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File #: PZ 23--026    Version:
Type: Variance Status: Passed
File created: 11/20/2023 In control: City Council
On agenda: 1/16/2024 Final action: 1/16/2024
Title: Variance Request. To vary section 4-235 to allow accessory use of parking lot, and Table 2-4 to allow an accessory building to be located within the required minimum side and rear setbacks. The property is located at 3982 Austell Powder Springs Road, within land lot 905 of the 19th District, 2nd Section, Cobb County, Georgia. PIN: 19090500190.
Code sections: Sec. 4-235 - Accessory uses of parking lots and loading areas., Table 2-4 - Dimensional Requirements for Mixed Use and Non-residential Zoning Districts
Attachments: 1. Executed PZ 2023-026 Motion to Approve, 2. Variance Request Redacted, 3. Site plan, floor plan, shed exterior.
Related files: PZ 23--027, PZ 23--018, PZ 24-015

CASE NUMBER:   PZ 23-026

APPLICANT: Dylon Holmes, Total Rage ATL, LLC.

VARIANCE: To vary section 4-235 to allow accessory use of parking lot, and Table 2-4 to allow an accessory building to be located within the required minimum side and rear setbacks.

LOCATION: 3980 and 3982 Austell Powder Springs Road, Powder Springs, GA

ZONING:    CRC                            ACRES:  2.14                      PIN: 19090500180 and 19090500190

 

Staff Recommendation:  Approval                                                               Planning and Zoning:

 

BACKGROUND:  Mr. Holmes proposes to operate a virtual reality (VR) game room, within a 280-sf accessory building, located in the parking lot of the Food Truck Park. The applicant has requested to o add the game room use to the conditions of approval of PZ23-018, July 17, 2023.

 

Mr. Holmes requested zoning verification and was denied for the proposed use while the shed was located at Arts for the Harp, on New Macland Road. He subsequently relocated the building to the food truck park without seeking zoning approval prior to the relocation. The zoning verification request after the fact was also denied at the food truck park, where the building currently sits.

 

The reason that the VR game room use is currently not allowed at the food truck park is because the stipulations of approval for the food truck park didn’t not include it. Stipulation #2 detailed what was allowed:

The special use approval is for the food truck park, outdoor storage of food trucks, and the use of a modified shipping container for a point of sale.

 

The Unified Development Code’s table 2-3 provides that, in the CRC zoning district, Indoor recreational facility is a permitted use. 

 

The Cobb County Fire Marshall’s Office (FMO) has approved the use of the accessory building, with a maximum occupancy of 5 persons. (Figure 4)

 

Mr. Holmes signed an agreement of permission to use the property. The 14 x 20 accessory building occupies approximately 2 parking spaces on the 3982 side of the property. There are a combined 58 parking spaces on both lots that will be available for the operations (10 for Food Trucks and 48 for visitors).

 

Additionally, Mr. Holmes has requested to vary the rear and side setbacks for the structure. The Unified Development Code’s table 2- provides that, in the CRC zoning district, accessory building greater than 144-sf must be setback 40-feet and 15-feet from rear and side setbacks, respectively. The current location encroaches into both the rear and side setbacks.

 

The owners of the building still utilize a portion of the building for storage of surplus goods related to the business that previously operated there - Kathy’s Overstock. This storage use is not expected to impact parking availability at the property. Storage is not permitted in the CRC zoning district. This use was previously approved as a special use for used merchandise retail sales, but said approval has expired. This use is subject to code enforcement.

 

 

 

SURROUNDING AREA: Please see Figure 1-Zoning Map; Figure 2: Site plan; Figure 3: accessory building exterior; and Figure 4: floor plan.

 

Figure 1. Zoning Map

Figure 2. Site Plan. Accessory building’s approximate location marked with red rectangle.

 

Figure 3. Exterior of Accessory Building.

Figure 4. FMO Approved Floor Plan

 

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 no special site challenges related to size, shape or topography. The parking lot on the subject lot is close to the rear property boundary, resulting in the sheds placement encroaching into the rear setback.

 

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.

 

Other properties in the area are required to comply with the UDC’s setback provisions for accessory structures greater than 144-sf.

 

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.

 

Other properties in the area are allowed to have accessory buildings, provided they meet the minimum setback requirements.

 

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.

 

The variance will not be injurious to general welfare. The location of the shed occupies approximately 2 parking spaces and leaves sufficient room for vehicular circulation in the parking lot isles.

Additionally, the property adjacent to the rear is a cemetery so any nuisance generated will not cause a disturbance.

 

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

 

The special circumstances are the result of the applicants’ actions. He relocated the shed to the subject site after being denied zoning verification at New Macland Road. He sought approval only after the shed was relocated.

 

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 be required to allow the accessory building to remain in its current location.

 

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.

 

Commercial indoor recreation is allowed by right in the CRC zoning district.

 

 

 

 

STAFF RECOMMENDATION:  APPROVAL, with the following conditions:

 

1.                     Approval of the variance requests to section 4-235 to allow accessory use of parking lot, and Table 2-4 to allow an accessory building to be located within the required minimum side and rear setbacks.

 

2.                     The applicant shall submit plans to the Cobb County Fire Marshal’s Office to initiate the Certificate of Occupancy process.

 

3.                     The applicant shall submit an Occupational Tax Certificate application to the Community Development.

4.                      Should the special use PZ  23-027 no longer be valid or renewed the shed is required to be removed within 30 days of the discontinuance of the special use.

5.                      Should the shed be determined as vacant, as evidenced by no activity and/or nonrenewal of occupational tax certificate, the shed shall be removed within 30 days of said determination.