The purpose of this chapter is to provide mechanisms for obtaining relief from the provisions of this UDC. There are several ways that potential relief from hardship is addressed. Section 9.01.00 addresses relief through requirements regarding nonconforming development. Section 9.02.00 addresses relief through the grant of a variance in a particular situation due to the characteristics of the land to be developed based on the required site design standards. Section 9.03.00 addresses relief through specific exceptions to the conditions of zoning. Section 9.04.00 addresses relief through the grant of an administrative waiver in specific situations.

(Ord. No. 2018-23, § 2(Exh. B), 10-15-18)

A.

The lawful use of any building, structure or land existing at the time of the enactment of this UDC may be continued even though such use does not conform with the provisions of this UDC except that the use of a principal nonconforming building, structure or land shall not be:

Changed to another nonconforming use;

Re-established after discontinuance or abandonment for one (1) year. Discontinuance or abandonment means the failure to devote the property to the permitted nonconforming use evidenced by an overt act or failure to act (or combination of the two) sufficient to support the implication of an intent to relinquish the right to continue the nonconforming use.

Expanded, enlarged or extended, either on the same or adjoining parcel, except in conformity with this ordinance;

Rebuilt, altered, replaced, or repaired after damage exceeding fifty percent (50%) of its replacement cost at the time of destruction as determined by the building official except in conformity with this ordinance. For those situations where the damage does not exceed fifty percent (50%) of its replacement value, any such rebuilding, alteration, replacment or repair shall be completed within twelve (12) months of such damage;

Altered, except if less than thirty percent (30%) of the floor space of a building or structure is found by the building inspector to be structurally unsafe then a permit may be issued to correct the unsafe condition.

B.

At the time of the enactment of this UDC, every owner of a nonconforming building or structure shall have sixty (60) days to indicate in writing to the Zoning Administrator which building or structure or group of buildings or structures will be considered the "principal" nonconforming building or structure defined in Section A above. In the event that more than one (1) building or structure is classified as "principal" under this section, said classification must be justified by the owner and accepted in writing by the Zoning Administrator. In the event that multiple buildings or structures are accepted by the Zoning Administrator as being the "principal" nonconforming building or structure as defined in Section A above, then all percentage figures stated in this section will pertain to the total area of the multiple buildings or structures so accepted.

C.

All nonconforming buildings, structures and uses shall be discontinued and made to conform within the time periods set forth below:

1.

All nonconforming uses of land where no buildings are involved—Six (6) months from date of adoption of this UDC.

2.

All nonconforming uses of land on which are located demountable or portable buildings or structures—twelve (12) months from date of adoption of this ordinance unless approved by the Georgia Department of Community Affairs (DCA).

(Ord. No. 2018-23, § 2(Exh. B), 10-15-18)

A.

The Mayor and City Council may authorize upon appeal in specific cases such variance from the terms of this UDC as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this ordinance will, in an individual case, result in unnecessary hardship.

B.

A variance shall be authorized only so that the spirit of this UDC shall be observed, public safety and welfare secured, and substantial justice done.

C.

A variance shall not be granted to allow a use of land that is otherwise prohibited in the zoning district applicable to the property.

D.

The existence of a nonconforming use on adjacent land, buildings, or structures in the same or in other districts shall not constitute a reason for a variance.

E.

The Mayor and City Council shall be responsible for consideration and a decision regarding requests for variances, pursuant to the notice and hearing requirements set forth in Chapter 10.

(Ord. No. 2018-23, § 2(Exh. B), 10-15-18)

A request for a variance shall be limited to vary the following : 1) maximum building height; 2) minimum lot width; 3) required spacing for driveways; 4) minimum front, side, or rear yard setbacks; or 5) dimensional standards for parking or loading spaces.

(Ord. No. 2018-23, § 2(Exh. B), 10-15-18)

Variances may be granted using the following criteria:

A.

