Property. (Zoning Ordinance, Sec. 22.46(c)(3))

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.

ABOUT THE SUBJECT PROPERTY

14. The Subject Property is a mid-block residential lot on the west side of Fairview

between Vallette Street and Crescent Street.

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15. The Subject Property hosts two buildings: a home and a detached garage. It lies

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

interior side yard setbacks, and the Subject Property complies.

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

a rear yard occupied by recreational equipment.

ABOUT THE MEMBRANE

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

than other tents.

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.

23. The membrane does not protect humans, animals or property.

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24. The membrane remains over the garden for roughly five months (less than 180

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

is permanently affixed to the land).

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

are stored elsewhere.

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

not more than 40% of the rear yard.

29. If all 360 square feet of the membrane area were in the rear yard, it would occupy

only 23% of the 1,562.5 square foot rear yard.

30. Contrary to the Hearing Officers contrived finding in Exhibit M, Paragraph 4,

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

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communications and is highly prejudicial. The City and Hearing Officer denied Plaintiffs their

rights to procedural due process before, during and after hearing.

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

reinstalled for the next cold season.

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

October 7, 2016 notice referred to the membrane cover as a greenhouse.

34. Under Section 22.292 an accessory structure is not defined. An accessory

building or use is defined as a building or use which meets certain characteristics.

35. The membrane cover is neither an accessory structure, nor an accessory building

or use nor a greenhouse.

COUNT ONE: MEMBRANES CAN BE USED IN THE BACK YARD AND REAR YARD

36. Plaintiffs incorporate Paragraphs 1-35 of this Complaint in this Paragraph 36 of

Count One as though the same allegations are restated in their entirety herein.

37. There is no violation of Section 22.42(c)(2) of the Zoning Ordinance, which is

wholly inapplicable but, nonetheless, provides:

(c) Mobile Homes (House Trailers).

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(1) The use of a mobile home as a permanent or temporary dwelling unit is expressly

prohibited, unless authorized by City Council.

(2) A mobile home and temporary tents and membrane structures shall not be considered

to be permissible as an accessory building. However, a mobile home may be used as a

temporary office or shelter incidental to construction on or development of the premises

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

certificate of occupancy. Such temporary use as an office or shelter shall require a

temporary occupancy certificate, in accordance with subsection 22.22(b).

38. Membrane structure means an air-inflated, air-supported, cable or frame

covered structure as defined by the International Building Code and not otherwise defined as a

tent. (Zoning Ordinance, Sec. 22.292)

39. Tent means a structure, enclosure or shelter, with or without side-walls or

drops, constructed of fabric or pliable material supported by any manner except by air or the

contents that it protects. (Zoning Ordinance, Sec. 22.292)

40. The City and Hearing Officer ignored the definitions noted in Paragraphs 38-39 in

favor of the following less specific definitions:

a. Structure means a combination of material to form a construction that is 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 as if followed by the words or part thereof;

(Zoning Ordinance, Sec. 22.292)

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b. The International Building Code does not specifically define membrane

structure but it defines types of them as follows:

i. Membrane-Covered Cable Structure means A nonpressurized structure

in which a mast and cable system provides support and tension to the

membrane weather barrier and the membrane imparts stability to the

structure; (IBC, Sec. 202)

ii. Membrane-Covered Frame Structure means A nonpressurized building

wherein the structure is composed of a rigid framework to support a

tensioned membrane which provides the weather barrier. (IBC, Sec. 202)

iii. Building means Any structure used or intended for supporting or

sheltering and use or occupancy. (IBC, Sec. 202)

iv. Structure means A portion of that which is built or constructed. (IBC,

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

accepted meanings such as the context implies.

e. Section 101.2 of the International Building Code provides that the International

Building Code shall apply to the construction, alteration, relocation,

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enlargement, replacement, repair, equipment, use and occupancy, location,

maintenance, removal and demolition of every building or structure. . . .

41. The Zoning Ordinance defines Accessory building as follows:

"Accessory building or use" means a building or use, which is:

(a) Conducted or located on the same zoning lot as the principal building or use served,

except as may be specifically provided elsewhere in this Chapter;

(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,

employees, customers, or visitors of or to the principal use.

(Zoning Ordinance, Sec. 22.292)

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

Ordinance, Sec. 22.292)

43. Use is not defined except through three other definitions:

a. Use of property means the purpose or activity for which the land or building

thereon is designed, arranged, or intended, or for which it is occupied or

maintained;

b. "Use, conditional means a use-either public or private-which, because of its

unique characteristics, cannot be properly classified as a permitted use in a

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particular district or districts. After due consideration, in each case, of the impact

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

to the terms of this Chapter.

c. Use, permitted means a use which may be lawfully established in a particular

district or districts provided it conforms with all requirements, regulations, and

standards of such district.

d. Use, principal means the main use of land or buildings as distinguished from a

subordinate or accessory use. A principal use may be permitted or

conditional.

