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Home My WebLink AboutAgenda Packet - BoZA - 10/20/2020 AGENDA BOARD OF ZONING APPEALS OCTOBER 20, 2020 6:00pm CITY COUNCIL CHAMBERS 1. Call to order 2. Roll call 3. Pledge of Allegiance 4. Approval/Amendment of Agenda 5. Approval of September meeting minutes 6. Consideration of Primary Variances a. V20-14, 705 Nettlebrook Lane – Deferred from previous month Request(s):  To allow an accessory structure to encroach into the side yard adjacent to a street (Sec. 64-416(c)(2)}. The following Items will not be heard before 6:15 PM b. V20-19, 640 Dorris Road – Deferred from previous month Request(s):  To request a variance of 140 feet to allow the minimum setback for a pen for dogs to be sixty feet from the northern property line instead of the required 200 feet (Sec. 64-415(a)(9)}.  To request a variance of 150 feet to allow the minimum setback for a pen for dogs to be fifty feet from the eastern property line instead of the required 200 feet (Sec. 64-415(a)(9)}.  To request a variance of seventy-five feet to allow the minimum setback for a pen for dogs to be 125 feet from the southern property line instead of the required 200 feet (Sec. 64-415(a)(9)}.  To request a variance of 120 feet to allow the minimum setback for a pen for dogs to be eighty feet from the western property line instead of the required 200 feet (Sec. 64-415(a)(9)}. The following Items will not be heard before 6:45 PM c. V20-21, 12725 New Providence Road Request(s):  To change the fifty-foot rear setback to twenty-five feet. (Sec. 64-416(d)} d. 20-22, 14875 Taylor Road Request(s):  To reduce the 100-foot building setback for housing animals to eighteen feet for existing shed/stable. (Sec. 64-415(2)}  To reduce the 100-foot building setback for housing animals to twenty-six feet for existing barn/stable. (Sec. 64-415(2)} The following Items will not be heard before 7:15 PM e. V20-23, 555 Lost River Bend Request(s):  To reduce the front yard setback from sixty feet to twenty-five feet. (Sec. 64-416(b)} 7. Consideration of Appeals/Secondary Variances 8. Old business 9. New business 10. Adjournment ACTION REPORT BOARD OF ZONING APPEALS SEPTEMBER 15, 2020 6:00pm CITY COUNCIL CHAMBERS 1. Call to order 2. Roll call Members Present: Kim Keller, Todd Chernik, Jason Cole, Brenda Hamstead 3. Pledge of allegiance 4. Approval/Amendment of Agenda Motion to Approve: Todd Chernik 2nd: Jason Cole Vote: 4-0, Motion Approved 5. Approval of July meeting minutes Motion to Approve: Todd Chernik 2nd: Brenda Hamstead Vote: 3-0*, Motion Approved Jason Cole abstained his vote* 6. Consideration of Primary Variances a. V20-14, 705 Nettlebrook Lane – Administratively Deferred Request(s): • To allow an accessory structure to encroach into the side yard adjacent to a street (Sec. 64-416, c, 2). b. V20-15, 810 Guardian Court Request(s): • To allow an accessory structure to encroach into the rear yard setback (Sec. 64-416, i). • To allow an existing fireplace to be located in the side yard (Sec. 64-77, 2, b, 2). Motion to Approve with Conditions: Brenda Hamstead Conditions: • Needs to be 23’ by 25’ in size per site plan by McWhorter Gilbert Anderson dated received July 1, 2020. 2nd: Todd Chernik Vote: 4-0, Motion Approved c. V20-16, 14355 Freemanville Road Request(s): • To allow an existing accessory structure to encroach into the rear yard setback (Sec. 64-416, i). Motion to Approve with Conditions: Todd Chernik Conditions: • Size and location per site plan by TSS dated 6/24/2020 • Note on recorded Plat stating horse and livestock restriction of current accessory structure • Note on Deed upon sale indicating horse and livestock restriction of current accessory structure • Any modification or alteration must go through City Architecture Review • Limit variance to existing structure • Approved use as a storage accessory structure only. 2nd: Jason Cole Vote: 4-0, Motion Approved d. V20-17, 0 Thompson Road (22 520005380606) Request(s): • To allow a new public street to be located twenty five feet from any peripheral property line adjoining AG-1 and residential zoned property (Sec. 64-2397). Motion to Deny: Todd Chernik 2nd: Kim Keller Vote: 4-0, Motion Approved e. V20-18, 3430 Bethany Bend Request(s): • To reduce the side yard setback from twenty five feet to twelve feet (Sec. 64-416, c, 1). • To allow a stone masonry material under the three-four board horse fence along a public road (Sec. 64-1092, i). Motion to Deny part one and Approve part two with conditions: Brenda Hamstead Conditions: • Overall fence height not to exceed five feet • City Architect to approve fence design and materials 2nd: Todd Chernik Vote: 4-0, Motion Approved f. V20-19, 640 Dorris Road – Administratively Deferred Request(s): • To request a variance of 140 feet to allow the minimum setback for a pen for dogs to be sixty feet from the northern property line instead of the required 200 feet (Sec. 64-415, a, 9). • To request a variance of 150 feet to allow the minimum setback for a pen for dogs to be fifty feet from the eastern property line instead of the required 200 feet (Sec. 64-415, a, 9). • To request a variance of seventy five feet to allow the minimum setback for a pen for dogs to be 125 feet from the southern property line instead of the required 200 feet (Sec. 64-415, a, 9). • To request a variance of 120 feet to allow the minimum setback for a pen for dogs to be eighty feet from the western property line instead of the required 200 feet (Sec. 64-415, a, 9). 7. Consideration of Appeals/Secondary Variances a. V20-20, 16662 Phillips Road Request(s): • To appeal the rejection of the Community Development Director’s decision denying the acceptance of a building permit. (Sec. 64-2426, 3, a). Motion to Reverse Community Development Director’s Decision: Todd Chernik 2nd: Jason Cole Vote: 4-0, Motion Approved 8. Old business a. Staff to coordinate call/Zoom meeting with Board of Zoning members, to summarize the recently adopted Tree Canopy ordinance b. Staff to pursue technical support for Board member Don Curt and Jason Cole to set up their city emails 9. New business 10. Adjournment a. Motion Kim Keller, 2nd Todd Chernik b. Vote 4-0, Motion Approved Page 1 of 16 V20-14 - Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 PETITION NUMBER: V20-14 PROPERTY INFORMATION 705 Nettlebrook Lane DISTRICT, LAND LOTS 2 / 745 & 768 OVERLAY DISTRICT RURAL MILTON OVERLAY EXISTING ZONING AG-1 ACRES 1.46 EXISTING USE SINGLE FAMILY RESIDENCE FUTURE LAND USE DESIGNATION LOW DENSITY RESIDENTIAL REQUESTED VARIANCES: •To allow an accessory structure to encroach into the side yard adjacent to a street (Sec. 64-416 (c)(2)). PETITIONER Marty Hamby ADDRESS 705 Nettlebrook Lane Milton, GA 30004 REPRESENTATIVE Austin Lineberry – New River Building Co. ADDRESS 1355 Freehome Road Canton, GA 30115 Page 2 of 16 V20-14 - Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Page 3 of 16 V20-14 - Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 COMMUNITY DEVELOPMENT STAFF ANALYSIS STAFF CONTACT: CODY HENDRIX 678.242.2513 Background: This item was deferred to allow the applicant to address issues raised at the Design Review Board Meeting from August 4, 2020. The site is a 1.46-acre lot located in the Nettelebrook Farm subdivision and is adjacent to Redd Road and Thompson Road and fronts on Nettlebrook Lane (Exhibit A). This property is zoned AG-1 and is located in the Rural Milton Overlay District. The house built on the property is in compliance with the minimum building setbacks. The applicant intends to build an addition to the house that encroaches the side yard setback (Exhibit A). As per Sec. 64-416 (c)(2), the minimum side setback requirement is forty feet when adjacent to a street. In this case the adjacent road is Redd Road on the south side of this property. The applicant is requesting a variance to reduce the side setback from forty feet to twenty-two feet. DESIGN REVIEW BOARD (DRB) COURTESY REVIEW: On August 4, 2020, the DRB met and had the following comments: • DRB supports a minimum encroachment into the side yard. • Provide a landscaping plan for the side yard adjacent to Redd Road. • Architecture to be approved by the City Architect. • The DRB supports the rendering presented at the August meeting. • The DRB supports Milton’s farmhouse style with gables instead of a blank wall. • Provide support letters from the HOA and neighbors. Since the time of the August DRB meeting, the applicant has provided the following items: 1. Within the Letter Intent, the applicant states that they plan on supplementing the recently planted material with native type vegetation which is consistent with the Rural Viewshed along Redd Road. 2. Provided support letter from the HOA. 3. Updated detailed elevations of proposed garage and aerials of the proposed location on the site. Page 4 of 16 V20-14 - Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Standards for Consideration: The approval of a variance is based on the following consideration(s): • Relief, if granted would not offend the spirit or intent of the Ordinance. • There are such extraordinary and exceptional situations or conditions pertaining to the particular piece of property that the literal or strict application of the Ordinance would create an unnecessary hardship due to size, shape or topography or other extraordinary and exceptional situations or conditions not caused by the variance applicant. • Relief, if granted would not cause a substantial detriment to the public good and surrounding properties. • That the public safety, health and welfare are secured, and that substantial justice is done. The applicant response: • Please see the letter of appeal. The staff response: • Part one: The reduction in the setback will not offend the spirit of the ordinance since twenty-two feet is available for landscaping that can provide sufficient buffer. • Part two: The site is surrounded by three streets so additional setbacks are required and thus resulting in reduced buildable area. The variance can relieve this hardship arising due to these special circumstances. • Part three: The variance would not cause harm to public good because there are very few surrounding properties. In addition, the applicant has obtained a support letter from HOA (See Exhibit B) as well as supplementing the vegetation along Redd Road with native plantings. • Part four: The variance can be granted because it is taking into consideration the safety of the existing house. In addition, the applicant is conforming with the design preferences suggested by DRB and the City Architect. Page 5 of 16 V20-14 - Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Staff recommendation: • Staff recommends approval of the variance request to reduce the side yard setback adjacent to a street from 40 feet to 22 feet as depicted on Exhibit A. If the Board of Appeals chooses to approve the requested variance, Staff recommends the following conditions: 1. Provide a landscape plan along Redd Road to be approved by the City Arborist prior to the issuance of the building permit for the structure. 