First reported 10/16/2009 2:14 p.m.

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An Italian restaurant on Madison Street made popular by its creative and energetic chef went too far in building what was supposed to be an outdoor beer garden, according to village officials. But for taking the project well beyond everyone’s expectations, the restaurateur likely won’t face any sanctions.

In July, Gaetano DiBenedetto won approval from the village council to install a patio to the rear of his restaurant at 7636 Madison. In the proposal presented to the council, the 16-foot by 25-foot space would be surrounded by a cinderblock wall, and a peaked roof supported by corner posts would provide patrons with some protection from the elements.

Instead, the restaurateur built – and the village signed off on – a fully enclosed addition to his property, complete with vinyl siding and windows.

Village Administrator Tim Gillian and Commissioner Mike Curry, who oversees the building department, agreed that the project went too far. However, the council’s approval was strictly to allow DiBenedetto to eliminate two parking spaces where the patio would be built. The structure doesn’t violate any local ordinances, according to Gillian, though it’s clear the restaurant has built an expansion – not an outdoor patio.

“At the end of the day, what was built there is to code,” Gillian said. “It’s kind of a no-harm, no-foul.”

When Gillian assumed the administrator’s position in mid September, he ordered an immediate halt on the construction, he said, realizing its scope went beyond what was approved. Over the next several days, Gillian said, he made sure that building inspectors checked the electrical work, the heating system and other facets of the construction to ensure they were up to code. Then, retroactively, DiBenedetto submitted new paperwork detailing the scope of the project.

Procedurally, said Gillian, the building department should have done a better job following the work. He suggested the village shoulders some blame for letting the construction go as far as it did, which makes it difficult to punish DiBenedetto.

“It gets tough after a guy invests $20,000 or $30,000 in a project and the building department has gone along with it, and then it gets to my desk, to tell him to tear it down when we might have some culpability,” Gillian said.

DiBenedetto downplays the changes made to the patio, and said the roof and the vinyl siding were the only modifications. The decision to enclose the structure was actually encouraged by village inspectors, he said.

“It is nothing different from what was approved before,” DiBenedetto said in a phone interview Thursday. “There was a second set of drawings than what was presented before. The roof is a little bit different.”

Gillian acknowledged he is not familiar with exactly how the patio transformed into the structure that was built, and said he could not confirm whether the municipality suggested changes to the construction.

The enforcement of local regulations is focused primarily on safety, said Curry, rather than on punishing scofflaws. This building is safe, he said, and assuming it was not the restaurant’s intent to deceive the municipality, no sanctions or fines would be levied. The commissioner described a process for determining an applicant’s intentions that involved interviewing contractors, property owners and building inspectors. Though such an effort could sap the building department’s resources, Curry said that process would be more appropriate than handing out fines for violations and setting a tone that projects must adhere to the established guidelines.

“I believe everyone’s innocent until proven guilty,” Curry said about enforcing the process. “I’m not going to persecute innocent people. I think that’s wrong.”

The commissioner said that issuing fines would turn the building department into a “cash cow” for the village and it is not his intention to generate revenue for municipal coffers.

Both Curry and Commissioner Mark Hosty escaped sanctions recently when building department officials discovered renovation projects at their respective homes went beyond the scope of what had been permitted. No sanctions have been discussed regarding the restaurant’s patio project, Gillian said.