City of Powder Springs - File #: PZ 22--026

Date	Ver.	Action By	Action	Result	Action Details	Meeting Details	Video
9/19/2022	1	City Council	approved	Pass	Action details	Meeting details	Not available
8/29/2022	1	Planning & Zoning Commission			Not available	Meeting details	Not available
8/11/2022	1	Planning & Zoning Commission			Not available	Meeting details	Not available

PZ 22-026. Vineyards Subdivision: Non-conforming privacy fences at New Macland frontage.

APPLICANT: City Initiated Variance, Special Use and Change in Zoning Conditions

VARIANCE: To vary UDC Table 4-1 to increase the maximum allowed height of front yard privacy fences from 3-feet to 6-feet. To vary UDC 12-3 (e) which prohibits encroachment of structures into buffer areas.

SPECIAL USE: UDC Table 4-1 Provides that front yard fences require special use approval.

CHANGE IN CONDITIONS OF ZONING: Conditions of rezoning established 20’ undisturbed buffer at the perimeter of the subdivision.

LOCATION: 4184 and 4185 Lilycrest Way, within the Vineyards Subdivision, privacy fences that front sections of New Macland Road, within land lot 651 of the 19th District, 2nd Section, and Cobb County, Georgia.

ZONING: MDR PINs: 19065100810 and 19065100800.

Staff Recommendation: APPROVAL. Planning and Zoning Recommendation: APPROVAL.

BACKGROUND: The Unified Development Code defines the subject residential properties as double frontage lots. The area the homeowners consider a rear yard, is by definition a front yard for the purpose of zoning regulations, including fence location and heights. The UDC provides that fences are not allowed in front yards, except with special use approval and cannot exceed 3-feet in height. Additionally, an original condition of rezoning established a 20-foot undisturbed buffer at the perimeter of the Vineyards Subdivision. The city is initiating the referenced zoning actions to bring these privacy fences into legal conformity.

2019	4185 installed a fence in 20-foot undisturbed buffer without a design review, by previous owner.
2020	4184 installed a fence between the existing shrubs and evergreens of the buffer landscaping (figure 2).
2020	New owner at 4185.
2022	4185 relocated side fence and extended a section at the New Macland frontage (figure 1).
2022	Code enforcement noticed the work and took corrective action at 4185.

The Vineyards Subdivision was rezoned from R-20 to MDR on May 16, 2005, for the development of 53 single family residences. On November 2, 2009, City Council approved a change in zoning conditions (Appendix I) at the request of the then owner who wished to modify or eliminate some of the previous stipulations to sell the site to a new developer. The owner indicated that there was a potential homebuilder interested in the purchasing the property contingent upon approval of the then requested modified conditions and variance requests. 4184 Lilycrest Way was built in 2013, and 4185 Lilycrest Way was completed in 2019.

The required perimeter buffer is shown in figure 3. The original rezoning condition #11 provided that:

There shall be a natural undisturbed buffer, supplemented by evergreen plant materials, as appropriate, along the rear lot line of every perimeter lot within the proposed subdivision. This perimeter buffer shall be a minimum of 20' in width.

On August 18, 2014 Council approved a change in zoning conditions (PZ 14-027) for 10 specific lots (1-6, 8, 25, 31-32) at the Vineyards Subdivision to resolve a similar issue caused by homeowners disturbing the buffer by removing trees and/or installing privacy fences within the buffer area along the property line. The property owners were unaware of the undisturbed buffer provision until the received code enforcement warnings for their buffer violations. The conditions of that approval were:

Approval to (1) delete the condition of approval that requires the covenants to contain a provision requiring a twenty foot undisturbed buffer on all perimeter lots; (2) for the above identified lots, modify the condition that required a twenty foot undisturbed buffer and instead allow encroachment into this buffer using one of the following methods: (a) owner may place or retain the privacy fence at a location on the property selected by the property owner on the condition that the property owner submit to staff, within 60 days of this approval, a landscape plan for the replanting of ten feet of the buffer area by March 1, 2015, said landscape plan to include a mix of evergreen trees and shrubs of a species approved by staff to be planted in two staggered rows or (b) owner may place or relocate a privacy fence 5 feet from the rear of the property line and replant said five feet of the buffer area outside of the fence location by March 1, 2015 with a mix of evergreen trees of a species approved by staff.