2. The proposed garage shall be reviewed and approved by the City Architect prior to the issuance of the building permit for the structure. Page 6 of 16 V20-14 - Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Page 7 of 16 V20-14 - Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Page 8 of 16 V20-14 - Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Page 9 of 16 V20-14 - Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Exhibit A Page 10 of 16 V20-14 - Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Page 11 of 16 V20-14 - Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Page 12 of 16 V20-14 - Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Page 13 of 16 V20-14 - Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Exhibit B Page 14 of 16 V20-14 - Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Page 15 of 16 V20-14 - Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Page 16 of 16 V20-14 - Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Page 1 of 11 V20-19 - Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 PETITION NUMBER: V20-19 PROPERTY INFORMATION 640 Dorris Road DISTRICT, LAND LOT 2 / 954 OVERLAY DISTRICT RURAL MILTON EXISTING ZONING AG-1 ACRES 2.5718 EXISTING USE DOG KENNEL FUTURE LAND USE DESIGNATION AGRICULTURAL, EQUESTRIAN, ESTATE RESIDENTIAL REQUESTED VARIANCES: Request 1 - To request a variance of 140 feet to allow the minimum setback for a pen for dogs to be sixty feet from the northern property line instead of the required 200 feet (Sec. 64-415 (a) (9)). Request 2 - To request a variance of 150 feet to allow the minimum setback for a pen for dogs to be fifty feet from the eastern property line instead of the required 200 feet (Sec. 64-415 (a) (9)). Request 3 - To request a variance of seventy-five feet to allow the minimum setback for a pen for dogs to be 125 feet from the southern property line instead of the required 200 feet (Sec. 64-415 (a)(9)). Request 4 - To request a variance of 120 feet to allow the minimum setback for a pen for dogs to be eighty feet from the western property line instead of the required 200 feet (Sec. 64-415 (a)(9)). PETITIONER Ruff House Kennel and Daycare, LLC ADDRESS 640 Dorris Road Milton, GA 30004 REPRESENTATIVE Jonathan Beard, Miles Hansford & Tallant, LLC ADDRESS 202 Tribble Gap Road, Suite 200 Cumming, GA 30040 Page 2 of 11 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Page 3 of 11 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 COMMUNITY DEVELOPMENT STAFF ANALYSIS STAFF CONTACT: CODY HENDRIX 678.242.2513 Background: The site is a 2.5718-acre lot located on the northwest corner of Dorris Road and Birmingham Hwy. The property is zoned AG-1 and is located in the Rural Milton Overlay District. The applicant is requesting four variances as listed above. Below is a chronological history of the site. • October 1997: Construction Plans submitted to Fulton County for a kennel by Bed and Bones and permit issued in March 1998. • Between 2009 and 2010: a fence was installed behind the building (North side of property). This was located on aerials provided by Fulton County GIS. No building permits were found in permit database for scope of work. • 2013: Bed and Bones submitted and was approved for a minor plat to divide property into two lots. One created a separate lot located at 630 Dorris Road (for a new single- family residence) and the kennel at 640 Dorris Road. • December 2019: Ruff House requested a Zoning Certification Letter. • December 2019: Ruff House purchased Bed and Bones at 640 Dorris Road. • January 2, 2020: A variance application was submitted for 640 Dorris Road for constructing a fence 50 feet from property line instead of 200 feet. • February 4, 2020: The applicant’s attorney submitted a withdrawal without prejudice document to staff. • February 4, 2020: The Design Review Board conducted business and removed the variance case at 640 Dorris Road from the agenda. • February 7, 2020: Courtesy Notice was mailed to current property owner for installation of a fence without obtaining a fence permit, (separate from variance request), not obtaining a sign permit for new signs, and building permit for interior work inside building. • February 15, 2020: Property owner sent staff an email with proposed scope of work on property. • February 18, 2020: Board of Zoning Appeals meeting the applicant withdrew the variance without prejudice. • February 24, 2020: Staff emailed property owner about the proper permits for proposed scope of work. • March 2, 2020: Neighbors adjacent to Ruff House met with City Staff to discuss issues and complaints. • March 13, 2020: Property owner submitted for two sign permits. (Staff has not issued permits) • March 17, 2020: Property owner submitted for two fence permits. (Fence on eastern side and western side; Staff has not issued permits) • April 1, 2020: Final Courtesy Notice sent to property owner. Page 4 of 11 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 • April 6, 2020: Staff emailed property owner about status of fence permits. Stated the intended use would need a variance. • June 18, 2020: Staff held another meeting with neighbors adjacent to Ruff House. • June 26, 2020: Staff met with neighbors. • July 2, 2020: Staff met with Ruff House and attorneys. • July 6, 2020: Ruff House submitted for variance. • September 1, 2020: Variance was presented at Design Review Board. • September 8, 2020: Ruff House requested a deferral to next scheduled Board of Zoning Appeals meeting. • September 11, 2020: Community Development Director signed document granting the administrative deferral. The applicant has requested four variances to reduce the distance of the pens from the adjacent property lines based on the fact that the Zoning Ordinance requires the following: Sec. 64-415(a)(9) states the following: Kennel, veterinary hospital or veterinary clinic; provided buildings housing animals are fully enclosed and at least 100 feet from all property lines and pens, runs, etc., which are not located in a fully-enclosed building are at least 200 feet from all property lines. DESIGN REVIEW BOARD (DRB) COURTESY REVIEW: On September 1, 2020, the DRB met and had the following comments: • The requested variances set a precedent for the future. • The DRB are against the requested variances. • The applicant has not demonstrated a hardship. • The DRB suggested that the community and applicant have a community meeting. • The DRB are against any increase in any non-conforming older commercial uses. The applicant and the community met as recommended by the DRB. Staff has not received a report or update on the results of the meeting. Page 5 of 11 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Standards for Consideration: The approval of a variance is based on the following consideration(s): • Relief, if granted would not offend the spirit or intent of the Ordinance. • There are such extraordinary and exceptional situations or conditions pertaining to the particular piece of property that the literal or strict application of the Ordinance would create an unnecessary hardship due to size, shape or topography or other extraordinary and exceptional situations or conditions not caused by the variance applicant. • Relief, if granted would not cause a substantial detriment to the public good and surrounding properties. • That the public safety, health and welfare are secured, and that substantial justice is done. The applicant’s response: • Please see the letter of appeal. The Staff’s response: • Part 1: The four requests for the reduction of the should not be granted based on the fact that they offend the spirit or intent of the Ordinance to protect the adjacent property owners since the existing and proposed pens (fencing) are approximately 81, 62, and 68 feet from adjacent single-family residences and 50 feet from Birmingham Highway. In addition, there is no additional vegetative screening proposed (aerials were taken prior to trees taken down) or fencing to ameliorate the distance of the pens from the residences. • Part 2: Staff notes that (Sec. 64-415 (a)(9)) has been in existence prior to the City of Milton’s incorporation in December 2006. Please see Exhibit A, which is the Fulton County Zoning Ordinance, specifically the AG-1 (Agricultural) Zoning District that includes development standards for kennels. At the top of the page it states that Article was adopted on March 7, 1990. The applicant has not demonstrated that there are extraordinary and exceptional situations or conditions pertaining to the particular piece of property that the literal or strict application of the Ordinance would create an unnecessary hardship due to size, shape or topography or other extraordinary and exceptional situations or conditions not caused by the variance applicant. • Part 3: The applicant has not shown that the four variance requests would not cause a substantial detriment to the public good and surrounding properties. This is based on Page 6 of 11 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 the fact that the pens/fencing are located or proposed at a distance that does not provide for adequate protection of noise and activity from the animals to the adjacent property owners. As stated above, there are no plans to ameliorate the sound and the activity that impact the property owners especially to the north and west of the site. • Part 4: The requested four variances to reduce the distance of the pens from the minimum 200 feet from property lines does not provide for the public safety, health and welfare are secured, and that substantial justice is done. This is based on the fact that the pens are too close to adjacent properties and the applicant has not provided any methods to ameliorate the impact of the pens. Staff recommendation: Staff recommends denial of all four variance requests. If the Board of Zoning Appeals chooses to approve the requested variances, Staff recommends the following conditions: 1. Provide a 6-foot privacy fence along the north and west property lines. 2. Plant evergreen plantings interior to the fencing as approved by the City Arborist to provide additional sound absorption caused by the dogs. 3. No exterior lighting shall be permitted after sunset or before sunrise seven days a week. 4. Provide sound insulation to the existing building to reduce noise to 50 dB(A) as measured at the adjacent property lines. Page 7 of 11 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Letter of Appeal Page 8 of 11 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Letter of Appeal (Cont.) Page 9 of 11 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Existing Fences Page 10 of 11 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Proposed Fence Page 11 of 11 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 View looking west from Birmingham Hwy Aerial of site ZONING RESOLUTION OF FULTON COUNTY 5-1 ADOPTED BY THE BOARD OF COMMISSIONERS ON MARCH 7, 1990 AND SUBSEQUENTLY AMENDED AS NOTED ARTICLE V SECTION 5.1 AG-1 AGRICULTURAL DISTRICT 5.1.1. AG-1 DISTRICT SCOPE AND INTENT. Regulations set forth in this Article are the AG-1 District regulations. Article XIX should be consulted to determine uses and minimum standards for uses allowed by Administrative or Use Permit. The AG-1 District is intended to encompass lands devoted to a wide range of uses including individual parcels devoted to residential use, single- family subdivisions, agricultural and closely related uses. 5.1.2. USE REGULATIONS. A.Permitted Uses. A building or property may be used for only the following purposes: 1. Single family dwelling 2. Agriculture, general and specialized farming, including: horticulture, plant nursery, greenhouse, dairy farming, livestock raising and poultry raising provided, however, that buildings used for housing animals must be at least 100 feet from all property lines. 3.Roadside stand for the sale of agricultural products produced on the property. 4. Riding Stable other than accessory, provided buildings housing animals are at least 100 feet from all property lines and the lot is not less than ten 10 acres. Standards for keeping horses other than for a nonaccessory Public Riding Stable are the same as the standards contained in Section 4.8.1 pertaining to the keeping of horses in a single family dwelling district. 5.Kennel, Veterinary Hospital or Veterinary Clinic, provided buildings housing animals are fully enclosed and at least 100 feet EXHIBIT A ZONING RESOLUTION OF FULTON COUNTY 5-2 from all property lines; and pens, runs, etc. which are not located in a fully enclosed building are at least 200 feet from all property lines. B.Accessory Uses. A building or land may be used for uses customarily incidental to any permitted use and a dwelling may be used for a home occupation. 