There is extraordinary and exceptional conditions pertaining to the property because of its size, shape or topography;

B.

The application of the UDC standards to property creates practical difficulty or unnecessary hardship;

C.

The practical difficulty and/or unnecessary hardship are conditions which are peculiar to the property involved; and

D.

Relief, if granted, would not cause substantial detriment to the public good or impede the purposes and intent of the UDC .

(Ord. No. 2018-23, § 2(Exh. B), 10-15-18)

A.

An applicant for a variance shall file with the zoning department the following:

1.

A completed application on forms prescribed by the zoning department;

2.

The notarized signature of the applicant and record titleholder upon the application.

3.

The application fee.

a.

These fees shall be established from time to time by resolution of the Mayor and City Council.

b.

A copy of the fee schedule shall be maintained in the City Clerk's Office.

4.

A current boundary survey and plot plan, to scale, that bears the signature and seal of a registered surveyor, engineer, architect or landscape architect. Such plans shall also include such other information thereon as may be required by the zoning department, including preliminary plans for development, building locations, parking areas, access points, adjacent streets, land lot lines, buffer areas, future right-of-way, wetlands, floodplains, utilities, and retention.

5.

Private sewage disposal must be approved by the Cobb County Health Department, and written approval from the health department must be filed with the application.

6.

Any other information required by the zoning department which they deem necessary or desirable in processing the application which is related to the present or proposed use of the property.

B.

Posting of public notice. The posting shall be the same as set forth in Chapter 10 for zoning applications.

C.

Rejected applications. Any variance request may not be reconsidered for a period of twelve (12) months after it has been rejected by the Mayor and City Council, unless by court order or pursuant to a settlement of litigation.

D.

Expiration of variance approval. Any variance authorized by the Mayor and City Council, for which construction has not commenced within one (1) year from the date on which the decision of the Mayor and City Council becomes final, shall be deemed abandoned and be void and of no further force and effect.

E.

An appeal of a decision of the Mayor and City Council on a variance application shall be to the Superior Court of Cobb County in the manner provided by law under O.C.G.A. tit. 5, ch. 3. The date of the decision is the date that the Mayor and City Council vote to grant or deny the application.

(Ord. No. 2018-23, § 2(Exh. B), 10-15-18; Ord. No. 2023-16 meeting, § 7, 8-21-23)

A.

Each zoning use category described in this UDC shall have a subhead thereunder to be known as "conditional" for that category.

B.

The Planning Commission may hear and act upon requests for "conditional zoning" of the petition as originally presented which are imposed to protect the health, safety and welfare.

1.

The Planning Commission and Mayor and City Council may hear and act upon new conditions requested by the petitioner which were not contained in the original "conditional" petition.

2.

Further, the Planning Commission and the Mayor and City Council may hear and act upon new conditions recommended by the Zoning Administrator which were not contained in the original "conditional" petition.

3.

Further, the Mayor and City Council may impose new conditions not contained in the original petition.

C.

The City Council may act on any petition where new conditions on the petition have been included which were not contained in the "conditional" petition heard and acted upon by the Planning Commission or may send such petition back to the Planning Commission for further study and recommendation before rendering a decision within sixty (60) days from the date of the public hearing held by the Mayor and City Council.

D.

All other requirements of the UDC must be complied with.

E.

Whenever the City Council, after holding a public hearing as provided in Chapter 10, approves such specific plans and design for a particular development and use and also approves a change in the district maps, then the property may be rezoned for the proper category as set forth in the UDC of the City of Kennesaw as "conditional" under the category and the Zoning Administrator shall issue a permit for the development of such property in substantial accordance with the plan submitted.

F.

Upon approval by the City Council of the plans supporting the approval and procedure outlined in Subsection E above, said plans shall bear a certificate by the Zoning Administrator indicating said approval. One copy of said plan will be filed with the record of rezoning.

G.

