“TOLERATE THY NEIGHBOR”
VARIANCE PROCEDURES IN MORNINGSIDE
by Trav Carter, Former Morningside-Lenox Park Association Zoning Committee Chair
We often got phone calls or emails which start with “My neighbor has filed a Variance…” or “My neighbor is building an addition onto his house, and what can I do about it?” I always start off by asking. “Have you gone next door, knocked on his door and asked him or her about it?” I very often get a puzzled “No.” Love thy neighbor. Talk to thy neighbor. OK…tolerate your neighbor.
So you want to file a Variance or your neighbor has filed one. What do you do? What can you do as a neighbor whose neighbor is filing a variance? This article will outline the general guidelines on the process. If you are filing a Variance, you should consult the City Ordinance for more detail. I have given you a link later in the article. This article is only meant to be a primer on the process. You should know that zoning matters heard by the MLPA Zoning Committee not only include Variances, but Rezonings and Special Use Permits. Rezonings are rare in the MLPA neighborhood. These are often for property on the surrounding edge of the Neighborhood and generally commercial. The last rezoning in Morningside involved the Artlite Shopping Center on Piedmont in late 2008 and early 2009. This article will deal specifically with Variances, which are more common. You also need to keep in mind that the MLPA Zoning Committee and the MLPA Board only make recommendations on zonings and variances. The final decisions are made at the City level by a City appointed board.
A Variance is an application filed with the City Planning Department requesting that you be allowed to build, remodel, add-on to your house or garage in a way which is not allowed under the City Zoning Ordinance. The Variance Request is the applicant asking to “vary” from some regulation or regulations in the City Zoning Code. In Morningside, we have a lot of smaller lots with houses built close to each other. Most of these houses were constructed in the 1930’s and 1940’s, when houses were designed much smaller and garages only had enough room for one car. Welcome to 2010, where cars are now large SUV’s (and not one, but two) and houses require more bedrooms and even home offices.
When the lots are small, as they are in Morningside, then the need for more space requires either building up and/or building out. This presents many issues since most houses and garages in the neighborhood are very close to one another, often built within the setback lines. What is a setback line? It is a line which the City Code put in place in the 1950’s which said you have to “set back” your house/addition/garage from your property line by a number of feet. For purposes of this article, I will use the R-4 Zoning Category, since Morningside is mostly R-4. In general, the setback requirements for R-4 makes you set your house or garage 7 feet from your side property line, 15 feet from your rear property line and 35 feet from your front property line. There are other requirements for lots that are corner lots. There are several other requirements which must be met such as lot coverage requirements, but I will not go into those, but keep in mind that you cannot have more than 50% of your lot covered with impervious surfaces (surfaces which are mainly constructed surfaces – houses, driveways, parking pads, patios or any surface which is covered by impenetrable materials such as asphalt or concrete).
So you or your neighbor wants to add-on to their house or build a garage and the house or existing garage is built within the setback (we say that the house or garage is “grandfathered” since it was probably built before the Zoning Ordinance came into effect). Under the City of Atlanta Code, you must have a Variance in order to add to a house which part of the house is in the setback. Note, this is a City of Atlanta requirement, not a Morningside requirement. Unlike a lot of our suburban neighbors, Morningside does not have a set of covenants, conditions or restrictions which must be adhered to in order to remodel or build a home. In my opinion, the beauty of Morningside is just that: the eclectic look of homes with their varying roof lines, varying architecture and the diverse brick, granite or other stone facades. Morningside is not the “cookie-cutter” neighborhood which you find so often in the suburbs. In Morningside, the MLPA cannot dictate what color you paint your door or your house or dictate the design or architecture. There is not an architectural review board or committee which must approve your design. Only if the addition to the house or the garage requires a variance do you have to file an Application with the City and have the MLPA review it.
To file your Application, you go to City Hall and file an Application as well as several other documents. You will generally need a survey or site plan showing where the building area will take place and where it will “vary” from what is required. Lets say you want to build a garage in the same place where your old one is falling in and lets say that the existing garage is 4 feet from your rear property line and 2 feet from your side property line. You will need a survey showing where that garage is and/or a site plan where you intend to build it. Your contractor should help you obtain either or both of these. You will need to file these with the city along with other documents. The Application, filing requirements and checklist are all online at:
Once the Application has been filed, the City will tell you to notify the Neighborhood Planning Unit (NPU) and will give you a contact to call or email. You will be required to attend the NPU meeting and present your application to the NPU for a vote by the NPU. Our NPU has several requirements for Variances which can be found www.npufatlanta.org. The NPU is the Neighborhood Planning Unit comprised of Morningside, Virginia Highlands, Lindridge-Martin Manor and Piedmont Heights. Because the NPU is so large, the NPU requests that you present your application to your particular neighborhood first before presenting it to the NPU. For Morningside, that presentation would be to the MLPA Zoning Committee followed by a presentation to the MLPA Board.