5.1.3. DEVELOPMENT STANDARDS. A.Height Regulations. No building shall exceed forty (40) feet in height. (Amended 2/7/96) B.Minimum Front Yard - 60 feet C.Minimum Side Yard - 25 feet adjacent to interior line - 40 feet adjacent to street D.Minimum Rear Yard - 50 feet E.Minimum Lot Area - 1 acre with frontage on paved road - 3 acres with frontage on unpaved road (Added 5/6/92) F.Minimum Lot Width - 100 feet G.Minimum Lot Frontage - 35 feet adjoining a street (Amended 11/03/93) H.Minimum Heated Floor Area - There is no minimum heated floor area in this district. I.Minimum Accessory Structure Requirements. Accessory structures may be located in rear or side yards but shall not be located within a minimum yard. J.Conservation Subdivision. The development standards of a conservation subdivision shall be in accordance with Section VI of the Fulton County Subdivision Regulations. (Added 05/05/04) EXHIBIT A ZONING RESOLUTION OF FULTON COUNTY 5-3 5.1.4. OTHER REGULATIONS. The headings below contain provisions applicable to the AG-1 District: Development Regulations. Article XXXIV Exceptions. Section 4.3 Floodplain Management. Section 4.24 Off Street Parking and Loading. Article XVIII Outside Storage. Section 4.2 Landscape Area and Buffer Regulations. Section 4.23 River Protection. Metropolitan River Protection Act Signs. Article XXXIII EXHIBIT A Miles Hansford 202 Tribble Gap Road I Suite 200 1 Cumming, Georgia 30040 770-781-4100 1 www.mhtlegal.com & Tallant, LLC ATTORNEYS AT LAW Revised October 15, 2020 LETTER OF APPEAL Jonathan C. Beard LeardAynhtlegaGcom Applicant: Ruff House Kennel and Daycare, LLC Subject Property: 2.5718 Acres Designated as Fulton County Tax Parcel(s): 22-398009540206 Current Zoning: AG -1— Agricultural District Proposed Zoning: AG -1— Agricultural District ROW Access: Dorris Road Application: Variance This statement is intended to comply with the application procedures established by The City of Milton, Georgia for submittal of applications for zoning, as required by the Zoning Ordinance of the City of Milton, Georgia (the "Zoning Ordinance"), the City of Milton Variance Application, and other City of Milton Ordinances and Standards, and to reserve all constitutional and statutory protections available to Ruff House Kennel and Daycare, LLC (the "Applicant"). The Applicant has filed a timely application, has provided all required information and has submitted the appropriate application fees. The application meets all judicial and statutory requirements for approval. The Applicant asserts the statements contained in the application package submitted herewith, including any requested variances, incorporated herein by reference, and as may be amended (the "Application"), as if such were fully stated herein. The Applicant incorporates all statements made in the Application by Ruff House Kennel and Daycare, LLC as its letter of appeal required by the City of Milton. All references to code sections of the Zoning Ordinance are numbered in accordance with Municode enumerations. The Applicant seeks the following variances to Section 64-415 (a)(9) of the Zoning Ordinance: 1. A variance of 140 feet to allow a pen for dogs to be 60 feet from the northern property line instead of the required 200 feet. 2. A variance of 60 feet to allow a pen for dogs to be 140 feet from the eastern property line instead of the required 200 feet. 3. A variance of 60 feet to allow a pen for dogs to be 140 feet from the southern property line instead of the required 200 feet. The Applicant seeks only to make an existing pen compliant with the current version of the Zoning Ordinance. The pen is not for the purposes of overnight keeping, but rather temporary outdoor activity for dogs staying onsite. Miles Hansford & Tallant, LLC ATTORNEYS AT LAW Page 2 of 2 October 15, 2020 1. Relief, if granted would not offend the spirit or intent of the Ordinance. Approval of the requested variances will not offend the Zoning Ordinance's intent of providing adequate separation between structures and adjacent properties. The Applicant will maintain the proposed structures at a safe distance from adjacent properties and the right -of way of Birmingham Highway. 2. There are such extraordinary and exceptional situations or conditions pertaining to the particular piece of property that the literal or strict application of the Ordinance would create an unnecessary hardship due to size, shape or topography or other extraordinary and exceptional situations or conditions not caused by the variance applicant. The shape, size, and topography of the subject property, and the resulting setbacks along the boundary lines, substantially limit the buildable area of the subject property and necessitate placement of the structures in the locations proposed by the Applicant. The kennel has been in operation since around 1998, before the City of Milton was incorporated in 2006, and before the current Section 64-415 (a)(9) was enacted in 2013. The proposed variances requested by the Applicant are sought to make the existing pen referenced above, which has been on the subject property since around initial construction, and used as a pen as defined under the Zoning Ordinance, compliant with the current version of the Zoning Ordinance. Supporting documents demonstrating the use of the pen, for outdoor play, is attached hereto as Exhibit "A" and incorporated by reference. Additional documents will be provided at the public hearing. No new pens or runs are proposed. 3. Relief, if granted would not cause a substantial detriment to the public good and surrounding properties. The requested variances are the minimum necessary to accommodate the proposed structures and allow the property to be developed in an economically feasible and physically practical manner. The Applicant will provide adequate protection to adjoining properties by providing structures that are in keeping with aesthetics of the surrounding community. 4. That the public safety, health and welfare are secured, and that substantial justice is done. Approval of the proposed variances would not create a safety hazard or noxious condition. Additionally, similarly situated businesses with larger tracts of land have been permitted to construct, or at least maintain, pens within the 200 -foot requirement without a variance. G W 4 kfl A L, To] No Text 0 o = a+ o 'm ur ! H CL a a N N O � � O c O o O L ui w = o QS = L ! m W Q o owi a y o a +, O N O . �W O L ui O Y i O Q • O L F'v � O a o wo •- Oz 3oo O Z in O O O 0 O 0 O O O o n O tt1 t(1 6 to N c. O N N Hi U3 h tPr W fA ? M m 4A t r� L a o � 3 LnLn H O O O O O tJ z rn Un o O O O W 'O O nC W M M M N dS In = Q KT tfi _ z vs t L11 Ve �. U_ C z z ul LLJW v4 z Y O C^�, Q. 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Morning Robyn, Per my previous emails regarding Ms. Dunn’s emails being bounced back undeliverable by the City of Milton, she asked me to send this letter to you via my account and ask if you would forward to all BZA members. I would appreciate your confirmation of this and also confirmation copy me on the forward distribution request to the BZA board members. I sincerely appreciate your help. Regards, rick | patterson c: 770.265.5061 e: rickpatterson44@gmail.com -----Original Message----- From: fab5dunn@aol.com To: robyn.macdonald@cityofmiltonga.us <robyn.macdonald@cityofmiltonga.us> Sent: Wed, Oct 14, 2020 7:36 pm Subject: Ruff House BZA Variance Meeting Opposition Robyn, Since I’m having problems sending emails to various City of Milton officials, please acknowledge receipt of this email and forward this email to all BZA members and copy me on the forward. Many thanks, Grace BZA Board Members, My name is Grace Dunn and I live at 630 Dorris Rd., adjacent property to the Ruff House Doggie Day Care. I have lived here for over 5 years and have enjoyed over 4+ years of peaceful and quiet enjoyment of my property. The previous operator of the subject property, Crabapple Bed and Bones, were committed to operated a harmonious, tranquil, respectful and profitable business for 20 years with no complaints from me or the nearby residents. I originally purchased my property knowing that Crabapple Bed and Bones was located in an AG-1 zone, with full understanding that there is a minimum 200 ft setback between any outdoor dog run/pens/play areas and my property line. The AG-1 zoning 200ft setback insured that I would not have any noise or visual disturbance from additional outdoor constructed enclosures used in the manor described. In December 2019 when the new operator purchased Crabapple Bed and Bones and renamed it Ruff House, they immediately and unlawfully erected fetched area for a dog run/pen/play area on the West side of the building some 80 ft from my property line, in full violation of the AG-1 setback. The owner did this without any permit or variance which is required by the City of Milton. They have continued to use this fenced dog pen for 9 1/2 months in full violation. I and many other adjacent residents have had made many calls and inquiries, been involved in zoom and face to face meetings, conference calls, letters, and emails with many high officials in the City of Milton with no resolution to the issue. Even one of the DRB board members said “I cant believe this has been going on this long with our city”. I have called the Milton Police Dept to report excessive noise disturbance. The police officer in his report stated he observed excessive barking both inside and outside of the building. A recent meeting was held with one Ruff House owner (not both owners??) with adjacent property owners and several other nearby property owners, about 10 families in total. We were there to listen too what Ruff House had planed that would ensure our property values would not be effected, that the noise and visual disturbance from outdoor kennel operations would not be an issue. But all they wanted to know was our concerns which they already should have known after 10 months of complaints to the City. This 11 hour ploy to satisfy one of the DRB’s board members suggestion to meet, when in fact they have had over 9 months to try and discuss and propose solutions. This is not a problem the residences have created, it is self inflicted! This unlawful infraction has prevented and interfered with my tax paying constitutional rights to a quiet and peaceful enjoyment of my property. Additionally, the physical and emotional stress caused by outdoor dogs barking 7 days a week, each and every morning starting at 7a.m., as they let dogs out into this fenced pen less than 120 ft from my bedroom window, has caused emotional mental stress, and lack of sleep and extreme concerns for my homes value. This dog pen is used throughout the day from 7 a.m. - 6p.m. everyday of the week. The Ruff House owners purchased this property knowing of the AG-1 restrictions regarding additional outdoor kennel operations but choose to ignore them. Why would an experienced entrepreneur buy a piece a property to house their business and after purchasing and move in decide the property they purchased is not big enough for ther business. In my opinion this is a “Self-inflicted Hardship”. Ruff House should not seek to vary conditions and restrictions that run with the land and exist under an according to the recorded Plat, including easements, set-backs, use restrictions, and current zoning ordinances because of an inadequate due diligence prior to purchasing. Ruff House owners are now seeking your approval to expand the 4 walls of their building outward with outdoor kennel operations at the unrecoverable cost of my tax paying constitutional rights to a safe, calm, pleasant relaxing enjoyment and personal financial prosperity of my property. The result of the September 1st, 2020 DRB meeting was a 7-0 vote against the design requested for the variance due to the severe impact to the adjacent and surrounding properties economic value, noise and visual disturbance and possible health concerns with the volume of animals in outdoor runs on such a small piece of property. Especially located at one of the most prominent intersections in the City of Milton. I highly recommend reviewing the comments made by the 7 DRB members (recorded during DRB meeting of Sept 1, 2020.. starting time 3hrs:14 min of the recording http://miltonga.granicus.com/MediaPlayer.php? view_id=2&clip_id=2425) regarding this issue because I believe the meeting minutes sent for your review do not adequately reflect the DRB’s concerns and reasons for a unanimous decision to disapprove. You cannot and should not ethically grant favor at any level of one property owners financial return over the long time investments of the adjacent and surrounding properties. With all this being said I believe the proposed variance is not feasible, will have substantial negative impact to the surrounding area and should be denied any further consideration by this board. Respectfully, Grace Dunn 630 Dorris Rd Milton, GA 30004 770-823-7102 From:Denise Brown To:Robyn Macdonald Subject:Riff house v20-19 Date:Friday, October 16, 2020 8:47:23 AM CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links, especially from unknown senders. I live on Dorris Road and I am opposed to the variance sought by Ruff House. I believe they can operate their business the way the prior owners did without causing issues with the neighbors. Clearly the variance is not necessary because the prior owners operated for years without it. The variance will needlessly increase the noise because they leave the dogs out for extended periods. This negatively impacts the values of the homes in the neighborhood. I respectfully request that the variance be denied. Thank you, Denise Brown Sent from