If for any reason, development and use of the property approved in accordance with the procedure outlined in Subsections E and F above cannot be accomplished, such plans shall not be substantially altered, changed, or varied; nor shall gross square footage, number of dwelling units or lot coverage be increased except after approval of the City Council.

H.

Nevertheless, when conditional zoning has been granted, but no affirmative action to perform said conditions or to obtain a building permit subject to such conditions, and such status shall continue for twelve (12) months from the date of approval of such conditional zoning, the property shall revert to its original status prior to such conditional zoning.

1.

Provided, however, the owner of the property conditionally zoned may request the Mayor and City Council to extend the conditional zoning or the Mayor and City Council on its own action may consider extension of the conditional zoning.

2.

If the Mayor and City Council find just cause for extending the conditional zoning, such conditional zoning may be extended for a period of up to twelve (12) months from the date of approval of such zoning period if the Mayor and City Council find just cause for extending conditional zoning, additional periods of up to twelve (12) months each may be granted.

3.

It is the responsibility of the owner to notify the Zoning Administrator and to petition the Mayor and City Council for an extension of the conditional zoning.

4.

Such petition must be presented by the owner and/or the owner's representatives to the Zoning Administrator at least thirty (30) days prior to the expiration date so as to be in time for the Mayor and City Council act thereon before the twelve (12) months expire.

5.

If no extension is granted by the Mayor and City Council prior to the expiration date, the property concerned reverts to its zoning before the conditional zoning was approved by the Mayor and City Council.

6.

If an extension of such conditional zoning is approved by the Mayor and City Council, such approval will be made on the conditional zoning originally approved by the Mayor and City Council, provided however, additional conditions approved by the Mayor and City Council may be included in the "conditional" petition.

A.

Where the owner of a plot of land consisting of one (1) or more adjacent lots of record at the time of the enactment of this ordinance did not at that time own sufficient contiguous land to enable him to conform to the minimum lot size requirements of this ordinance, such plot may nevertheless be used as a building site.

B.

The yard and other space requirements of the district in which the plot is located may be reduced by the smallest amount permitting a principal building of minimum acceptable size to be built upon the lot.

Except for antennas in single-family residential districts, the height limitations of this ordinance shall not apply to the following:

A.

Religious assembly spires

B.

Belfries

C.

Cupolas

D.

Domes

E.

Ornamental towers

F.

Water towers

G.

Chimneys and smokestacks

H.

Conveyors

I.

Silos

J.

Barns, when located on a working farm, not intended for human occupancy or public utility facilities.

(Ord. No. 2015-05, § 13, 4-20-15)

Fences and freestanding walls shall be permitted on single-family residential properties when constructed in conjunction with a single-family detached residential use, provided the following requirements are met:

A.

No fence or freestanding wall in a required yard, other than a retaining wall or necessary fencing encompassing a tennis court on private property, shall be more than eight (8) feet in height, or be constructed in a public right-of-way.

B.

Fences or freestanding walls constructed in front yard, as defined in this UDC shall not exceed four (4) feet in height.

C.

In the case of a corner lot or double frontage lot, a fence located along a street property line shall not exceed four (4) feet in height.

D.

The height of a fence shall be measured from grade to the highest point of the fence and shall be no taller than eight (8) feet or four (4) feet at any point, respectively.

E.

No wall or fence constructed of woven wire or metal fabric (chain link, hog wire or barbed wire) shall extend into a front yard, except that a woven wire or metal fabric fence may extend into a front yard when the property contains a minimum of two (2) acres and any wall or fence shall not be constructed of exposed concrete block, tires, junk or other discarded materials.

F.

Any walls or fence which extends into the required front yard on property less than two (2) acres shall be decorative and constructed of brick, stone, wood, stucco, wrought iron, split rail, and shall not be constructed of exposed concrete block, tires, junk or other discarded materials.

G.

The exterior surface of any fence shall not be unfinished along abutting properties.