(Zoning Ordinance, Sec. 22.292)

44. The City regulates gardening as follows:

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

subsection 22.46(c); (Zoning Ordinance, Sec. 22.292)

b. Under Section 22.81(d)(1): Front, side, and rear yards shall be provided in

accordance with the regulations hereinafter indicated and shall be unobstructed

from the ground level to the sky; (Zoning Ordinance, Sec. 22.81(d)(1))

c. Under Section 22.46(c)(3): The following shall not be considered to be

obstructions when located in the required yards specified: . . . In rear yards.

Recreational and laundry drying equipment; (Zoning Ordinance, Sec.

22.46(c)(3))

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d. Under Section 22.46(c): Permitted obstructions and detached accessory

structures shall not, in the aggregate, occupy more than forty (40) percent of any

required yard. (Zoning Ordinance, Sec. 22.46(c))

e. Under Section 22.81(a), Unless otherwise specifically set forth, wherever a

permitted use is named as a major category in this chapter, it shall be deemed to

include all and only those itemized uses under the said permitted use category

listed in the district. (Zoning Ordinance, Sec. 22.81(a))

f. Section 22.90(a)(1) identifies Single-family detached dwellings as a permitted

use in the R-2 Single Family Zoning District. (Zoning Ordinance, Sec.

22.90(a)(1))

g. Section 22.90(e)(1) imposes a 25-foot rear yard. (Zoning Ordinance, Sec.

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

permitted or a special use. (Zoning Ordinance, Secs. 22.90(a), (b))

46. In addition to eliciting an admission from the City that gardening was recreation,

Plaintiffs provided evidence that gardening is recreation. (Exhibits D, E, F and G)

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47. With no definition of recreational equipment in Section 22.292 of the Zoning

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,

interpreted according to the definitions in Exhibit A hereto, fully support Respondents.

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

as the Subject Property. (See Exhibits H and H-1)

49. Like the membrane at issue in this case, the trampolines and the pool covers sit in

the rear of homes.

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

Section 22.90(a) because a garden is always accessory to another use.

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

other than a use permitted hereinafter. . . . There is no reasonable application of Section

22.81(a) to the effect that use lists are exclusive to permitted uses in residential districts and all

other uses noted in Paragraph 51 are prohibited.

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53. The Zoning Ordinance authorizes residential use as a principal use and it does not

prohibit accessory recreational use of residential property.

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

recreation equipment as that term or a part thereof appears in Section 22.46(c)(3).

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

locate the 1987 edition.

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,

unfair to staff and to the landowner.

60. Recreation indeed appears as follows in the 1987 Random House Dictionary

(see Exh.A):

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Recreation, n. 1. Refreshment by means of some pastime, agreeable exercise, or the like. 2.
A pastime, diversion, exercise, or other resource affording relaxation and enjoyment....

61. Plaintiffs garden as a form of recreation and the City admits gardening is

recreation. The 1987 Random House Dictionary (Exh A) helps:

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. . . .

Gardening, n. 1. the act of cultivating or tending a garden. 2. the work or art of a


gardener.

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.

The 1987 Random House Dictionary (Exh.A) defines equipment as follows:

Equipment, n. 1. Anything kept, furnished, or provided for a specific purpose. . . .

64. A membrane placed over a garden to keep the ground below it warmer is

equipment under the definition.

65. Elmhurst may not have known that it relied on such a broad definition of

equipment, but it gets no better under Merriam-Websters definition:

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

serves to equip the garden with a means to avoid frost.

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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residents respond to Fall frost advisories with poles or posts upon which they hang or suspend

sheets, pool covers and other items to protect gardens.

68. Additionally, Plaintiffs membrane on a frame is viewed as non-compliant only

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

for recreational equipment.

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

dictionary definition of greenhouse is a building, room, or area, usually chiefly of glass, in

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

other styles of temporary occupancies as an accessory building, be it a dwelling or an office or a

shelter.

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74. All of the items referenced in Section 22.42(c) relate to occupancies and the

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

installation over their garden.

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

tents and membranes protect shirts, goods, employees and customers.

77. Section 22.292 contains a statement concerning temporary structures:

"Temporary structures" means the following words and terms shall have the meaning shown
herein: . . . .

Membrane Structure. An air-inflated, air-supported, cable or frame-covered structure as


defined by the International Building Code and not otherwise defined as a tent. . . .

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,

means An air-inflated, air-supported, cable or frame-covered structure as defined by the

International Building Code and not otherwise defined as a tent.

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78. The membrane cover is not a building. The Zoning Ordinance 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 is permanently

affixed to the land.

79. Staff agrees that the membrane is not permanent.

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

for a zoning violation.