Figure 1. Existing and new conditions. White: Existing fence at 4184. Red: Fence at 4185. Yellow: New installation and relocation of existing side fence line.

Figure 2. Vineyards at New Macland Road. Left: 4184 Lilycrest Way. Right: 4185 Lilycrest Way.

Figure 3. Recorded Plat. Vineyards Subdivision. Yellow: 20’ Undisturbed Perimeter Buffer.

ANALYSIS:

The application was reviewed against the following criteria:

Any applicant requesting consideration of a variance to any provision of this development code shall provide a written justification that one or more of the following condition(s) exist. The governing body shall not approve a variance application unless it shall have adopted findings that one or more of the following conditions exist:

1. There are extraordinary and exceptional conditions or practical difficulties pertaining to the particular piece of property in question because of its size, shape or topography that are not applicable to other lands or structures in the same district.

The lots are double frontage lots, with the rear of the structure facing New Macland Road, which is classified as an arterial road by Cobb County:

Arterials Roadway: A street or road whose primary function is to carry through-traffic over relatively long distances between major areas of the county, or across the county, while retaining a secondary function of providing access to abutting land.

These properties are located at the perimeter of the subdivision, and he homeowners installed the 6-foot wooden privacy fences to create separation and provide privacy from the arterial roadway. This separation can also be created using landscaping.

There are no extraordinary difficulties pertaining to the natural attributes of the lots.

2. A literal interpretation of the provisions of this development code would effectively deprive the applicant of rights commonly enjoyed by other properties of the district in which the property is located.

A literal interpretation would deprive the applicant of the ability to place a privacy fence at the rear of their property, which is commonly practiced and enjoyed by many homeowners of detached single-family residences that have rear yards. However, the lots face New Macland Road and privacy fence is visible from the road and at the entrance to the city, and therefore the lots do not have a rear yard.

3. Granting the variance requested will not confer upon the property of the applicant any special privileges that are denied to other properties of the district in which the applicant’s property is located.

Granting this variance would allow the subject properties the privilege of allowing the encroachment of the existing privacy fence within the protected buffer areas. This privilege is not extended to others in the district.

4. The requested variance will be in harmony with the purpose and intent of this development code and will not be injurious to the neighborhood or to the general welfare.

A stated intent of the development code, as it relates to this matter, is to “maintain the integrity and individual character of established communities.” The existing fences will not be injurious to general welfare, however, there is reason to believe that a section of the rear fence line at 4185 Lilycrest is outside of the boundaries of that property. The code does not allow a private fence in the right-of-way, the fence will need to be relocated. The Vineyards Subdivision HOA has voiced opposition to that potential encroachment outside of the property line. The current homeowner has subsequently removed the gate, but and the remnants of a gravel driveway still exists from the previous owner of the property. Gravel and a gate are not permitted along New Macland Road, and shall be removed.

A survey has been requested but has not yet been provided to staff to confirm that the location of the fence is completely within the property lines. A visual inspection of aerial images indicates that the fence is likely outside of the property lines.

5. The special circumstances are not the result of the actions of the applicant.

This request is being brought forward by the city. The special circumstances are the result of the current homeowner of 4184 Lilycrest, and the previous and current owners of 4185 Lilycrest. The fences were originally installed without design review approval from the Community Development Department, however, the current owner of 4185 sought approval to relocate her fence line. Staff advised then that a survey should be obtained to ensure that the fence is entirely within their property. The design review was erroneously approved, resulting in the applicant worsening the conditions created by the previous owner.