H.

Any subdivision entrance wall or fence shall not exceed eight (8) feet in height and shall be subject to architectural approval by the Kennesaw Community Development Department.

I.

The Mayor and City Council of the City of Kennesaw shall hear and decide appeals and request for variance from this section of the UDC.

A.

All corner lots setbacks subject to Chapter 4 site design standards

A.

The Planning and Zoning Administrator has authority to grant the following administrative variances:

1.

A reduction in the minimum front, side, or rear yard setbacks for a single lot, provided that the reduction is limited to a maximum of five (5) feet.

2.

An increase in the maximum floor area ratio limitations for a single lot provided that the increase is limited to a maximum of five percent (5%) of the maximum standard.

3.

An increase in the maximum building coverage ratio limitations for a single lot provided that the increase is limited to a maximum of five percent (5%) of the maximum standard.

4.

Maximum height of structures—Height variance not to exceed averaged roof height of the area by ten percent (10%) maximum. The height variance will take into consideration the scale and character of the area and the intention of the zoning district being affected.

5.

Parking spaces reduction—Reduction of minimum parking spaces required not to exceed six percent (6%) of total required spaces required under the UDC.

(Ord. No. 2018-23, § 2(Exh. B), 10-15-18)

A.

An application for an administrative variance shall be filed with the Planning and Zoning Department through the Zoning Administrator.

B.

The following documents will be required for processing:

1.

A completed administrative variance application with all applicable signatures.

2.

All required fees submitted with completed application as per master fee schedule adopted by the City of Kennesaw.

3.

All supportive drawings, surveys, reports and any other information required by the Planning and Zoning Department deemed necessary that conveys all relevant information referenced in the application.

C.

Processing of application.

1.

Upon submittal and receipt of completed administrative variance application, the Zoning Administrator will attempt to process and render a decision within 15 business days.

2.

The applicant will have the responsibility to notify all adjoining property owners (including property owners for property located across the street or streets from the property on which the variance is requested) of the intention and purpose of the variance application. The applicant must forward all written responses either recommending approval or denial of the applicants request for administrative to the Zoning Administrator.

3.

If the Zoning Administrator receives objections from adjoining property owners regarding the administrative variance application then the Zoning Administrator will contact all parties who have objected to see if the matter can be settled between all parties.

4.

If the matter cannot be settled, the Zoning Administrator will deny the variance and advise the applicant that he or she may appeal this decision to the Mayor and City Council under provisions of Chapter 10 of the UDC.

5.

The above provision may be waived if all the adjoining property owners sign consent to the variance on the forms provided by the Planning and Zoning Administrator and staff.

6.

The applicant will be responsible for securing all signatures if consent from the adjoining property owners and submittal to the Planning and Zoning Department.

(Ord. No. 2018-23, § 2(Exh. B), 10-15-18)

Prior to a vote by the Mayor and Council on any project, the Zoning Administrator shall report to the Mayor and Council all administrative variances associated with said project. Any administrative variances considered by the Planning and Zoning Administrator related to any project previously approved by the Mayor and Council shall be put forth for review and comment by the Mayor and Council at a work session, regular meeting or special meeting prior to any action being taken.

A.

A monthly written report of all administrative variances shall be prepared by the Planning and Zoning Administrator and submitted at the first regular meeting of each month to the Mayor and Council for review and comment.

B.

An annual written report of all administrative variances shall be prepared by the Planning and Zoning Administrator and submitted to the Mayor and Council for review and comment at the first regular meeting of each calendar year.

C.

All reports shall contain:

1.

A summary of each administrative variance application made during the period, including a description of why the variance from any law, ordinance, rule or regulation is necessary;

2.

The action taken on each application;

3.

The name, address and telephone number of the person or entity making each application; and

4.

The name, address and telephone number of any attorney who represented the applicant.

(Ord. No. 2018-23, § 2(Exh. B), 10-15-18)