CASE NUMBER: PZ 22-015
APPLICANT: MC New Macland Properties, LLC. Represented by Parker Poe Adams & Bernstein.
VARIANCE REQUEST: To vary Table 2-4 of the Unified Development Code related to lot dimensions and setback requirements for CRC zoned properties, and Section 4-415 (b).
LOCATION: 3215 New Macland Road, within land lot 725 of the 19th District, 2nd Section, Cobb County, Georgia.
ZONING: CRC ACRES: 0.0825 ac PIN: 19072500270.
Staff Recommendation: APPROVAL. Planning and Zoning Recommendation: APPROVAL.
BACKGROUND: The Property is an approximately 0.0826-acre (approximately 3,598 square feet) parcel zoned CRC. The Property was the subject of rezoning and special use applications in 2017 (PZ17-0008, PZ17-0009 and PZ17-011 collectively, the “Tower Applications”), the approval of which allowed for the construction, operation, and maintenance of the Existing Tower. At the time, of approval, there were some 21 conditions of approval required. Concurrent variances were approved with the Tower Applications in 2017 including UDC Sections 4-415(b) and (c) to reduce setback to residential property lines from 300 feet to 259.9 feet, to reduce the ten-foot-wide landscape buffer requirement to 7.5 feet in one area, and to allow existing vegetation to serve as a buffer.
The Existing Tower was constructed in accordance with all conditions, as evidenced by the City’s issuance of a certificate of occupancy for the Existing Tower. At the time of the Tower Applications, the Property was leased to the then applicant and tower developer and was part of a larger parcel that was approximately 4.3 acres (the “Parent Parcel”). Accordingly, when the special use for the Existing Tower was approved, setbacks were measured not from the leasehold property lines, but from the Parent Parcel property lines.
Applicant’s predecessor and the Parent Parcel owners merged the leasehold interest into a sale of the Property, effectively subdividing the Property from the Parent Parcel and, in doing so, unwittingly created a nonconforming lot within the CRC zoning district, since the tower now occupies the smaller subdivided lot as a principal use. The remainder of the parent parcel was subsequently rezoned to PUD-R (PZ 21-045 on 01/18/2022) and approved with conditions for the development of a townhomes. This variance request application is in response to following stipulation, included in the approval of the rezoning of the parent parcel:
The existing cell tower on the site does not meet the zoning stipulations of PZ 17-008. If a variance for this cell tower is applied for and denied within 60 days of this approval, a revised site plan may be required subject to Mayor and Council design review. If the owner of the cell tower does not apply for a variance within 60 days of approval of this application, the applicant of this application may proceed as approved. The owner of the existing cell tower may be subject to code enforcement action for failure to comply with zoning stipulations and the creation of a lot not meeting requirements of the CRC zoning district.
Table 1. UDC Table 2-4. Dimensional Requirements for Mixed Use and Non-residential Zoning Districts:
|
DENSITY AND LOT REQUIREMENTS |
MXU |
O-I |
NRC |
CRC |
CBD |
BP |
LI |
HI |
|
Minimum lot size (square feet) |
‡ |
15,000 |
20,000 |
20,000 |
None |
40,000 |
40,000 |
40,000 |
|
Minimum lot frontage (feet) |
‡ |
75 |
75 |
100 |
None |
50 |
100 |
100 |
|
Front Setback, minimum (feet) |
‡ |
40 |
40 |
40 |
None |
40 |
50 |
50 |
|
Side Setback, minimum (feet) |
‡ |
10 |
15 |
15 |
None |
20 |
20 |
20 |
|
Rear Setback, minimum (feet) |
‡ |
30 |
30 |
40 |
None |
30 |
40 |
40 |
|
Setback, minimum, abutting R zoning district |
‡ |
30 |
40 |
50 |
None |
100 |
110 |
120 |
UDC Section 4-415(b). Towers and Wireless Telecommunications Facilities. Performance and Construction Standards:
(b) Placement Restrictions. Towers occupying a lot as a principal use shall at minimum meet the minimum lot size and setback requirements for the zoning district in which the lot is located. Towers shall be a minimum of 300 feet from any residential zoning district. All towers shall be located at least one-half of their height in feet from any public right-of-way. When the tower is on leased property, the setbacks shall apply to the lot of record, not the lease boundaries.