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

equipment as well as tents. Using a backdoor International Building Code amendment to

eliminate membrane structures as allowable recreation equipment or to otherwise zone them out

of Elmhurst is illegal because there is no adequate notice, proper hearing or recommendation.

82. Reliance on the International Building Code definitions relating to certain

membrane structures completely ignored the express exemption from the definition of

membrane structure of tents in the Zoning Ordinance

83. Membrane Structure is defined under a discussion of temporary structures in

Section 22.292. The term itself and the category under which it falls include the term structure.

Under Section 22.292, a structure is a combination of material to form a construction that is

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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followed by the words or part thereof. All of these listed items are within a class of

construction that protects people, property or animals, not a garden cover.

84. The Hearing Officers decision was contrary to law and clearly erroneous.

85. The Hearing Officer ignored the evidence.

86. The Hearing Officers decision effectuated an unconstitutional amendment to the

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

just under the circumstances.

COUNT TWO: THERE IS NO VIOLATION OF SECTION 24.04(1)(IBC SECTION 3102)


OR SECTION 24.05, SECTION 2, PARAGRAPH 46 (AMENDED IBC, SECTION 3102.0)

87. Plaintiffs incorporate Paragraphs 1-86 of this Complaint in this Paragraph 87 of

Count Two as though the same allegations are restated in their entirety herein.

88. The Hearing Officer incorrectly found a violation of a purported amendment to

the International Building Code which adds Section 3102.0: Membrane Structures shall not be

permitted.

89. There is no definition of membrane structure in the International Building

Code.

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90. Section 201.4 of the International Building Code provides: Where terms are not

defined through methods authorized by this section [Section 201], such terms shall have

ordinarily accepted meanings such as the context implies.

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

is a building before exempting tents from the scope of membrane structures.

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

supporting or sheltering and use or occupancy before it qualifies as a Membrane Structure

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

humans in the membrane at issue.

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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that is as tall or taller than the membrane cover in this case. Swimming pools have membrane

covers. Tents have membranes above and below their frames.

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

just under the circumstances.

COUNT THREE: THE COURT SHOULD REVERSE THE HEARING OFFICERS


FINDING OF A LOT COVERAGE VIOLATION

97. The City never charged Plaintiffs with a violation of the 30% maximum lot

coverage regulation in Section 22.90(e).

98. In a clear example of prejudice arising from ex parte communications, and in

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

installed over the garden plots.

99. "Lot coverage" means the area or portion of the lot occupied by buildings.

(Zoning Ordinance, Sec. 22.292)

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

is permanently affixed to the land. (Zoning Ordinance, Sec. 22.292)

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101. As noted in Paragraphs 19-26, 38-39, 42, 55-72, and 78-79, above, the membrane

is not a building:

a. It is not permanently affixed to the land;

b. It has no purpose relating to support, shelter, protection, or enclosure of persons,

animals, chattels, or property of any kind;

c. It is recreation equipment.

102. Paragraph 4 of the Hearing Officers final decision arose with no notice

whatsoever to the Plaintiffs.

103. The City never charged a violation of Section 22.90(e).

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

confirmed that there was no violation of the lot coverage restriction.

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

conclusively addressed this issue at hearing.

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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that Plaintiffs may recover their costs, as well as enter such other and further relief as deemed

just under the circumstances.

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

membrane in the future.

Dated: March 24, 2017 Respectfully submitted,

Mark W. Daniel NICOLE VIRGIL and DAN VIRGIL


DANIEL LAW OFFICE, P.C.
17W733 Butterfield Road, Suite F
Oakbrook Terrace, Illinois 60181 By: _/s/ Mark W. Daniel____________________
(630) 833-3311 Their Attorney
DuPage Attorney No. 246198

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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TRANS# : 4001315
2017MR000400
FILEDATE : 03/23/2017
Date Submitted : 03/23/2017 09:40 PM
Date Accepted : 03/24/2017 09:01 AM
AMY TEELING

2017MR000400

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TRANS# : 4001315
2017MR000400
FILEDATE : 03/23/2017
Date Submitted : 03/23/2017 09:40 PM
Date Accepted : 03/24/2017 09:12 AM
AMY TEELING
2017MR000400

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TRANS# : 4001315
2017MR000400
FILEDATE : 03/23/2017
2017MR000400 Date Submitted : 03/23/2017 09:40 PM
Date Accepted : 03/24/2017 09:12 AM
AMY TEELING

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2017MR000400 TRANS# : 4001315
2017MR000400
FILEDATE : 03/23/2017
Date Submitted : 03/23/2017 09:40 PM
Date Accepted : 03/24/2017 09:13 AM
AMY TEELING

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Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857
Document received on 2017-03-23-21.40.05.0 Document accepted on 03/24/2017 09:22:45 # 4001315/17043697857