TO: Mayor and Members of City Council
THRU: Zoning Commission
FROM: Demetrios Moutos - Planner I
DATE: January 9, 2024
RE:
Title
A23-51. Order of Approval - Findings of Fact: Variance to increase maximum fence height in the front yard and reduce minimum required setback for a fence in the front yard, located at 325 Cumberland Street (REID: 0437582772000), and being the property of Ira Neil Grant.
end
COUNCIL DISTRICT(S):
Council District(s)
2 - Malik Davis
b
Relationship To Strategic Plan:
Strategic Operating Plan FY 2022
Goals 2027
Goal 4: Desirable Place to Live, Work and Recreate
Objective 4.5 - Ensure a place for people to live in great neighborhoods.
Executive Summary:
The applicant is requesting a variance to increase the minimum fence height in a front yard and to reduce the required setback for a fence in a front yard, in the Community Commercial zoning district (CC).
On December 12, 2023, the Zoning Commission held an Evidentiary hearing regarding this case. After receiving all evidence and testimony, the Commission voted 5-0 to approve the Variance application.
30.2.C.14 Variance:
The purpose of a variance is to allow certain deviations from the dimensional standards of this Ordinance (such as height, yard setback, lot coverage, or similar numeric standards) when the landowner demonstrates that, owing to special circumstances or conditions beyond the landowner's control (such as exceptional topographical conditions, narrowness, shallowness, or the shape of a specific parcel of land), the literal application of the standards would result in undue and unique hardship to the landowner and the deviation would not be contrary to the public interest.
Variances are to be sparingly exercised and only in rare instances or under exceptional circumstances to relieve undue and unique hardships to the landowner. No change in permitted uses or applicable conditions of approval may be authorized by variance.
Background:
Owner: Ira Neil Grant
Applicant: Barry White
Requested Action: Increase minimum fence height in front yard; reduce required setback for fence in front yard.
Zoning District: Community Commercial (CC)
Property Address: 325 Cumberland Street
Size: 0.71 acres ±
Existing Land Use: Custom Concepts Body Works
Surrounding Zoning and Land Uses
• North: MR-5 - Vacant/Duplex
• South: SF-10 - Single Family Dwelling
• East: CC - Vacant
• West: CC - Burkhead-De Vane Printing Co
Letters Mailed: 33
Issues/Analysis:
The building on the subject property was constructed in 1976, according to Cumberland County Tax records. The Unified Development Ordinance outlines various standards regarding fences. The UDO requires that chain link fences serving development other than single-family (attached or detached) and two- to four-family dwellings maintain a maximum height of 4 feet in front and corner side yards and 6 feet in interior side and rear yards. The UDO also requires that these chain link fences maintain a minimum setback of 0 feet in interior side and rear yards, and 10 feet in the front and corner side yards.
The applicant has requested a variance from 2 standards of the UDO. The requested changes are as follows:
• Increase maximum fence height in the front yard from 4 feet to 6 feet.
• Reduce minimum setback for fence in front yard from 10 feet to 0 feet.
The owner has requested this variance in order to bring the site into compliance with the ordinance and obtain the proper permits.
Insufficient Justification for Variance
The following does not constitute grounds for a Variance:
1. The siting of other nonconforming or conforming uses of land or structures in the same or other districts;
2. The request for a particular use expressly, or by inference, prohibited in the district; or
3. Economic hardship or the fact that property may be utilized more profitably with a Variance.
Subsequent Development
There is no intended development or construction known to be associated with this variance request.
The following findings are based on the responses submitted in the application by the applicant and the best available information about the proposal without the benefit of testimony provided at the evidentiary hearing.
Findings of Fact Statements as reviewed by the Planning Staff:
1. There is sufficient evidence that the strict application of the Ordinance requirements results in practical difficulties and unnecessary hardships as shown by the following evidence:
The applicant states “The 6-foot fence installed assists in doing business in this high crime area. Since I have owned the property, there has been numerous times prostitutes and individuals running from the law have entered my property. Most recent two shootings that took place on the corner of Hillsboro & Cumberland Street. I have installed cameras, purchased security dogs, secured a Trespassing Agreement with the City and have encouraged Police Officers and Sherriff Deputy's to complete paperwork on the property to discourage the criminal activity.”
2. There is sufficient evidence that any practical difficulties or unnecessary hardships result from unique circumstances related to the land, and are not the result of the actions of the landowner as shown by the following evidence:
The applicant states “The location of the body shop is in the center of criminal activity. Directly to my right on Orange Street is a shot house. To my left prostitutes align Chance and Frink Streets both day and night. Hillsboro Street has several Drug houses and homeless fill the area due to a close-by shelter. Since opening up the body shop after 2 years of it being vacant, I have invested in a lot of money and upgrades to better the neighborhood. The building is no longer an eyesore in the community but has uplifted and restored the surrounding area.”
3. There is sufficient evidence that the Variance is the minimum action that will make possible a reasonable use of land or structures as shown by the following evidence:
The applicant states “Approving the variance will help keep the intruders out and delay them from jumping the fence. My business has been frequented by questioned people, begging for money, stealing my power and water mainly by homeless and prostitutes.”
4. There is sufficient evidence that the Variance is in harmony with the general purpose and intent of this Ordinance and preserves its spirit as shown by the following evidence:
The applicant states “I understand the City's idea of having 4-foot fencing in neighborhoods so it can be more attractive and inviting. However, this part of the city is where mostly low-income families reside and the criminal activity may not be reported as it should.”
5. There is sufficient evidence that in the granting of the Variance, the public safety and welfare has been assured and substantial justice has been done as shown by the following evidence:
The applicant states “Granting the variance will help to ensure my employees and customers are safe while the shop is open. The fence will also help monitor who comes onto the property more closely.”
Budget Impact:
There is no immediate budgetary impact.
Options:
1. Approve Findings as submitted by staff.
2. Approve Findings with specific changes.
Recommended Action:
Staff recommends option 1 above.
Attachments:
1. Order of Findings of Fact
2. Application
3. Aerial Notification Map
4. Zoning Map
5. Land Use Map
6. Subject Property Photos
7. Surrounding Property Photos
8. Site Survey