Executive Summary

The applicant is requesting an exception from § 74-8.8: Sidewalks and pedestrian/recreational paths requirement for the Emstan Hills Road Certified Survey Map (CSM-06-22), approved by the Village Board on June 27, 2022. § 74-2.9: Exceptions and modifications permits the Plan Commission to waive or modify requirements of Articles VII and VIII when exceptional circumstances or undue hardship exist and the required criteria are met. 

When the CSM was approved, the Village's sidewalk fee-in-lieu provisions did not apply to subdivision streets with an urban cross-section. Ordinance 17-2025, adopted February 23, 2026, amended § 90-420.70: Sidewalks and pedestrian circulation expanded the fee-in-lieu provisions and made that option available in situations such as this one. Under the current ordinance, those payments are placed in a fund used for new or upgraded pedestrian and bicycle improvements. 

The applicant's engineer states that the approved bioswales are located where the sidewalk would normally be constructed. Installing the sidewalk within the right-of-way would interfere with the approved stormwater design. Moving the sidewalk around the bioswales would require new easements and place portions of the sidewalk on the adjoining residential properties. Staff agrees with the applicant that these conditions meet the exceptional circumstances and property rights criteria of § 74-2.9. 

§ 74-2.9: Exceptions and modifications.

Where, in the judgment of the Plan Commission, it would be inappropriate to apply literally the provisions of Article VII and VIII of this Ordinance because exceptional or undue hardship would result, the Plan Commission may waive or modify any requirement to the extent deemed just and proper. Such relief shall be granted without detriment to the public good, without impairing the intent and purpose of this Ordinance or the desirable general development of the community in accordance with an adopted comprehensive plan or component thereof. No exception or modification shall be granted unless the Plan Commission finds that all the following facts and conditions exist and so indicates in the minutes of its proceedings:

1. Exceptional circumstances. There are exceptional, extraordinary, or unusual circumstances or conditions where a literal enforcement of the requirements of this Ordinance would result in severe hardship. Such hardships should not apply generally to other properties or be of such a recurrent nature as to suggest that this Ordinance should be changed.
2. Preservation of property rights. That such exception or modification is necessary for the preservation and enjoyment of substantial property rights possessed by other properties in the same vicinity.
3. Absence of detriment. That the exception or modification will not create substantial detriment to adjacent property and will not materially impair or be contrary to the purpose and spirit of this Ordinance or the public interest.
4. A majority vote of the quorum of the Plan Commission shall be required to grant any exception or modification of this Ordinance, and the reasons shall be entered into the minutes of the Commission.

If the Plan Commission approves the exception and modification, the applicant must pay an in lieu of fee for the sidewalks per § 90-420.70(a)(1).

The staff recommend denial of the exception and modification to the approved condominium plat. The applicant did not present an "...exceptional, extraordinary, or unusual circumstances or conditions where a literal enforcement of the requirements of this Ordinance would result in severe hardship. Such hardships should not apply generally to other properties or be of such a recurrent nature as to suggest that this Ordinance should be changed."