ELMHURST – A lawsuit filed by an Elmhurst family whose hoop house was banned by the city is seeking to overturn that prohibition.
The suit filed March 23 in the 18th Judicial Circuit Court on behalf of Nicole and Dan Virgil asks the court to reverse the finding that their membrane structure violates the city’s building code and ordinances relating to temporary structures. The lawsuit also seeks to have the city cover the Virgils’ court costs.
The Virgils, who live in the 500 block of South Fairview Avenue, first made use of the structure in the fall of 2015 to cover their planting beds in the backyard so that they could grow vegetables during the winter time. After erecting it again in the fall of 2016, they were issued a notice that they were in violation of city ordinances.
The Virgils ultimately were instructed to remove the hoop house by Feb. 28 of this year or face fines. They complied with the order and the hoop house was removed Feb. 24.
A good portion of the Virgils’ lawsuit is devoted to two of the key issues of dispute between the Virgils and the city – whether their hoop house should be considered a building or “recreational equipment,” and which portions of the city code should apply as a result. The lawsuit asserts that it doesn’t meet the definition of a building because it’s not “permanently affixed to the ground.”
“‘Recreational equipment’ is an undefined term of the Zoning Ordinance that encompasses the membrane cover used in gardening,” the lawsuit states. “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.”
Lot coverage issue
The suit also disputes a determination by a hearing officer that the hoop house causes the Virgils to exceed the maximum allowed lot coverage of 30 percent. The city’s hearing officer, according to the lawsuit, claimed that the Virgils’ home and garage already constitute 30 percent coverage, and thus any additional coverage by the hoop house would automatically put them over the limit. The Virgils counter by saying the hoop house doesn’t count toward lot coverage because it’s not a building.
The Virgils further protest the finding that they violated the lot coverage restriction by noting that the allegation was not raised before the finding, and thus they never had an opportunity to dispute it before the hearing officer.
“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 Virgils’ lawsuit states.
Separately, the Virgils have encouraged the city to amend its ordinances to make it clear that hoop houses are legal. The City Council’s Development, Planning and Zoning Committee asked city staff members at its March 13 meeting to look into the issue with an eye toward referring it to the appointed Zoning and Planning Commission for further consideration.