As a committee of the Morningside-Lenox Park Association Board, the Zoning Committee is responsible for hearing Zoning matters and making recommendations to the MLPA Board, who in turn, make recommendations to the Neighborhood Planning Unit ( NPU). The NPU (ours is NPU-F) then makes recommendations to the City, which ultimately votes on such matters. The MLPA Zoning Committee hears an average of 3 Variance requests per month. The Zoning Committee is comprised of MLPA residents and the meetings are opened to the neighborhood residents. They are held the first Tuesday of the month at 7:30 pm at Morningside Presbyterian Church on Morningside Drive. We welcome neighbors to be on the Committee who are interested in zoning matters affecting the neighborhood. To become a member, you must attend 3 of the monthly meetings within a 6 month period. You are allowed to vote on matters after your third meeting.
Back to the process. You present your application to the MLPA Zoning Committee. It is an informal presentation where you tell the Committee what you want to build and why you need a variance. You show your site plan or survey. You may have pictures of your house and/or pictures of what you want to build. We like your presentation to be around 10 minutes, but extra time will be given if needed. The Committee will also hear any neighbor who has opposition to your variance. Generally, the MLPA Zoning Committee will request and sometimes require the Variance Applicant to obtain signatures of support of the Application from the Applicant’s adjacent neighbors. These are the neighbors who will have to live with your building that “varies” from the Code. Your variance can either have a positive or negative impact on your neighbor’s property and your neighbor has certain property rights which are sometimes impacted by the Applicant’s request for a Variance. Neighbors have a right to oppose the Application. It is best that BEFORE you file a Variance Application, go talk about your plans with ALL the neighbors whose property touches your property or who can see the new addition or garage you are building. Have them sign a letter of support and note, that letter must refer to the variance you are filing or have filed. The MLPA Board will ask you to provide them with a copy of the letter of support that your neighbors have signed.
The MLPA Zoning Committee will hear the Application at their monthly meeting. The Committee will ask questions of the Applicant and the opposing neighbors, if any. They can approve the Application or deny it. They can approve it, but add conditions to the approval. The Zoning Committee can also defer the Application to their next monthly meeting if there are missing items in the application or there are issues which need to be researched concerning the Application which need more time. The Approval, Denial, Approval with Conditions or Deferral is the recommendation to the full MLPA Board who will hear the Application at its meeting on the 2nd Monday of the month at 7:30 pm at Morningside Presbyterian Church. At this meeting, the Applicant and anyone opposing the Application should attend and be prepared to present or oppose the Application. The process is generally the same as the presentation before the MLPA Zoning Committee. The MLPA Board then votes and they can make the same recommendations to the NPU such as Approval, Approval with Conditions, Denial or Deferral.
The NPU-F will hear the Application at its monthly meeting, which is the 3rd Monday of the month at 7:00 pm at Hillside facility, which is between Courtenay Drive and Monroe Drive. Access is available from 1301 Monroe Drive, opposite the CSO facility on Monroe Drive (look for and turn in the Georgia Power Substation). The Applicant and opposing neighbors, if any, should be prepared to speak on the application at the NPU meeting. At the NPU meeting, all people living within the NPU and who are at the meeting, vote on the Application. This vote is a recommendation to the City Board of Zoning Appeals also known as the BZA. The BZA meeting is the final group who hears the application, and once again, the Applicant and any opposing neighbor should attend and present at the BZA meeting.
While this article only gives an overview of the process, any applicant or neighbor should check out several websites for more information, especially the NPU website or the city websites cited above.
Finally, while it is important to strictly follow the requirements of filing a Variance, please respect the property rights of your neighbors. Talk to them. Tell them what you want to do. It may take some “give and take” on both your part as well as the neighbor’s part. Keep in mind that the Applicant is seeking something that “varies” from the rules.
Please feel free to come to any of the meetings mentioned above to learn more about zoning and variances and your neighborhood.
About the author: Trav Carter is a Real Estate and Zoning Attorney who formerly chaired the MLPA Zoning Committee.