6. The variance requested is the minimum variance that will make possible the proposed use of the land, building, or structure in the use district proposed.

This is the minimum variance that will bring the subject properties into legal conformity.

7. The variance shall not permit a use of land, buildings or structures, which is not permitted by right in the zoning district or overlay district involved.

The variance will permit a structure that is not allowed by right. The fences are in the front yards since the rear of the subject properties fronts a right-of-way, which is not allowed except with special use approval and at a maximum height of 3-feet. Additionally, the variance, special use, and change in zoning conditions will allow 6-foot-tall fences to encroach into the protected buffer area.

Consolidated Analysis for Change in Conditions and Special Use.

The buffer was requested during the original rezoning process to mitigate the impact of this denser Vineyards development on the surrounding less dense existing single-family parcels. While the buffer has been disturbed by the installation of privacy fences, the objectives of the buffer to provide an opaque visual screen to the surrounding properties and tree preservation, can still be achieved with a narrower buffer if the buffer contains trees and a structural screen. Typically, buffers do not exist between residential uses; they are however required or used between dissimilar uses. Where buffers are required, the UDC allows a reduction in the required width if a structural barrier like a fence or berm is installed (unless conditioned otherwise during a zoning action). A minimum buffer is still required. In this case, reducing the buffer to 7-feet and requiring the planting of a mix of evergreen trees within that buffer will provide a visual screen to the neighboring properties and provide trees important to the community while at the same time provide the homeowners with their desired separation and screening from the arterial roadway.

Allowing the special use of the fence in the front yard is consistent with the screening intent of the 20-foot landscaped buffer originally established at zoning. The change in zoning conditions to remove the undisturbed buffer and supplement with a physical screen and landscaping applies only to the addresses/lots referenced.

STAFF RECOMMENDATION: Staff recommends APPROVAL, with the following conditions

1. Approval of change in conditions of zoning to allow encroachment of a fence within the 20-foot undisturbed buffer for 4184 and 4185 Lilycrest Way. The homeowner is required to install landscaping 7 feet outside the fence, and 13 feet inside the fence, at the New Macland Road frontage.

2. Approval of the variance to increase the maximum allowed height of a front yard fence from 3-feet to 6-feet.

3. Approval of the special use request to allow a fence in the front yard.

4. The fence at 4184 Lilycrest Way was installed between the existing buffer landscaping and is set back at various distances. The minimum distance to the property line is 7-feet. This fence is approved as is.

5. The fence at 4185 Lilycrest Way is outside the property line at the New Macland Road frontage, and shall be relocated to a minimum distance of 7-feet inside the property line. To be in compliance, the homeowner shall:

a. Provide a drawing from a fencing contractor showing location of fence at least 7 feet from the property line at the New Macland Road frontage, and visually consistent with the neighboring fence for design review and approval.

b. Provide a landscaping plan matching the subdivision landscaping in the 20-foot undisturbed buffer. Said landscape plan to include a mix of evergreen trees and shrubs of approved species, as specified in Appendix 12A of the Unified Development Code.

c. Remove gravel driveway, and stabilize area with grass seed/straw or sod.

d. Professionally install fencing and landscaping per the approved design review and landscaping plans.

e. The side fence line is allowed to remain as is.

f. If not completed within 6 months, this approval is null and void and the fence is subject to code enforcement action for removal.

6. If measurements and property lines cannot be confirmed on site, a survey may be required by the community development director. Both homeowners shall be in compliance with the zoning stipulations within 6 months of this approval. If not provided, the fences shall be removed and subject to code enforcement action. The fences shall be maintained and not fall into disrepair. Once the fences are removed or not maintained, this approval is no longer valid, and new application is required.

APPENDIX

I. Change in Zoning Stipulations, approved November 2, 2009.

II. Change in Zoning Conditions. Approved August 18, 2014.