my iPhone From:Marty Juravel To:Robyn Macdonald Cc:Jake Ward; Jason Cole; Hodge Patel; Todd Chernik; Brenda Hamstead; Kim Keller; Don Curt Subject:Ruff House Zoning variance request Date:Friday, October 16, 2020 8:44:15 AM CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links, especially from unknown senders. Dear ZBA members: We are not comfortable attending this hearing in person due to the Covid-19 pandemic and wish to submit the following request to the ZBA. We request that the Zoning Board of Appeals reject the Ruff House Zoning variance requests. Our request for denial is based on the following: The DRB formally voted 7-0 to recommend denial of each of the four variance requests. This vote was a unanimous vote against the applicant. The DRB also suggested to the Ruff House that they try to work with the neighbors to try and come up with a plan that will satisfy everyone. We met with Mr. Cammack in a “Town Hall Meeting” on September 30th at the Broadwell Pavilion. At this meeting, Mr Cammack along with his attorney, Mr. Beard, made no effort to answer or resolve any of our issues. Their only comment was that they had to have their variances, and would do interior noise mitigation and work on the disgusting runoff. When questioned about their threat of lawsuit to us if we say anything about them, they told us they will not take down the threat of legal action against us which means that if any of us were to make any public statements against them, we can be sued for slander and libel. When asked about the “Conflict of Interest” of the Law Firm with the Chief Judge of the City of Milton ,who is also partner in that firm, they refused to answer the question relating to recusal of the Judge in this case. When we asked about their zoning violations, they would not answer that either. They called this meeting with no intention of trying to work anything out with us but only to say they complied with the DRB request to meet with us. We made suggestions to them that the prior owner had a very successful Boarding business and why not increase their boarding capabilities instead and comply with the zoning laws as did the prior owner. They had no response to this suggestion and we have not heard one word back from them since the meeting. If this appeal is approved, there will probably be 80 or more dogs outside in pens in constantly rotating groups barking all day long 7 days a week with teenagers shouting at them or using airhorns to break up fights. This will greatly increase the noise level and make this completely intolerable for all the neighboring homeowners. Milton prides itself in being a nice quiet community. How can this be considered quiet with 80 or more dogs barking all day from 7am to 6pm or later. We hereby request the appeal be denied as they are not in compliance with the zoning laws and have no desire to try and work with the neighbors affected to mitigate the problems. Sincerely: Philip M. & Martha A. Juravel No Text THE HILBERT LAW FIRM A LIMITED LIABILITY COMPANY MAILING ADDRESS: KURT HILBERT 205 NORCROSS STREET MANAGING MEMBER ROSWELL, GA 30075 To CONTACT WRITER: EMAIL: KHILBERTQa HILBERTLAW.COM OF COUNSEL DIRECT DIAL: 770-551-9310 EXT 101 MELANIE ELLWANGER FACSIMILE: 770-551-9311 DOUGLAS JACOBSON WEBSITE: www.hilbertlaw.com SUSAN GREEN MILLER August 28, 2020 VIA FIRST CLASS U.S. MAIL HAND DELIVERY TO CITY OF MILTON CERTIFIED MAIL RETURN RECEIPT REQUESTED; VIA EMAIL: steven.krokoff@cityofmiltonga.us; jbeard@mhtlegal.com; kjarrard _ iarrard-davis.com; pfrickey@jarrard-davis.com City of Milton 2006 Heritage Walk Milton, GA 30004 Mayor Joe Lockwood and all Councilmembers Design Review Board Jeff Dufresne Charlie Roberts Redi Casey Beniquez Palmer Lee Collins Laura Wysong Tim Bryan 2006 Heritage Walk Milton, GA 30004 City Manager, Steven Krokoff 2006 Heritage Walk Milton, GA 30004 City of Milton City Clerk 2006 Heritage Walk Milton, GA 30004 Paul Frickey, Esq. City of Milton Attorneys Jarrard & Davis, LLP 222 Webb Street Cumming, GA 30040 RECEIVED AUG 31 2020 City of Milton Community Development Re: Opposition to APPLICATION NO.: V20-19; V20-04, as amended, and Variances from Section 64-415(a)(9); TAX PARCEL ID NO.: 22-398009540206 PROPERTY LOCATION: 640 Dorris Road, Milton, Georgia STATUTORY ANTE-LITEM NOTICE (O.C.G.A. 6 36-33-5 et seq.) Bear Mayor and Counsel, Legal Counsel, City Manager, Design Review Board, and City Clerk, This law firm represents Grace Dunn (herinafter "Client"), the owner of real property commonly known as 630 Dorris Road, Milton, Georgia, immediately adjacent to and abutting the "Ruff House Kennel and Day Care" (hereinafter "Ruff House") operating at 640 Dorris Road, Milton, Georgia (hereinafter "Subject Property"). Both properties are platted under a recorded subdivision plat, under an AG -1 zoning classification. This letter constitutes my Client's Constitutional objections to the Application and current Variance request(s), and as may be amended, as well as an ante-litem notice to the City of Milton. For information purposes only, my Client, by and through her counse, has attempted to negotiate mitigation conditions with Ruff House's attorneys. Although several communications have passed back and forth, no formal "meeting of the minds" or written agreement (in order to be enforceable) has been able to be reached between the parties. Accordingly, my Client has no choice, but to submit her objections and Constitutional reservations of rights at this juncture. Material Facts: 1. The Applicant is a different company and much expanded business operation than the previous commercial enterprise. The prior company is dissolved and defunct with the Georgia Secretary of State. (Ex. ) 2. Section 64-415(a)(9) requires 200 hundred feet of separation between dog kennels and property lines. Open air enclosures for animals witin 200 feet of a property line is not permissible under the current ordinance. Id. 3. The Subject Property and my Client's property are part of a subdivision and recorded under a plat (Plat Bk 367, p. 113) recorded by the previous owner that runs with the land.. The flat specifically references the City of :Milton Zoning Ordinances and incorporates there by refernce into the Plat. The setbacks on the Plat for adding to the existing building are "minimum" setbacks. 4. huff House has installed existing fencing without a variance or permit (Ex. G) from the City of Milton for several months (since approximately January 2020) in violation of the Ordinace. The fencing remains despite multiple letters from Milton advising of the violation. (Ex. ) Counsel for huff House eventually submitted two (2) fence applications.. 2 5. The fencing currently as erected on the West side encroaches on the mandated 200 foot separation from my Client's property line - the encroachment is approximately 75-80 feet from the property line. 6. On January 2,2020, Ruff House, through its counsel Jonathan Beard, Esq., originally applied for a variance under the name "Crabapple Bed and Bones" a prior business name of a prior owner of the owners of the Subject Property. The former company is defunct and dissolved with the Georgia Secretary of State. Crabapple Bed and Biscuit, Inc. is not an active corporation in the State of Georgia and has no legal standing to seek a variance. 7. The original application sought 13,000 sq feet of exterior open air enclosure on the 8. The amended variance appears to seek to ratify the 200 sq ft of (currently illegal) open air fencing on the west side of the Subject Property directly encroaching on my Client's property rights and her rights under the Plat and her deed. 9. The 13,000 sq ft of proposed fencing was not used as an open air dog pen by the prior owner. However, even if it were used for such purposes (which there is no presented evidence of such prior use in the applciation), such use was an illegal use as no variance was obtained for such use to overcome the 200 ft separate requirement. An ilegal prior use cannot be relied upon to grant a current variance. 10. The current variance request seeks a reduction of the 200 feet separation to 50 feet in some areas. The west side existing fence appears to be approximately 75 feet from my Client's property. The 200 sq ft was installed without any permitting through the City of Milton. 11. The existing fencing and use and the proposed additional fencing has and continues to be a public and private nuisance for sight and sound as contemplated under O.C.G.A. § 41-1-1 et set. 12. The noise and sight interference is extreme. See video link below: https://www.dropbox.com/s/`fadmRxeahsocx9vZyideo%2OJul%2025%2C%207%2007%203991o2OAM.m ov?dl=O 13. and rights to bring suit against Ruff House and its proprietors, the City of Milton and anyone else who participates in and contributes to the creation and ongoing 3 maintenance of the nuisance under O.C.G.A. § 41-1-1 et seq. This letter shall further constitute an ante-litem. notice of purposes of Georgia law and municipal law. Accordingly, my Client demands that the variance request not be granted • the DRB, BZA, Mayor and City Council as it will create, perpetuate and maintain a public and private-mikm&W.Wn i�- - rights. As a means to resolve the variance dispute against the City of Milton, its Mayor, Council and other representatives, and for purposes of compromise and settlement and for• oses of fulfill i the ante-litem notice.• • rest abatement mechanisms to be required and installed as conditions on any such variance approval as follows. In good faith, my Client demands the following conditions be imposed on the variance and to avoid litigation with the City of Milton - 9 against the City of Miltonand its representatives, if and only if, all of the of the Applicant. If of Milton:.1:.- impose condi within ninety 1 days of the date of this letter or as required ,. y statute.' Zoning Classification: AG -1 zoning under the Milton Code provides: "provided buildings housing animals are fully enclosed and at least 100 fet from all property lines and pens, runs, etc. which are not located in a fully-enclsosed building are at least 200 feet from all property lines." (Ex. A) Milton Variance Criteria: Milton's Zoning Ordinance Section 64-1883 (Ex. B) requires the following for a variance to be granted: "A variance must be based upon credible evidence submitted at a public hearing before the board of zoning appeals demonstrating compliance with subsections (1) through (4) of this section. (1) Relief, if granted, would not offend the spirit or intent of this zoning ordinance; (2) There are such extraordinary and excetional situations or conditions pertaining to the particular piece of property that the literal or strict application of this zoning ordinance would create an unnecessary hardship due to size, shape or topography or other extraordinary and excetional situations or conditions not caused by the bariance applicant. (3) Relief, if granted would not cause a substantial detriment tot the pubklic good and surrounding properties; and (4) That the public safety, health and welfare are secured, and that substantial justice is done. 1 A notice does not substantially comply with O.C.G.A. § 36-33-5(e) unless a specific amount is given that would constitute an offer that could be accepted by the municipality. In other words, O.C.G.A. § 36-33-5(b) and (e) together require a claimant to provide the relevant municipality with information about the events giving rise to his or her injuries, as well as a demand for the specific amount of monetary damages the claimant is seeking for said injuries, which allows the municipality to make an informed decision about whether to accept the claimant's offer, make a counter-offer, or take other action to resolve the claim and thereby avoid costly, unnecessary litigation. Pickens v. City of Waco, 352 Ga. App. 37, 833 S.E.2d 713 (2019) 5 Use Regulations are governed by Section 64-415 (Ex. B-1); Purposes of Ordinance is governed by Section 64-2. (Ex. B-2); Overlay District is governed by Section 64-1119 (Ex. B-3); Rquirements for Agricutural type uses (Ex. B-4); Maintenance responsibility of owners is governed by Section 60-52 (Ex. B-5); Fulton County Agricultural District regulations are governed by Fulton County Article V (Ex. B-6); Noise Control is governed by Article VII (Ex. B-7). • 1. Criteria 1: To begin with, my Client's property was part of the original tract of land including Ruff House. The prior owner decided to subdivide the land and carved out my Client's property. A Plat