Comments on the McHenry County Conservation Design Ordinance

To: Members of the Land First Committee                                                 July 7, 2008 

From:  Lisa Haderlein, Executive Director, The Land Conservancy of McHenry County; Pat Kennedy, President, Alliance for Land Agriculture and Water (ALAW); Jane Collins, ALAW; Kim Willis, Land Use Committee Chair, The McHenry County Defenders; Ersel Schuster, ALAW; Emily Berendt, ALAW.  

Re: Comments on the McHenry County Conservation Design Ordinance. 

We appreciate the opportunity to convey our comments about the County Conservation Design Ordinance (CD Ordinance) during this first review since its passage. We have several concerns and suggestions regarding the ordinance, its integration with the zoning and subdivision ordinances and its implementation.  

We believe that the underlying philosophy and intent of the CD Ordinance is sound, but that the CD Ordinance in its present context cannot achieve its stated purpose.  We think it is premature to implement the CD Ordinance until some threshold information is compiled and available. In addition, we see both substantive and procedural weaknesses in the CD Ordinance, and inconsistencies between it and the County Subdivision Ordinance and the County Zoning Ordinance that permit arbitrary application and undermine the purpose of the CD Ordinance itself.   

1. We respectfully request a six-month suspension of implementation of the CD Ordinance.  In support of our request we offer the following observations and suggestions.  

a.  Application of CD principals would be most effective if preceded by identification of farmland and open space areas to be preserved and a commitment to strict enforcement, as is being done in the County’s 2030 planning process.   

b. Application of CD principals would be most effective if preceded by identification of groundwater recharge areas (both functional and compromised areas), with a concurrent commitment to preserving functional areas and where possible, rehabilitating compromised areas, as is being clarified through the County’s Groundwater Task Force’s work.   

c. Application of CD principals would be most effective if preceded by identification of locations for and installation of monitoring wells to determine and track sustainable aquifer levels, as is being implemented by the McHenry County Water Resource Manager.  

d. A six-month suspension of implementation of the CD Ordinance would support the objectives of a, b and c above by the respective bodies charged with these tasks.  

2. During the six-month suspension of implementation, we suggest that steps be taken to correct substantive and procedural problems with the CD Ordinance itself, and that the CD Ordinance, the Zoning Ordinance and the Subdivision Ordinance be reviewed and coordinated.  We submit the following: 

a. Proper application of the CD Ordinance should not result in dramatic increases in the number of lots possible on a property when compared to standard development. However, this is currently happening. Revisions to the CD standards, including the density bonus percentages, could be made to prevent this in the future.   

b. Land First Committee members in individual meetings and in the public hearings on the CD Ordinance repeatedly emphasized that the CD Ordinance is not a consideration in determining the appropriateness of the underlying zoning.  Strict separation of zoning issues from CD issues during the zoning approval process must be mandated through the zoning ordinance.  A recent petition approval by the Zoning Board was inappropriately based in large measure on the fact that the developer intended to use conservation design under the CD Ordinance in developing the parcel. It is very unlikely that the parcel would ever have been submitted for rezoning – let along approved (by the ZBA) - without the CD Ordinance. 

c.  The current process of zoning first, conservation design second, is backwards. To truly carry out the objectives of the County Board Resolution supporting the creation of a “Land First Initiative”, the required inventory and assessment of applicable “triggers” in the CD Ordinance and the NRI from Soil & Water should be undertaken as a FIRST step. Rezoning first results in densities much higher than would be permitted under conventional development. If rezoning has to come second, after a conservation inventory, then densities will be compatible with what has to be conserved. 

d.  One hallmark of conservation design is to minimize fragmentation of protected natural features.  Therefore protected features should not be incorporated into private lots, but set aside as a whole in separate out lots.  The subdivision ordinance should be amended to make this a requirement. 

e. The CD Ordinance is being misused as a vehicle for spot zoning, resulting in   subdivisions being dropped in the middle of farmland, far away from municipal infrastructure and services, again resulting in fragmentation of farmland, negative impacts on the agricultural industry, and a disregard for the county policy of requiring 40 acres per residence in agricultural, unincorporated areas.   

f. The process for all plats, including CD plats, is streamlined through the county Planning and Development Department, which is limited to technical review. Currently, this review is completed by individuals who have little or no knowledge of conservation design practice, basic ecology or natural resource planning. “Meeting” the technical requirements results in approval of a Sketch Plan by the P&D Department. The developer then proceeds with large expenditures of time and money before the plat ever gets to the County Board level for review. Approval of conservation design plats should be based on more than just technical compliance. All concerned would be better served if the County Board exercised its discretion to determine whether or not the plat meets the philosophy and intent of the ordinance at the beginning of the process (as is done when a subdivision is proposed in a municipality).   

g. Alternatively, initial review of CD plats should be done in a public forum by a specially appointed review committee trained in CD principals and charged with applying the ordinance accurately and consistently.

3. During the six-month suspension of implementation we request the Land First Committee to undertake educational outreach on the intent, philosophy and procedures of the CD Ordinance at all levels of implementation.  We observe that: 

a. The Land First Initiative Committee could take the opportunity of a six-month suspension of implementation to provide education to all levels of local government involved in the review and approval process of CD plats, including P&D Staff, the Zoning Board and the County Board.  This would avoid situations like the one above where the County Zoning Board of Appeals incorrectly considered a developer’s stated intent to use conservation design under the CD Ordinance in voting to approve a recent zoning change that would not have met the requirements for approval without that consideration.   

b. Planning and Development Department staff is in a state of flux at this time.  Since any staff training on philosophy and implementation of the CD ordinance was done by the previous department head, it would be appropriate at this time to suspend implementation until the new department head is in place. At that time, training can occur under a new Director’s leadership.  

c. In conjunction with other training and education efforts, outreach to municipalities should also be considered by the Land First Committee.  Good will and cooperation from municipalities can be generated with presentations that enhance awareness of the philosophy and intent of the CD Ordinance.  Municipalities can be encouraged to adopt conservation design themselves.

 d. Outreach to developers and their consultants should also be undertaken. Proper training for developers, their consultants and their attorneys in the application of the CD Ordinance will facilitate the approval process for them, save them time and money, and ensure that all parties involved are operating under the same guidelines. 

4. If the Land First Committee cannot effect a six-month suspension of implementation, and the above steps cannot be taken, we request that the Conservation Design Ordinance be repealed immediately and given no further force or effect.  We believe that conservation design is better suited to urban implementation where municipal services are available and higher densities anticipated. As currently constructed and implemented, Conservation Design does not serve the interests of the majority of county residents who have stated that preservation of open space, farmland, the agricultural industry, our precious water resources and our rural way of life are the most important issues before the community today.

      Thank you for your consideration of our requests.