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Winter gardening grows into thorny statehouse issue

Nicole Virgil, right, with a representative of Sustain DuPage outside her backyard hoop house in Elmhurst. From YouTube.

Nicole Virgil, right, with a representative of Sustain DuPage outside her backyard hoop house in Elmhurst. From YouTube.

SPRINGFIELD – It started with a suburban homeowner’s desire to keep growing food in her Elmhurst backyard throughout the winter but has blossomed into a thorny battle pitting residents and advocacy groups against local government leaders — all haggling over whether Illinois residents have “the right to garden.”

The three-year fight between the Elmhurst homeowner and the city’s government made its way to the Illinois Senate Wednesday as the local government committee mulled a statewide solution to the underlying dispute.

Sponsored by state Sen. Tom Cullerton, D-Villa Park, Senate Bill 1675 would allow Illinoisans, no matter in what municipality they reside, to construct temporary structures for gardening throughout the colder months, often referred to as “hoop houses.”

Hoop houses come in many shapes and sizes, but are generally foundationless structures enclosed by an opaque plastic membrane to keep in warmth and sunlight.

Nicole Virgil, a resident of west suburban Elmhurst, built such a structure in her backyard in the fall of 2015 to continue gardening throughout the winter.

Since then, the issue has ballooned into one over not just hoop houses, but the pre-emption of home rule powers that allow municipalities to dictate their own zoning and planning codes, among other things.

The roots of the issue

Less than a week after putting up the original hoop house, which at its apex stood about nine feet tall in an 11.5-by-32-foot rectangle, Virgil was visited by Elmhurst’s code enforcement department to address a neighbor’s complaint about the structure’s aesthetics.

“We were told then that as long as it’s temporary, we could keep it up,” Virgil said.

But in testimony Wednesday morning, Elmhurst City Manager James Grabowski disputed that claim and said the city “explained to them our code and why they couldn’t have it,” but allowed them to keep it up until 2016.

Photo of a hoop house on the web site of the Advocates for Urban Agricultures. https://auachicago.org

No records of the original conversation exist to prove either side correct, but Virgil denied she was told to take down the structure, although she did so anyway in April 2016 when winter ended and the temporary hoop house was no longer needed.

When she and her husband put it back up in the fall of that year, they were again approached by the city’s code enforcement department, this time with clear instructions to take it down.

Virgil says she was confused by this contradictory demand, and asked for the specific ordinance prohibiting the hoop house.

“It took a while, but they said we were breaking the mobile home code and the permanent building code,” Virgil said, adding that she did not comply with the city’s request because the hoop house was neither a mobile home nor a permanent structure.

Grabowski did not immediately respond to questions about this claim.

The matter then went to court, where two judges ruled twice in favor of the city, after which Virgil took the structure down.

But Virgil said because so many other temporary structures were allowed to stand in Elmhurst, she pursued the matter further, working to get the city to change the code used to ban the hoop house.

So starting in 2017, Grabowski said, the city discussed the matter at three city council meetings, five development planning meetings and three zoning and planning commission meetings.

That process, which Virgil says was riddled with non-responses and the denial to hear the matter in committee, ended in late 2018, when the Elmhurst zoning commission recommended that hoop houses be allowed, but with dimensions no greater than 100 square feet and six feet tall.

“You couldn’t buy a hoop house as small as they’re talking about. You couldn’t even stand up in it, couldn’t move much,” Virgil said, adding that such a small structure wouldn’t allow the proper thermal mass to grow food, anyway.

Regardless, the Elmhurst City Council voted against the recommendation and reaffirmed its ban on hoop houses in February 2019.

Controversy grows

That was when Virgil says she was approached by a supporter who owned a garden store in nearby Villa Park, who told her to go to Cullerton for a legislative solution to the issue.

From that point, SB 1675 was drafted by the Illinois Environmental Council to allow any Illinoisan to build a temporary hoop house structure on their property – not just in Elmhurst.

Environmental and food-growing advocates, including the IEC, Advocates for Urban Agriculture and the Illinois Stewardship Alliance, contend the bill protects the natural right of every Illinoisan to grow their own food, or “the right to garden.”

Opponents, including representatives of the city of Elmhurst and other municipalities, say the bill should not be in the state Legislature because it is strictly a local issue.

“This is an issue that should be determined locally,” said Brad Cole, executive director of the Illinois Municipal League. “When you pass a law, it affects everybody. Because one applicant was unhappy with a decision that went against her, it’s not a reason to change state law necessarily.”

Referencing the almost 1,500 witness slips in support of the bill, Virgil called that idea “absurd.”

“It’s not one person that wants it,” Virgil said. “I just happen to be the person who has the time, energy, wherewithal and skillset to advocate for it.”

While the bill would pre-empt home rule, groups backing Virgil call it necessary.

“Maybe this is something that gets resolved locally,” said Rebecca Osland, an attorney that does government relations for the Illinois Stewardship Alliance. “But then, if this issue starts popping up again, we’re going to have to come back to the table to ensure that people’s rights to produce their own food are protected.”

On the other side, more than 270 witness slips have been filed against the bill, mostly coming from people affiliated with municipalities and related organizations.

“We are deeply concerned regarding this bill and our local control over zoning and structures,” Grabowski said in Tuesday’s hearing. “The mayor and I feel that this issue should be resolved locally.”

Hope of such a resolution remains, according to Cullerton, who said he spoke to Elmhurst Mayor Steven Morley Tuesday night. Although Morley could not be reached on a question about what that resolution would look like, Cullerton said they plan to talk more during the week.

Virgil said Wednesday morning was the first she’d heard of a desire for resolution.

“I have no evidence that the City of Elmhurst would have talked to us about this at all, except for the fact that I’m standing in the Statehouse,” Virgil said. “The cities are upset that Elmhurst didn’t find a resolution and keep this issue in-house. Now that it’s at the state level, they feel the potential to lose what they think is some measure of operational control in their local governments.”

Wednesday’s committee meeting was subject matter only, so no vote was taken. But state Sen. Linda Holmes, D-Aurora, the committee chair, said she would prefer a local resolution so that SB 1675 does not come up again next week.

But if it does, said Democratic committee member Sen. David Koehler of Peoria, “I fully approve to make a motion to approve this.”