was recorded vesting my Client's rights according to the recorded Plat. Therefore, my Client has vested property rights through a recorded plat that is subject to the zoning at the time it was platted. Her property rights run with the land and her deed. Ruff House cannot now seek to vary conditions and restrictions that run with the land and that exist under and according to the recorded Plat - including easements, setbacks, use restrictions, zoning restrictions. Further, the existing fence on the west side of the property was installed without permitting or a zoning variance and is currently erected illegally. To grant a variance based upon an current illegal use, facially, "offends the spirit or intent" Milton's zoning Ordinance and Georgia law. The primary purposes of the Zoning Ordinance are set forth in Section 64-2 and Section 64-1119. Additionally, the variance request here does not promote the health safety and welfare of the general public or as to my specific Client. The noise and sight nuisance that would be created and maintained by the variance clearly undermines the health, safety and welfare of Milton and its citizens. O.C.G.A. § 41-1-1. Notably Section 64- 1119 (a)(12) provides that an important purporse of the overlay district is "To encourage containment of existing commercial areas, to provide for transition between commercial areas and residential areas and discourage encroachment of the commercial areas into the residential areas." The variance erodes "desirable living conditions" and phsyically encroaches on property rights. The noise and sight encroachments, rising to the level of a nusiance, dearly undermine the spirit and intent of the zoning ordinances. My Client has submitted a video of the noise pollution on July 23, 2020, which exemplifies the issue that occurs in concentrated 1.1 fashion virtually every single morning between the times of 7:00am and 9:00am, and continues sporadically throughout the day. 2. Criteria 2: This criteria requires "extraordinary and exceptional situations or conditions" to warrant the grant of a variance. There is no evidence of such circumstances in the current variance request. The apparent hardship is based on the size of the building structure itself not being able to house the number of animals being boarded,—and thus, necessitating, outdoor pens. No reason has been given as to why Ruff House could not increase or re -structure the size/space of its interior space, as opposed to taking measures to encroach on neighboring residential properties. The northeast side has a septic field which the new enclosure will directly impact and cover. The proprietors knew or should have known the width and depth of the Subject Property prior to purchase. It is clear that Ruff House will take their own steps to build fences and open air enclosures, wthout compliance with Milton ordinances and regulations. The curently existing west side fence is an example of this which has been in place since January 2020. The City of Milton has given repeated notices of violation to Ruff House requiring removal of the fence, yet they do not comply. (Ex. F) It appears clear that the need for the outdoor pens is do solely to increase in business, and not any exceptional or extraordinary circumstances or characteristics of the Subject Property itself. While expansion of business is commendable, Ruff House could find other locations to better suit its increase in business. Expansion in business does not equate to any cognizable hardship under the ordinance. The prior compnay Crabapple Bed and Bones operated a kennel at the location without exterior pens for over 20 years and thre was no complaint of hardship by that owner. 3. Criteria 3: There can be no question that if the variance is granted it will create and maintain a permanent nuisance at the Subject Property—which is a substantial detriment to the public and surrounding properties. It will be daily interferring with the property rights of my Client and the general surrounding public. My Client cannot quietly and peacefully cannot enjoy her property now, as is her Consitutional right. Ruff House removed approximately 25 mature trees which further contributed to the increase in visual and auditory nuisance. (Ex. E). Ruff House appears to have intended to install fencing without permitting, and participated in the removal of the trees 7 which has aided in their plan to create open-air animal enclosures. One neighbor has already been forced to sell, and move from the community, in order to maximize her property value before any variance is approved. A variance to commercial property should not be unreasonably encroaching on residential property rights. 4. Criteria 4: As mentioned above, if the variance is granted, the City will be participating in the creation and maintenance of a public and private nuisance. O.C.G.A. § 41-1-1. This does not support the health, safety and welfare. Substantial justice requires that the Constitutional rights of the neighboring property owners be honored, as they purchased their land subject to the zoning and restrictions that ran with the land at the time of purchase_ The zoning here is clear that nothing can be within 200 ft of a property line. The variance request offers nothing to show a sufficient reason to overcome this restriction. The variance also does not even present any mitigation measures for sound or sight encroachment. No variance should be granted absent conditions to at least attempt to mitigate the extreme noise creation. An illegal fence exists currently creating a nuisance that has been ongoing for at least 6 months. Commerical business enterprises and their interests in profit on AGA zoning property, should not trump the vested property rights of neighboring residential property owners, nor should they impose a nuisance and inverse condemnation. Such is not substantial justice. 5. Finally, no "credible evidence" has been submitted to warrant granting of the variance. No evidence of hardship has been submitted to Milton that is legally sufficient to justify the granting of the variance requests. Of substantial importance, while the variance request is pending, the Applicant is currently in knowing violation of the ordinance (which has been noted by the City Attorneys on several occasions (Ex. F)) and yet has refused to remove the violation pending the City's decision. This is tantamount to bad faith, provides no credible evidence and is promotes substantial injustice - not justice. Preservation of Constitutional Rights: My Client respectfully hereby preserves all of her Constitutional rghts under the 5th and 14th Amendment of the U.S. Constitution and the Constitution of the State of Georgia, as granting this variance request would result in unconstitutional taking of property, and property rights, rising to the level of an inverse condemnation through nuisance such that my Client wood be deprived of due proess of law and without just compensation. Separately, my Client preserves all of her rights to seek relief in equity and in tort or other statutory damages that may result as consequence of the City of Milton's actions. The granting of the variance request would interfere with vested propertyrights and would constitute a denial of equal protection, cosntitute an arbitrary and capricious act, and denial of rights. Granting of the variance would be an unreasonabe and irrational decision that wuold ne insubstantially related to and actually against the health, safety, and welfare of the public and my Client. My Client lastly preserves any any all challenges to any procedural deficiencies in the application for variance, and as may be amended from time to time. Granting the variance would deny my Client due process under the Milton Code of Ordinances, Fulton County Ordinances and Georgia law, and would be a manifest abuse of power, and contrary to substantial justice in all respects. My Client attaches exhibits in support of her opposition which are incorporated herein expressly by reference. My Client has permanent property rights that run with her land in perpetuity through her plat (Plat Book 367, p. 113) (Ex. C), her deed which incorporates the Plat (as does the Applicant's deed (Ex. D)), and the zoning that existed at the time she purchased. De Castro v. Durrell, 295 Ga. App. 194, 671 S.E.2d 244 (Ga. Ct. App. Nov. 18, 2008); Martin v. First State Bank, 231 Ga. 511 (1973); Reid v. Std. Oil Co. 107 Ga. App. 497 (1963)(held restrictions under a general plan adopted by the owner to sell lots may in equity be imposed on the lands, beyond the express restrictions contained in the deeds to the purchaser, on the theory of implied covenants); Smith v. Bruce, 241 Ga. 133, 244 S.E.2d 559 (1978); Adair v. Spellman Seminary, 13 Ga. App. 600, 605, 79 S.E. 589 (1913); Fairfield Corp. No. 1 v. Thornton 258 Ga. 805, 374 S.E.2d 727 (1.989); Aspinwall v. Enterprise Dev. Co., 165 Ga. 83,140 S.E. 67 (1927); Schreck v. Blum, 131 Ga. 489,62 S.E. 705 (1908); Montana v. Blount, 232 Ga. App. 782,504 S.E.2d 447 (1998) Gibson v. Gross, 143 Ga. 104,84 S.E. 373 (1915). The Original Plat shows no encroachments for fencing and makes the plat expressly subject to the zoning. "A purchaser of land in Georgia is charged with notice of every fact shown by the records, and is presumed to know every other fact which an examination suggested by the records would have disclosed." Del oo v. SunTrust Mortg., Inc., 284 Ga. 438, 668 S.E.2d 245, 2008 Ga. LEXIS 829, 2008 Fulton County D. Rep. 3158 (Ga. Oct. 6, 2008); Smith v. Pindar Real Estate Co. 187 Ga. 229 (1938); Jones v. Lanier Dev. Co. 190 Ga. 887,11 S.E.2d 11 (1940). My Client purchased her land with all appurtenances. An "appurtenance to land" means that my Client has a legal right to enforce her property rights as an appurtenance to her land. Godfrey v. Huson,180 Ga, 483 (1935)(held a covenant to keep a lot vacant was an appurtenance to land for the benefit of the adjacent property and under warranty deed conveying such adjacent property "with all appurtenance thereto", adjacent landowners have the right in equity to enforce the restriction against the party attempting to enclose the vacant lot) Based on all of the above and foregoing, prior submissions by Linda Dunlavy, Esq. which are incorproated herein by reference as may be applicable and relevant, including preservation of my Client's Constitutional rights. If the variance is granted, my Client believes that on appeal and ujltimately before the Superior Court of Fulton County, the variance would be declared unlawful. See Stendahl v. Cobb County, 284 Ga. 525, 668 S.E.2d 723, 2008 Ga. LEXIS 851, 2008 Fulton County D. Rep. 3346 (Ga. Oct. 27, 2008)(held in order to have a superior court invalidate the rezoned classification of a neighboring property, the complaining party must show the zoning change (1) abridged the complaining party's constitutional rights, (2) the rezoning decision was the result of fraud or corruption, or (3) the rezoning power was manifestly abused to the oppression of the complaining party.) "When a zoning authority either grants or denies an application for rezoning, it acts in a legislative capacity, and when the constitutionality of that legislative enactment is challenged in court, it is afforded de novo review, i.e., the superior court is not limited to examination of the evidence presented to the zoning authority." Id. "In the de novo proceeding, the appellants may introduce new evidence, including expert testimony." Id. "It is clear that the governing authority with the power to rezone property and the successful rezoning applicant are proper defendants in a suit attacking the grant of a rezoning application." Id. "Zoning is a quasi -legislative matter. However, zoning is subject to the constitutional prohibition against taking private property without just compensation." Barrett v. Hamby, 235 Ga. 262, 219 S.E,2d 399 (1975). "As the individual's right to the unfettered use of his property confronts the police power under which zoning is done, the balance the law strikes is that a zoning classification may only be justified if it bears a substantial relation to the public health, safety, morality, or general welfare." Id. "Lacking such justification, the zoning may be set aside as arbitrary or unreasonable." Id "As these critical interests are balanced, if the zoning regulation results in relatively little gain or benefit to the public while inflicting serious injury or loss on the Q17 owner, such regulation is confiscatory