SURROUNDING AREA: PUD-R zoning is adjacent on 3 sides, except to the south. The parent parcel was rezoned to PUD-R and included in the site for an approved 41-unit townhome development. Beyond the parent parcel, residential zoning districts (R-20 and MDR) prevails to the north and east. The West Cobb Plaza is adjacent to the south, and CRC zoning prevails to the south and west.
Figure 1. Mobile Communication Tower Lot at 3215 New Macland Road
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 current size of the Property is an extraordinary and exceptional condition that is not applicable to other lands or structures in the same district and that prevents full compliance with the UDC minimum lot size, frontage, and setback standards. In 2017, when the 170’ monopole wireless telecommunications tower (“Tower) was approved, the special use application indicated that the Tower site would be leased, thus, compliance with the minimum UDC requirements regarding lot size, frontage, and setback was measured against the larger parent parcel. When Applicant acquired the Property in fee simple, the minimum UDC requirements regarding lot size, frontage, and setback attached, but the lot dimensional nonconformities were not addressed. At this point, attempting to enlarge the Property to meet the 20,000 square foot requirement would present Applicant with exceptional practical difficulties.
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 of the development code would mean the removal of an existing, permitted and working communications tower that provides E911 and other vital services to this area of the City or, alternatively, forcing Applicant to attempt to negotiate the purchase of an at least 15,000 square feet of additional property and attempts to meet property requirements that have no bearing or rational reality to the use at hand, particularly when there are engineering studies and reports that reflect that the Existing Tower was designed to be located on a site that is as small as the Property is.
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 simply bring the Property to compliance with the UDC, and remedy an issue that was created by the sale of property rights and adversely is impacting
not only the Property but the ability of the neighboring property owner to develop according
to the most recent approved zoning. No special privileges that are denied to other properties of the district in which the applicant’s property is located would be conferred.
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 decision to grant the variance will ensure that the overall existing character of the area
will remain intact. The Property will maintain its approved and existing use as a monopole
wireless telecommunications tower improving the general welfare by serving area community members by providing wireless coverage and capacity. The requested variances will be in harmony with the purpose and intent of the UDC. On December 12, 2019, the Tower was issued a Certificate of Occupancy as a structure in compliance with the various ordinances of City of Powder Springs regulating building construction and use. Furthermore, the Existing Tower is a structurally sound and safe structure with the expected fall radius of no more than 28 feet.
5. The special circumstances are not the result of the actions of the applicant.
Applicant acquired the company which owned the Property and which acquired the leasehold and easement rights from the predecessor owner of the Parent Tract. The sale of the Property and the subdivision from the Parent Tract that created the special circumstances applicable to this Application were not the Applicant’s doing.
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 variances requested are the minimum to allow the Existing Tower to remain as constructed and the Property as used currently.
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 variances requested will not result in a new use. Applicant is not proposing a new use. Applicant intends to keep the current use as a wireless monopole telecommunications tower.
STAFF RECOMMENDATION: Staff recommends APPROVAL of the variances requested to bring the lot housing the wireless telecommunication tower into legal conformity, with the following conditions:
1. All previous stipulations and conditions shall remain in effect, except for those stipulations and conditions modified herein.
2. The variance requests to the following sections of the development code are approved:
UDC Table 2-4. Dimensional Requirements for Mixed Use and Non-residential Zoning Districts:
I. Reduce lot size from 20,000 square feet to 3,600 square feet.
II. Reduce lot frontage requirement from 100 feet to 20 feet
III. Reduce the setbacks as follows:
a. Front setback from 40 feet to 30 feet.
b. Rear setback from 40 feet to 30 feet.
IV. Reduce setback abbutting Residential zoning from required minimum of 50 feet to 30 feet.
UDC Section 4-415(b):
V. Reduce 300-foot tower setback from residential zoning district to 30 feet on each of the northeast, north and southwest property lines (adjacent to the newly PUD-R zoned property).