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File #: PZ 24-013    Version:
Type: Variance Status: Public Hearing
File created: 4/23/2024 In control: City Council
On agenda: 10/21/2024 Final action:
Title: Variance request to UDC 8-92(e) to allow a privacy fence to encroach into the drainage easement. The property is located at 4444 Quilter Street, within land lot 680 of the 19th District, 2nd Section, Cobb County, Georgia. PIN: 19068000490.
Indexes: MIT FY 23 - Safety & Protecting Community (code enforcement, stormwater)
Code sections: Sec. 8-92 - Drainage Easements
Attachments: 1. Signed Motion to Table to 09-16-24, 2. Tabled Motion to July 5th PZ 24-013, 3. Variance App. 4444 Quilter Redacted, 4. PZ 24-013 Tabled to 10-21, 5. Approved PZ 24-013

UPDATED STAFF REPORT. PZ 24-013.

APPLICANT:  Linh Le

VARIANCE: To vary UDC Sec. 8-92(e) to allow a privacy fence to encroach 9-feet into the 10-foot drainage easement at the rear of property.

LOCATION: 4444 Quilter Street, within land lot 680 of the 19th District, 2nd Section, Cobb County, Georgia.

ZONING: PUD-R                               ACRES:    0.138 ac                    PIN: 19068000490

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

 

UPDATE: After the planning and zoning public hearing, staff made additional visits to re-inspect the existing conditions. Most notable is the visit made by the city’s new Engineering & Stormwater Services Director, Yanni Spanoudakis P.E., on October 1, 2024. His analysis confirmed that the fence sits on a ridge, which is positive for the requested variance. He provided the following comments in support of approval:

The fence in question, on Lot 56, does not impede the flow of stormwater in the drainage easement. If the grading was per the design, it would but as the land lies now it is situated on a berm (ridge) with no drainage features crossing the portion of the fence in the drainage easement.

I recommend allowing the variance for the fence on Lot 56 in the drainage easement.

This field assessment conducted by Mr. Spanoudakis P.E. supersedes the previous assessment by the city’s stormwater engineering consultant, whose assessment was based on the approved grading plans vs a field inspection. This therefore provides the basis for staff to modify the previous recommendation to approval. Additionally, since the subject lot is very shallow compared to most others in the district, a relocation of the fence outside of the drainage easement would deprive the applicant of the enjoyment of her backyard property. 

 

BACKGROUND: The subject property is a part of the Old Lost Mountain (OLM) Estates Subdivision. The annexation and rezoning from R-20 to PUD-R was approved on June 15, 2020. Ms. Le purchased the property in May 2023. In the variance application she said that she “got HOA approval; the realtor failed to inform her of the drainage easement; and that the fence company said that they will take care of permits and did not.”

Code enforcement actions resulted in the applicant submitting a design review request, which was denied due to the fence’s location within the drainage easement. Staff subsequently notified the HOA again via email to bring this issue to their attention. Figure 4 shows several fences encroaching into the drainage easements - these were cited by code enforcement and subsequently received zoning denials to their design review requests. Currently, Ms. Le is the only requestor of a variance for her fence to remain in its current location.

SURROUNDING AREA: The subject property is located within the Old Lost Mountain Estates subdivision. The subdivision is zoned PUD-R, as shown in figure 1, and is adjacent to R-20 zoning in the county. Residential uses prevail on all sides.

 

Figure 1. Zoning District: PUD-R

Figure 2. House Location Plan showing approx. fence location in red.

 

Figure 3. Grading Plan. Stormwater 30” buried CMP shown in bold lines within drainage easement for the highlighted lot.

 

Figure 4. Aerial Showing Fence at 4444 Quilter Street - yellow highlighted lot.

 

 

ANALYSIS:

The application was reviewed against the following criteria:

 

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 home is in the cul-de-sac on Quilter Street, as shown in figure 2. The backyard is not very deep compared to other lots in the area. 10-feet of the 20’ foot drainage easement is in Ms. Le’s yard, and the easement runs between the back yard impacts the entire row at that section of the subdivision.

 

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.

 

Others in the district are required to keep drainages easements clear and free of obstruction.

Sec. 8-92. Drainage Easements. (e)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.

 

 

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.

 

Others in the district are free to request a Variance if they wish. Ms. Le said that since her yard is shallow, and she needs the fence for her children and pets she opted to request the variance instead of relocating the fence.

 

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.

 

Drainage easements play a crucial role in managing stormwater and maintaining drainage infrastructure on private properties. Drainage easements ensure that stormwater flows freely without obstructions. By designating specific areas for drainage, they prevent flooding and water accumulation.

 

The stormwater management system has drop inlets periodically located along the 30’ CMP in the center of the easements. Additionally, the grading is designed to direct water flows and prevent accumulation. That said, it should be noted that Ms. Le’s yard is flat, as shown on the grading plan for the development, as shown in figure 3.

 

The city’s Stormwater Engineering consultant responded to the city’s request for comments with:

 I do not think the fences should be allowed to be in or remain in the drainage easement. Per the attached grading plan, this easement was designed such that drainage from the back of the homes and back yards was conveyed in a ditch that conveyed the runoff to inlets and pipe system in the center of the easement. Allowing the fence in the easement, especially on the property line in the center of the easement, will impede the flow of stormwater runoff such that the ditch and inlets will not function as designed. This could result in future drainage and erosion issues. The ditch and storm system should be free and clear of structures including fences that would impede the flow. In addition, I was made aware that other homes were made to move the fences back, so there has been a precedent set that is in line with the code and covenants. I recommend denying the variance request.

 

The City’s Erosion and Sediment Control Inspector commented that:

I would recommend denial of the fence in an open drainage easement. It sets a presentence for more fences to be put in drainage easements. The number of complaints that I get about drainage problems especially with fences impeding the flow of water is high... Any debris that gets pushed against the fence and blocks the flow of water or redirects the flow of water could flood another house or property…

 

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

The special circumstances are due to the applicants’ actions. She did request and receive HOA approval. However, no contact was made with the city until after code enforcement intervened.

 

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 variance that would allow the applicant to keep the fence in its current location. The fence encroaches 9-feet into the 10-foot drainage easement.

 

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.

 

Privacy fences are permitted by right in this residential zoning district.

 

 

 

 

UPDATED STAFF RECOMMENDATION: APPROVAL, with the following conditions:

 

 

1.                     The applicant is responsible for any repairs to the fence should repairs to the pipe require that the fence be removed or damaged.

 

2.                     The applicant is responsible for any increased flood risk, or drainage issues on the subject property, caused by the fence’s location within the drainage easement.