and void." Id. "Moreover, the court specifically rules that for such unlawful confiscation to occur, requiring that the zoning be voided, it is not necessary that the property be totally useless for the purposes classified." Id. "It suffices to void it that the damage to the owner is significant and is not justified by the benefit to the public." Id. I ask that this letter be made a part of the record and part of the review of Design Review Board, BZA and Mayor and Council in their decision. vI also request that the City review what options are available, in good faith and the spirit of compromise, if the variance may be granted, perhaps that it be granted with express conditions as set forth above. If no conditions are permissible, my Client objects to any grant of the Application in toto. Should anyone have any further questions, I remain at your service. The City of Milton and my Client deserve the closest scrutiny of all of these matters and she reserves all legal rights accordingly. Respectfully submitted, this 28th day of August, 2020. THE HIL.BERT L�W FIRM, LLC KURT R."HILBERT, Esq. CManaging Member Georgia Bar No. 352877 Counsel for Grace Dunn (w/ enclosures) cc: Grace Dunn: Jonathan Beard, Esq. Miles Hansford & Tallant, LLC 202 Tribble Gap Road Suite 200 Cumming, Georgia 30040 11 CERTIFICATION OF ZONING As of this date: December 11, 2019 CERTIFICATION REQUESTED BY: Jackie Smith Andersen, Tate & Carr, P.C. One Sugarloaf Centre Suite 4000 1960 Satellite Boulevard Duluth, GA 30097 IDENTIFICATION OF PROPERTY: Subject property for which certification is requested is identified by the following: Address: 640 Dorris Road 22 398009540206 CURRENT ZONING of the subject properties, as located and identified above is AG -1 (Agricultural) (Chapter 64, Article VI, Division 2 of the City of Milton Zoning Ordinance). CERTIFIED B4#Ae;21-e�(— Roby mc], oby AAaclDonald Zoning Manager EXHIBIT 2006 Heritage Walk Milton, GA 30004 P: 678,242.25001 F: 678.242.2499 info@cityofmiltongo.us I www-Cityofmfltonga.us Sec. 64-1883. - Considerations. A variance must be based upon credible evidence submitted at a public hearing before the board of zoning appeals demonstrating compliance with subsections (1) through (4) of this section. (1) Relief, if granted, would not offend the spirit or intent of this zoning ordinance; (2) There are such extraordinary and exceptional situations or conditions pertaining to the particular piece of property that the literal or strict application of this zoning ordinance would create an unnecessary hardship due to size, shape or topography or other extraordinary and exceptional situations or conditions not caused by the variance applicant, (3) Relief, if granted would not cause a substantial detriment to the public good and surrounding properties; and (4) That the public safety, health and welfare are secured, and that substantial justice is done. (Ord. No. 09-06-43, 5 22.3.1, 6-15-2009) g EXHIBIT H Sec. 64-415. - Use regulations. (a) Permitted uses. A building or property maybe used for only the following purposes: (1) Single-family dwelling. (2) Agriculture, general and specialized farming, including: horticulture, plant nursery, greenhouse, dairy farming, livestock raising and poultry raising; provided, however, that buildings used for housing animals must be at least 100 feet from all property lines. (3) Roadside stand for the sale of agricultural products produced on the property. (4) a. For property with a single-family dwelling being the principal use, structures housing livestock, which may be located in the front, rear, or side yards, provided that the structure must be located at least 100 feet from all property lines and at least 150 feet from any occupied structure located on any other property. b. 1. For property without a single-family dwelling being the principal use, and containing five or more acres, structures housing livestock, which may be located in the front, rear, or side yards, provided that the structure must be located at least 100 feet from all property lines and at least 150 feet from any occupied structure located on any other property. 2. For property without a single-family dwelling being the principal use, and containing less than five acres, structures housing livestock, which may be located in the front, rear, or side yards, provided that the structure must be located at least 100 feet from all property lines and at least 150 feet from any occupied structure located on any other property, and provided also that a use permit must first be approved by the city council. (5) a, For property with a single-family dwelling being the principal use, an uncovered riding area, which may be located in the front, rear, or side yards. b. 1. For property without a single-family dwelling being the principal use, and containing five or more acres, an uncovered riding area, which may be located in the front, rear, or side yards. 2. For property without a single-family dwelling being the principal use, and containing less than five acres, provided that a use permit must first be approved by the city council. (6) For property with or without a single-family dwelling being the principal use, and containing five or more acres, a lighted, uncovered riding area and/or an uncovered riding area with designated seating structures for viewing which may be located in the front, rear, or side yards and must be located at least 100 feet from all property lines, provided that a use permit must first be approved by the city council. This use shall not be permitted for property containing less than five acres. (i) For property with or without a single-family dwelling being the principal use, and containing five or more acres, a covered riding area, which may be located in the front, rear, or side yards provided that the covered riding area and must be located at least 100 feet from all property lines, provided that a use permit must first be approved by the city council. This use shall not be permitted for property containing less than five acres. (8) For property with or without a single-family dwelling being the principal use, and containing tenor more acres, a lighted, covered riding area and/or a covered riding area with designated seating structures for viewing, which may be located in the front, rear, or side yards, provided that the covered riding area, lighted riding area and/or designated seating structures for viewing riding areas must be located at least 100 feet from all property lines, and further provide that a use permit must first be approved. This use shall not be permitted for property containing less than ten acres. m =C EXHIBIT E C�✓ (9) Kennel, veterinary hospital or veterinary clinic; provided buildings housing animals are fully enclosed and at from all property lines and pens, runs, etc., which are not located in a fully -enclosed building are at least 201 property lines. (10) Equine garment fabrication: provided buildings do not exceed 2,000 square feet in size and outside storage shall comply with subsection 64-49(b)(3). (b) Accessory uses. A building or land maybe used for uses customarily incidental to any permitted use and a dwelling may be used for a home occupation. (Ord. No. 13-03-160, § 1, 3-18-2013; Ord. No. 15-04243 § 1, 4-27-2015) Sec. 64-2. Purpose and title. (a) Purposes. This ordinance is entered as part of a comprehensive plan designed for the purposes, among others of: (1) Lessening congestion on the roads and streets; (2) Securing safety from fire, flood, and other dangers; (3) Providing adequate light and air, (4) Promoting the health and general welfare; and (5) Encouraging such distribution of population and such classification of land uses and utilization as will facilitate economic and adequate provisions for transportation, communications, roads, airports, water supply, drainage, sanitation, education, recreation and other public requirements. (b) Considerations. These regulations are made with reasonable consideration, among others: (1) To the character of the districts and their peculiar suitability for particular uses; and (2) With a general view of promoting: a. Desirable living conditions.- b. onditions; b. Protecting property against blight and depreciation; and c. Encouraging the most appropriate use of land throughout Fulton County. EXHIBIT -Z Sec. 64-1119. - Purpose and intent. (a) The Rural Milton Overlay District including Birmingham Crossroads applies to all properties within the boundaries of the city as described in the attached map. The mayor and city council finds that historic rural areas and their scenic surroundings are important cultural, recreation and economic assets critical to the public's long-term interest and hereby declares it to be the purpose of this division to recognize and to establish a procedure to protect and plan for the city's crossroads communities. The intent of this division is: (1) To develop guidelines for the preservation and perpetuation of a rural crossroads community which includes Birmingham Crossroads, agricultural related uses, residential development and existing commercial zoning districts within the overlay district based on the description and analysis of their setting; (2) To preserve the integrity of the area, which developed during the late 19th century and early 20th century, through architectural design interpretation and application; (3) To preserve and protect the rural, agrarian and equestrian character of crossroads communities and their surrounding areas; (4) To preserve and to ensure the harmony and compatibility of the character of the area including its physical appearance, natural setting and informal landscaping especially along the rural viewsheds, including the implementation of the Milton Trail Plan; (5) To be aware and respectful of the environment's natural resources and visual qualities; (6) To preserve open space; (7) To preserve, encourage and promote, through the built environment, the sense of place, the sense of ownership, the sense of identity, the sense of evolution and the sense of community present in the area; (8) To ensure existing design characteristics of the crossroads and surrounding areas serve as a standard against which plans for new construction will be judged for harmony compatibility and appropriateness; (9) To encourage and ensure that development that is contemporary in design and materials compliments and is compatible and sensitive with the existing character of the area through its proportion, scale, design, style, placement, position and architectural qualities; (10) To develop a community setting that has individuality and is unique and does not imitate building types or styles unrelated to these crossroads community; (11) To provide for the construction of buildings and spaces that is human in scale, welcoming and approachable; (12) To encourage containment of existing commercial areas, to provide for transition between commercial areas and residential areas and discourage encroachment f EXHIBIT E commercial areas into the residential areas; and (13) To promote sustainable development. (b) This division is adopted as part of a strategy designed for the purpose, among others, of preserving and protecting these areas and enhancing their important aesthetic appearance through regulatory measures, while advancing community development goals, promoting economic development and substantially protecting and promoting health, safety, order, prosperity and general welfare of the city's citizens. (c) Included within the scope are regulations governing the location of buildings on the site, the design and material of buildings and other structures, landscaping and screening provisions, pedestrian circulation and other items. Whenever provisions in this division conflict with any other articles in this zoning ordinance, or other city ordinances, or regulations, the stricter of the two provisions shall prevail. (Ord. No. 14-06-207, § 1, 6-16-2014) Sec. 64-1144. - Requirements for agricultural type uses. (a) Height (1) Comply with the zoning district's height requirement. (b) Parking. (1) All parking spaces built, which exceed the minimum number required by the city zoning ordinance, shall be constructed of pervious material. (c) Stormwater management facilities. (1) All facilities shall be in compliance with the stormwater management manual (chapter 20, article IV of the city Code). (2) All facilities shall be designed to create a natural look. (3) Stormwater better site designs and nonstructural