MEMORANDUM TO: Board of Zoning Adjustment FROM: Nyna E. Gentry, Acting Secretary SUBJECT: V-01-26 - Rear of 367 Ivy Place, N.E. DATE: April 6, 2001 The applicant is seeking a variance from the zoning regulations to eliminate the requirement of an independent driveway off of a public street and to allow access through the rear of a lot at 1837 McClendon Avenue. (legal easement agreement required, property is land locked) FINDINGS OF FACT: Location: The subject property is located on the east side of Ivy Place and south of McLendon Avenue, in the Lake Claire neighborhood of NPU N. The lot is located at the edge of a large R-5 (Two-Family Residential) district, which is primarily developed with a mix of one and two family residential uses. Zoning, lot and yard requirements: The property is zoned R-5. The R-5 district regulations require a minimum frontage of 50 feet and a minimum lot area of 7,500 s.f. The parcel at the rear of 367 Ivy Place is 60 feet wide and has an area of 9,000 s.f. that exceeds the minimum requirements of the zoning ordinance. The property (1839 McLendon Avenue) through which the applicant wishes to access the subject parcel is zoned R-4. The R-4 district regulations require a minimum frontage of 70 feet and a minimum lot area of 9,000 s.f. 1839 McLendon Avenue has 63 feet of frontage and 9,450 s.f. of area. The lot is deficient in frontage and therefore is a legal nonconforming lot. Lot characteristics: The subject parcel is a landlocked, rectangular interior lot. The property is heavily overgrown with a variety of vegetation, including kudzu and mature trees. The property drops off approximately 20 feet from front to rear. The rear is traversed diagonally by a creek running north to south. Development and yard characteristics: The subject parcel is undeveloped. The applicant wishes to access the parcel by way of an 18-foot easement that has been granted along the eastern side of 1839 McLendon Avenue to allow the construction of and access to a single-family house. The parcel would have no other access. Several of the available plats of this area indicate an alley running along the eastern edge of this parcel. However, this alley does not exists and cannot provide access to this parcel. The Board is reminded that access must be available from a public street and that access by means of an alley cannot be considered primary access. CONCLUSIONS This request has been before this Board twice. Once requesting the use of a shared driveway and once requesting access through an easement. Both previous applications had recommendations of denial from staff and this Board denied those previous applications without prejudice. In reviewing this issue the third time two issues have been raised which appear to be relevant. 1. Whether or not the parcel at the rear of 367 Ivy Place is a legal lot of record. Staff utilized the Real Estate Division of the Department of Law and based on a title search conducted by them has come to the conclusion that the parcel at the rear of 367 Ivy Place was created in 1972. Documentation has been provided relating to this title search and is part of the official file for this case. The Bureau of Planning has been unable to identify any variance or subdivision that would have permitted the creation of the subject parcel as a legal lot of record. In addition, the survey of 1972 that was filed with this application shows the "pins" as having been "set" not "found". This suggests that the parcel had not previously been surveyed as an independent parcel. The subdivision regulations adopted in 1957 that were in effect in 1972 did not permit the creation of a lot without direct access to a public street. In light of these factors the staff must conclude that the subject parcel is not a legal lot of record and thus not entitled to a building permit for a single-family dwelling 2. Staff has consulted with the Zoning Section of the Law Department as to Section 16-28.006 of the Zoning Ordinance. This particular section pertains to (1 )Lot defined. Prohibition Against Division Creating Substandard Lots; (2) Lot, Conforming, Defined, and (4) Lot, Substandard, Defined. (copy attached) In part these sections of the zoning ordinance state (1) "... provided that in no case of division or combination shall a residual lot be created which does not meet the requirements of this part." (2) "A conforming lot is a parcel of land meeting the requirements of this part as to dimensions and access. In determining whether a lot is conforming, the area of any easement, lease, license or other similar instrument for transferring real property interests shall be excluded, except that easements serving the lot such as utility easements and common driveways not serving any streets, shall be included. (4) "A lot created after passage or amendment of this part, and not in accord with its requirements as to dimensions or access. In general, such lots are illegal unless created by governmental or court action. The Bureau of Planning has determined that the 18' easement granted along the eastern most part of the property at 1839 McLendon Avenue would increase the degree of its nonconformity that is not allowed by the Zoning Ordinance or by way of a variance or special exception. The following findings in relation to this request for a variance are in accordance with Section 16-26.003 of the Atlanta Zoning Ordinance. a. There are extraordinary and exceptional conditions pertaining to the particular piece of property in question because of its size, shape, or topography. The staff has inspected the site in question and finds no extraordinary and exceptional conditions pertaining this particular parcel as it relates to its size, shape or topography. The parcel is rectangular and is of sufficient size and width to be a conforming R-5 lot. It's topography is not markedly different from several adjacent parcels. b. The application of the Zoning Ordinance of the City of Atlanta to this particular piece of property would create an unnecessary hardship. This consideration is not applicable because it is the Bureau of Planning's belief that this parcel is not a legal lot of record and cannot be provided with access in a manner that does not violate the Zoning Ordinance (see discussion above). c. Such conditions are peculiar to the particular piece of property involved. The subject parcel is land locked and this condition appears to result from the act of a previous owner of the property in creating a parcel that has no legal access. The adjacent lots to the south at 357 and 361 Ivy Place have sufficient area to be subdivided but would be similarly situated in that any attempted separation of the rear of these lots would result in parcels with no legal access. d. Relief, if granted, would not cause substantial detriment to the public good or impair the purposes and intent of the Zoning Ordinance of the City of Atlanta. It is the Staff's belief that relief if granted would cause substantial detriment to the public good and compromise the intent of the Zoning Ordinance. The requirement that single-family building lots have direct access to a public street is based on the necessity for public safety officials to be able to have easy and direct access to the property and to enable the residents of the property to have permanent and unimpeded access to their residence. The approval of the requested variance whereby this property has access only by means of a narrow and potentially problematic easement will result in a dwelling whose access cannot be guaranteed in either legal or practical terms. No to be overlooked is the impact of the easement on the property at 1839 McLendon which will result automobile traffic driving through that lot immediately adjacent to the home to the potential detriment of the persons living in that dwelling. Additionally, as noted above, the granting of this easement acts to increase the nonconformity of the grantor parcel which is an act specifically prohibited by the Zoning Ordinance. STAFF RECOMMENDATION DENIAL xc: Robert C. Gray, Director, Bureau of Planning V-01-26 Rear of 367 Ivy Place, NE April 6, 2001 -------------------------------------------- This is an unofficial copy generated by Lake Claire Neighbors from an MS-Word document created by the City Atlanta, Bureau of Zoning Adjustment. In generating this version the text has not been changed, but a certain amount of formatting has been lost such as bolding, italicizing, underlining, and indenting. http://www.lakeclaire.org/docs/367-ivy.txt 2001 April 26, Thursday [End of File]