CASE NUMBER: PZ 22-014.
APPLICANT: Rosa Villegas-Torres
VARIANCE REQUEST: To vary Section 8-92 (e) related to drainage easement encroachment, and Table 2-2 of the UDC - side setback of accessory structure within R-15 zoned districts.
LOCATION: 3402 Sweetbriar Lane, within land lot 754 of the 19th District, 2nd Section, Cobb County, Georgia. PIN: 19075400140.
ZONING: R-15 ACRES: 0.35 ac PIN: 19075400140
Staff Recommendation: DENIAL Planning and Zoning Recommendation: APPROVAL.
BACKGROUND: A 144 sf shed was constructed without a permit, approximately 3 feet and 6 inches from the side property line. The shed was placed within the drainage easement and within the minimum side setback for an accessory structure. They were subsequently cited by code enforcement for the encroachment, and for work done without a permit.
A 24-inch corrugated metal pipe (CMP) runs through the drainage easement as part of the stormwater retention system (figure 2). The shed is built on top of the CMP. The CMP outlet recently needed repairs as the outlet pipe into the pond had detached from the pond wall. The city was able to conduct these repairs without impacting the shed.
Figure 1. Location of shed - denoted by red circle. Pembroke Pond and creek denoted in blue, located in the rear of property.
Table 1. UDC Table 2-2. Dimensional Requirements for Residential Zoning Districts.
|
ACCESSORY BUILDINGS and STRUCTURES OF 144 SQUARE FEET OR LESS IN FLOOR AREA |
R-30 |
R-20 |
R-15 |
MDR |
PUD-R |
|
Front (feet) |
NP |
NP |
NP |
NP |
NP |
|
Side (feet) |
5 |
5 |
5 |
5 |
|
|
Rear (feet) |
5 |
5 |
5 |
5 |
|
UDC Sec. 8-92 (e). Drainage Easements.
Drainage easements off the street right-of-way shall be clearly defined on the final plat and described within the deed of individual property owners affected, and such property owner shall keep the easement free of obstructions and maintain that part of the easement within the property owner’s boundary line so that free and maximum flow is maintained at all times.
Figure 2. Location of Drainage Easement between 3402 and 3402 Sweetbriar Lane.
Figure 3. Picture of Shed and drainage pipe.
SURROUNDING AREA: The subject property is located withing the Pembroke Subdivision where R-15 zoning prevails. There is a retention pond (figure 1) adjacent to the rear of the property, and a 20’ drainage easement (figure 2) equally shared by the subject property and the neighboring property to the south. Within the drainage easement is a 24” CMG that runs from the street to the pond and outlets into the said pond at the rear of the property.
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.
There are extraordinary circumstances related to this property. Pembroke Pond, shown as a blue area in figure 1, occupies a considerable portion of the back yard. Additionally, the lot is of an irregular shape with a dog leg section extending across the pond. The applicant has expressed that they have “a very small back yard” and this property.
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 not deprive the applicants of rights enjoyed by others in the area. The shed is located approximately 4 feet from the property line. If the shed was located greater than 10 feet from the property line, then there would be no encroachment into the 10’ drainage easement, nor into the 5’ minimum side setback for accessory structures of 144 sf or less.
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 the variance would confer special privileges not enjoyed by others. Even though the accessory structure is allowed by right within the zoning district, the UDC provides that it is not allowed within 5’ of the side property line and others in the district would have to comply with these provisions for the placement of a shed or other accessory structure.
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.
As it relates to this variance request, the unified development code is intended to maintain the integrity and individual character of established communities and settlements, and to prevent the encroachment of incompatible land uses within residential areas and preserve property values.
The applicant has improvised a French drainage system (figure 3) below the concrete at the side of the shed to promote water run off from the yard into the pond. The requested variances would not be injurious to the general welfare of the neighborhood. However, should major repairs be necessary to the CMP or any component of the drainage or retention system then the shed might have to be demolished to gain access to the area protected by the drainage easement.
5. The special circumstances are not the result of the actions of the applicant.
These circumstances are a direct result of the actions of the applicant. The shed was constructed without a permit and the applicant unknowingly located the shed within the 10’ drainage easement, and the 5’ side setback.
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.
The requested variance is the minimum that would allow the already existing shed. The encroachment into the drainage easement does not appear to pose a major threat to the CMP at this time but should repairs be required in the future the shed could potentially be in jeopardy for demolition.
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 12’ x 12’ shed is allowed by right in R-15 zoned districts, provided its construction is permitted and its location on the lot complies with the provisions of the UDC.
STAFF RECOMMENDATION: Staff recommends DENIAL of the variance request to Table 2-2 of the development code, to reduce side setback from 5’ to 4’ for accessory structures of area 144 sf or less, within R-15 zoned districts; and DENIAL of the variance request to allow encroachment into the 20’ drainage easement of which 10’ is on the applicant’s property.
Should approval be considered, staff proposes the following conditions:
1. The applicant shall hold harmless the city, the county, or any hired contractor or service provider should the shed need to be demolished, partially or entirely, for the purpose of accessing or repairing any portion of the drainage or retention system within the drainage easement.
2. The shed shall not be rebuilt in the current location should it be demolished, partially or entirely, for the purpose of accessing or repairing components of the drainage and retention system, or if said shed is destroyed by flood or other natural disaster.