stormwater management practices shall be used whenever possible. (4) All detention facilities shall have a minimum ten -foot -wide landscape strip planted to buffer standards with evergreen plantings exterior to any required fence and/or required access area. (S) Detention facilities shall be located in the least conspicuous area of the site as engineering standards will allow. (6) The creation of shared stormwater management facilities is encouraged. (d) Fencing and height (1) In yards adjacent to an exterior street an equestrian fence is required. (2) Fences in yards adjacent to an exterior street shall not exceed 60 inches from finished grade. _ (3) Retaining walls shall be constructed of block or poured concrete with natural stone veneer or solid stucco and brick only. If viewed from the street, walls shall provide a 360 -degree veneer as described above. Retaining wails above three feet high'shall have a continuous planting of evergreens. (4) Opaque fences are prohibited in yards adjacent to an exterior street. (Ord. No. 14-06-207, § 1, 6-16-2014) EXHIBIT L( Sec. 60-52. - Maintenance responsibility. (a) The owner of the property and/or their agents, shall be responsible for the installation, preservation, and maintenance of all planting and physical features (installed or vegetated natural areas) required by zoning resolution, conditions of zoning, variance, or permitting and the Milton Tree Conservation Article, All plant material shall be maintained in a healthy and growing condition. (b) Any dead, unhealthy, or missing trees, or trees disfigured by severe or excessive pruning, shall be replaced with vegetation that conforms to the standards of this article and the approved site and/or subdivision plan, In the case of removal of existing original trees from required vegetation protection areas, the replacement requirements will be that which were shown on the approved plan. If no plan exists, area of disturbance must conform to requirements of this article or the zoning resolution. (c) All required buffers, streetscapes, vehicular use areas, and other landscape areas shall be properly maintained to encourage good health and vigor. (d) All tree guy wires shall be removed upon establishment of the planted material, typically after one year of the installation. (Ord. No. 10-07-67, § 6, 7-7-2010) o EMHl13lT E 5 ARTICLE V. -AGRICULTURAL DISTRICT REGULATIONS Footnotes: —(4)— Editor's (4)— Editor's note— Adopted by the board of commissioners, March 7, 1990. 5.1 -AG-1 Agricultural District. 5.1.1 AG -7 District intent and scope. Regulations set forth in this article are the AG -1 District regulations. Article XIX should be consulted to determine uses and minimum standards for uses allowed by administrative or use permit. The AG -1 District is intended to encompass lands devoted to a wide range of uses including individual parcels devoted to residential use, single family subdivisions, agricultural and closely related uses. 5. 1.2 Use regulations. A. Permitted uses. A building or property may be used for only the following purposes: 1. Single family dwelling. 2. Agriculture, general and specialized farming, including: horticulture, plant nursery, greenhouse, dairy farming, livestock raising and poultry raising provided, however, that buildings used for housing animals must be at least 100 feet from all property lines. 3. Roadside stand for the sale of agricultural products produced on the property. 4. Riding stable other than accessory, provided buildings housing animals are at least 100 feet from all property lines and the lot is not less than ten acres. Standards for keeping horses other than for a nonaccessory public riding stable are the same as the standards contained in section 4.8.1 pertaining to the keeping of horses in a single family dwelling district. S. Kennel, veterinary hospital or veterinary clinic, provided buildings housing animals are fully enclosed and at Feast 100 feet from all property lines; and pens, runs, etc. which are not located in a fully enclosed building are at least 200 feet from all property lines. B. Accessory uses. A building or land maybe used for uses customarily incidental to any permitted use and a dwelling may be used for a home occupation. 5.1.3 Development standards, A. Height regulations No building shall exceed 40 feet in height. (Amended 2!7/96) B. Minimum frontyard: 60 feet. EXHIBIT E /� C. Minimum side yard. — 25 feet adjacent to interior line. — 40 feet adjacent to street. D. Minimum rear yard:50 feet. E. Minimum lot area: — one acre with frontage on paved road. — three acres with frontage on unpaved road. (Added 516/92) F. Minimum iot width. 100 feet. G. Minimum lot frontage: 35 feet adjoining a street. (Amended 11 /3/93) H. Minimum heated floor area: There is no minimum heated floor area in this district. I. Minimum accessory structure requirements. Accessory structures may located in rear or side yards, but shall not be located within a minimum yard. j. Conservation subdivision. The development standards of a conservation subdivision shall be in accordance with Section VI of the Fulton County Subdivision Regulations. (Added 05/05/04) 5.1.4 Other regulations. The headings below contain provisions applicable to the AG -1 District: Development regulations. Article XXXIV Exceptions. Section 4.3 Floodplain management. Section 4.24 Off-street parking and loading. Article XVIII Outside storage. Section 4.2 Landscape area and buffer regulations. Section 4.23 River protection. Metropolitan River Protection Act Signs. Article XXXiiI 7/21/2020 ARTICLE VII, - NOISE CONTROL Milton, GA Code of Ordinances Footnotes: --- (3) Editor's note-- Ord. No. 17-09-327, § 1, adopted Sept. 13, 2017, repealed art. Vil in its entirety, and enacted new provisions to read as herein set out. Former art. Vil, §§ 20-657-20-660, 20-680, 20-681, 20-701, 20-702, 20-722, 20-723, pertained to similar subject matter, and derived from Ord. No. 06-11-16, § 1(ch. 12, art. 5, §§ 2, 4-6), adopted Nov. 21, 2006, Ord. No. 07-04-23, § 1(ch. 12, art. 5, §§ 2, 4-6), adopted April 19, 2007, and Ord. No. 07-04-27, §§ 1-10, adopted April 19, 2007. Sec. 20-656. - Definitions. (a) Scope. Words not defined herein shall be construed to have the meaning given by Merriam - Webster's Collegiate Dictionary, eleventh edition. (b) Use and interpretation. The following shall apply to the use of all words in this ordinance: (1) Words used in the present tense shall include the future tense. (2) Words used in the singular shall include the plural and vice versa. (3) The word "shall" is mandatory. (4) The word "may" is permissive. (c) Terms. Acoustic music means music produced by a musical instrument whose sound is not electronically Amplified sound means sound that is increased in the strength. Commercial establishment means a business located on property as defined in Commercial property. Commercial property means property that is zoned and/or developed with nonresidential uses in T-6, T- 5, T-4, T-4 Open, T-4 Permissive, C-1, C'-2, O-1, MIX, and M-1 zoning districts. It also includes uses permitted with a use permit in other zoning districts listed in section 64-.1121. "allowed use chart" that are in the following categories: Commercial, Agricultural, and Institutional Type Uses. Commercial user means a business that is not an individual property owner or renter that receives compensation for providing products or services. Construction machinery means machines or tools powered by electricity, fuel, or by hand that is used to construct buildings, roads, walls, and other accessory structures. Consumer fireworks means any small fireworks devices containing restricted amounts of pyrotechnicE composition, designed primarily to produce visible or audible effects by combustion, that comply with the construction, chemical composition, and labeling regulations of the United States Consumer Product Safety 7/21/2020 Milton, GA Code of Ordinances Commission as provided for in Parts 1500 and 1507 of Title 16 of the Code of Federal Regulations, the United States Department of Transportation as provided for in Part 172 of Title 49 of the Code of Federal Regulations, and the American Pyrotechnics Association as provided for in the 2001 American Pyrotechnics Association Standard 87-1, and additionally shall mean Roman candies. Garage machinery means machines or tools powered by electricity, fuel, or by hand that is used in maintaining or building various types of automotive items such as engines of all types, car or truck chassis. Lawn maintenance machinery means machines or tools powered by electricity, fuel, or by hand that are used to mow, trim, fertilize, seed, till, or other associated actions to maintain lawns, golf courses and other types of landscapes. Loud and unreasonable noise means any sound or noise, including, but not limited to, music or speech, which is so loud in volume level and of such duration or character as to disturb the comfort, health, peace, safety, quiet enjoyment or repose of one or more persons of ordinary sensibilities. Mechanical noise means noise produced by lawn maintenance or garage machinery. Mobile amplification means sound produced that is increased in the strength or amount which is typically electronic, but not solely, and moves such as car stereos. Outdoor amplification means sound which is typically electronic but not solely, such as a bull horn and but the source is amplified sound located outside the confines of a building or structure. Residentially usedproperty means property that is zoned and or developed with residential uses in T-6, T-5, T-4, T-4 Open, T-4 Permissive, MIX, AG -1, R-1, R-2, R -2A, R-3, R -3A, R-4, R -4A, R-5, R -5A, R-6, TR, A, A -L, NUP, and CUP. Sound amplification means sound that is artificially increased in strength, irrespective of the means. Sound amplification equipment means equipment that artificially increases the strength or amount of sound, typically electronic but not necessarily so. Waste haulers means companies granted non-exclusive contracts to remove residential and commercial refuse and waste which includes items to be recycled. ( Ord. No. 17-09-327 , § 1, 9-13-2017) Sec. 20-657. Loud, disturbing noises prohibited generally. (a) It shall be unlawful for any person to create or assist in creating any loud and unreasonable noise in the city. (b) The general prohibition in paragraph (a) includes the use of consumer fireworks that create loud and unreasonable noise, except during the following dates and times; after the time of 11.117 7/21/2020 Milton. GA Code of Ordinances 10:00 a.m. and up to and including the time of 11:59 p.m. on January 1, the last Saturday and Sunday in May, July 3, July 4, the first Monday in September, and December 31 of each year; and beginning at the time of 12:00 midnight and up to and including the ending time of 1:00 a.m. on January 1 of each year. (Ord. No. 17-09-327 § 1, 9-13-2017; Ord. No. 18-07-366 § 1, 7-9-2018) Sec. 20-658. - Measurement. For the purpose of determining db(A)s as referred to in this article, the noise shall be measured on the A -weighting scale on a sound level meter of standard design and quality having characteristics established by the American National Standards Institute. (Ord. No. 17-09-327, § 1, 9-13-2017) Sec. 20-659. - Activities permitted that produce sound impacting residential life. (a) The following activities are permitted in any residentially zoned area of the city or within 300 feet of any residentially occupied structure in any zone of the city: ACTIVITIES PERMITTED THAT PRODUCE SOUND IMPACTING RESIDENTIAL LIFE Monday Saturday Sunday Federal through Holidays Friday Operation of construction machinery 7:30 a.m. 9:00 a.m. by commercial users* to 7:30 to 6:00 p.m. p.m. Lawn maintenance and garage 7:30 a.m. 9:00 a.m. 9:00 a.m. machinery by commercial users* to sunset to sunset to sunset Operation of construction machinery 7:30 a.m. 9:00 a.m. 9:00 a.m. 9:00 a.m. or garage machinery by individuals on to 7:30 to 6:00 to 6:00 to 6:00 their residential property which p.m. p.m. p.m. p.m. registers more than 65 db(A) at the nearest complainant's property line. 7/21/2020 Milton, GA Code of Ordinances Operation of lawn maintenance 7:30 a.m. 9:00 a.m. 9:00 a.m. 9:00 a.m. machinery by individuals on their to sunset to sunset to sunset to sunset residential property. p.m. 11:00 p.m. Operation of waste haulers 7:30 a.m. 7:30 a.m. 7:30 a.m. 7:30 a.m. to 7:30 to 7:30 to 7:30 to 7:30 p.m. p.m. p.m. p.m. *The director shall have the discretion to authorize an administrative variance for golf and equestrian uses to adjust the start and stop times, on a case by case basis, if the director believes that such variance is in the best interest of the user and affected property owners and as otherwise authorized by section 20-667. (b) Any mechanical noise other than that regulated in subsection (a) which registers more than 65 db(A) at the nearest complainant's property line is a violation. (c) This section shall not apply to: (1) Emergency operations designed to protect the public health and safety; or (2) Work by city crews or city contractors in a right-of-way or utility easement when the department responsible for the work has determined that it is necessary to undertake the work. (3) Activities conducted on public playgrounds or private school grounds, which are conducted in accordance with the manner in which such spaces are generally used, including but not limited to, school athletic and school entertainment events up to 12:00 midnight. ( Ord. No. 17-09-327. § 1, 9-13-2017) Sec. 20-660. - Amplified sound produced within all zoning districts. (a) It shall be unlawful to operate or allow operation of any sound amplification to create sounds other then as set forth in the following table: Amplified Sound that Impacts Sunday-- Friday= Any Other Time Residential Life Thursday Saturday 8,00 a.rn.-9:00 8:00 a.m.-- p.m. 11:00 p.m. 7/21/2020 Milton, GA Code of Ordinances Registering up to 50 db(A)* Permitted Permitted Permitted Registering 50 db(A) up to 55 db(A)* Permitted Permitted Not permitted Registering 55 db(A) or greater* Not permitted Not permitted Not permitted Registering up to 50 db(A) for Permitted Permitted Permitted multifamily uses or other residential arrangements where boundary lines cannot be readily determined.** Registering 50 db(A) up to 55 db(A) Permitted Permitted Not permitted for multifamily uses or other residential arrangements where boundary lines cannot be readily determined.** Registering 55 db(A) or greater for Not permitted Not permitted Not permitted multifamily uses or other residential arrangements where boundary lines cannot be readily determined.** In the public right-of-way, including Permitted Permitted Not permitted streets or sidewalks, or in city parks without having actual on-site possession of a permit issued by the City of Milton Police Department registering up to 65 db(A) ten feet or more from any electromechanical speaker.*** 7/21/2020 Milton. GA Code of Ordinances In the public right-of-way, including Not permitted Not permitted Not permitted streets or sidewalks, or in city parks without having actual on-site possession of a permit issued by the City Milton Police registering 65 db(A) or greater ten feet or more from any electromechanical speaker.*** The use of mobile amplification Permitted Permitted Not permitted registering up to 60 db(A) ten feet or more from the equipment. The use of mobile amplification Not permitted Not permitted Not permitted registering 60 db(A) or greater ten feet or more from the equipment. * As measured anywhere within the boundary line of the nearest residentially occupied property. ** As measured from any point within the interior of another residential unit in the same complex or within the boundary line of the nearest residentially occupied property. ***Sound amplification equipment may not be operated more than ten feet off the ground. in addition to the person operating or allowing the operation of sound amplification equipment in violation of this subsection, the person to whom the permit was issued must be present at the location and during the times permitted and shall be liable for any and all violations. (b) The limitations on the operation of sound amplification equipment in [section] 20- 60(a) shall not apply to the operation of horns, sirens, or other emergency warning devices actually being used in emergency circumstances, or to the operation of sound amplification equipment regulated pursuant to section 20-661.1 or in accordance with a permit issued pursuant to_ section 20-661. ( Ord. No. 17-09-327 . § 1, 9-13-2017) 7/2V2020 Milton, GA Code of Ordinances Sec. 20-661. - Permits for additional amplification for residential or commercial uses. (a) [Permit required.] In order to exceed the sound amplification on private property in section 20-660 a permit for additional amplification is required. (b) Application. An application for a permit for additional amplification on private property under this section shall be submitted to the City of Milton Police Department at least one business day but no more than thirty calendar days in advance of the planned use. Specify the proposed location of the sound amplification equipment and the date and time that the sound amplification will begin and end. Permits shall be issued on a first come, first served basis. A permit shall not be issued for a location that is within 100 feet of another location for which a permit has been issued for the same time. The application shall designate and provide contact information for an individual person who shall be in control of the sound amplification equipment and ensure that its use complies with the terms of the permit. Activities regulated under section 20-660(a) and section 20-661.1 shall not be eligible for an additional amplification permit under this section. (c) Notice of tentative approval. When the application meets all necessary requirements, the City of Milton Police Department shall notify applicant of tentative approval, the applicant for a permit shall be responsible for giving written notice of the name, nature, date, and time period of the event, and the name of and contact information for the permit holder to the occupants of each property within 1,000 feet of the property for which the permit has been granted. The notice shall be hand delivered to each occupant or, if the occupant is unavailable, affixed to the front door of the building or business or residential unit at least 72 hours in advance of the event. The permit shall not be actually granted and issued until the applicant submits an affidavit to the City of Milton Police Department that such notices have actually been so delivered. (d) Limits on hours. Permits for additional amplification at a property, or adjacent properties under common ownership, shall be limited to 15 hours in a calendar year. Permits issued pursuant to this section may allow additional amplification only between 8:00 a.m. and 9:00 p.m. Sunday through Thursday and between 8:00 a.m. and 11:00 p.m. on Friday or Saturday. (e) Sound limits. In no event shall a permit be granted which allows the creation of sounds registering more than 70 db(A) anywhere within the boundary line of residentially occupied property. (f) Denial; issuance of exceptional permit. If an applicant has been denied a permit under this section and believes the denial is illegal by virtue of applicable state or federal law, he shall promptly submit a copy of the denied permit application together with a short statement of the reasons he believes he is entitled to a permit to the city manager or his designee. The city manager or his designee shall have the discretion to grant an exceptional permit waiving 7/21/2020 Milton, GA Code of Ordinances locational, time, and/or db(A) requirements, upon his determination that the applicant has made a substantial showing of legal entitlement. Any such request for exceptional permit shall be submitted within seven calendar days to the City of Milton Police Department. (g) Violation. it shall be unlawful to violate the restrictions or requirements of this section or the terms of a permit issued pursuant to this section. ( Ord. No. 17-09-327. § 1, 9-13-2017) Sec. 20-661.1. - Outdoor amplification and music at commercial establishments. (a) It shall be unlawful for any commercial establishment (including but not limited to a restaurant, bar, or nightclub) to operate or allow the operation of sound amplification equipment out of doors or directed out of doors or to allow live acoustic music out of doors or directed out of doors other than during the times listed below or so as to create sounds registering in excess of: (1) 85 db(A) Sunday through Thursday between 8:00 a.m. and 9:00 p.m.; (2) 60 db(A) Sunday through Thursday between 9:00 p.m. and 2:00 a.m. the following day; (3) 85 db(A) Friday or Saturday between 8:00 a.m. and 11:00 p.m.; or (4) 60 db(A) between 11:00 p.m. and 2:00 a.m. the following day. For purposes of this section, hotels, motels, other short-term accommodations shall be considered residentially occupied property. (b) The decibel limits prescribed in this section shall be measured at the property line of the commercial property at which the sound is being generated. (c) An establishment that has been determined to be non-cooperative pursuant to section 20- 661.2(e) shall be subject to enhanced civil penalties pursuant to section 20-663 and, after two violations of this section within one year after having been determined to be non- cooperative, shall not operate or allow the operation of sound amplification equipment out of doors or directed out of doors or allow live acoustic music out of doors or directed out of doors for a period of 18 months after the second violation. The 18 -month prohibition shall apply to the establishment and the property on which the establishment is located. ( Ord. No. 17-09-327. § 1, 9-13-2017) Sec. 20-661.2. - Chronic commercial noise. (a) The purpose of this section is to establish a collaborative process through which the city and a business that has been identified as a chronic source of objectionable noise (i.e., "chronic noise producer") will develop and implement a noise mitigation plan intended to bring the noise to acceptable levels. A chronic noise producer is an establishment that, because of the 7/21/2020 Milton, GA Code of Ordinances sound generated by or at the business, is an annoyance to adjacent or nearby residences, lodgings, schools, businesses, or other places where people may congregate with a reasonable expectation of undisturbed activity. (b) The chief of police (or designee) shall determine a commercial business as a "chronic noise producer" as described in subsection (a) above. In making such a designation, the chief of police shall take into consideration the following factors: (1) The number and frequency of valid noise complaints; (2) The proximity and physical relationship between the business and complaining locations; (3) The severity of sound events, both observed or measured; (4) The times and days of the week of sound events; (5) The business' history of cooperation and efforts to alleviate the problem; and (6) The history and context of the location, including whether the sound producing activity predates the occupation of the complaining locations and whether the sound producing location is located in what is generally recognized as an entertainment area. Upon designation, the chief of police shall inform the business in writing that it has been designated a chronic noise producer and refer the business to the City of Milton Mayor and City Council along with the information that established the basis for the designation. (c) Upon receiving a chronic noise producer referral, the City of Milton Mayor and City Council shall schedule a mandatory initial meeting based on its next regularly scheduled meeting with the business that it has been designated a chronic noise producer. At the initial meeting, the City of Milton Mayor and City Council and the business shall review the information that formed the basis for the designation and any evidence or information concerning the complained of noise provided by the business. Following the initial meeting, the City of Milton Mayor and City Council shall determine whether a mitigation plan is warranted in order to protect public health, safety and welfare. If the City of Milton Mayor and City Council determines that a mitigation plan is not warranted, it shall notify the business and the City of Milton Police Department of that determination and no further action shall be taken under this section. (d) If the City of Milton Mayor and City Council determines that a mitigation plan is warranted, the City of Milton Mayor and City Council and the business shall together develop and sign a noise mitigation plan. The plan may include, among other things: (1) Restrictions on days of week or hours of noise producing activity; (2) Placement, orientation, and operation of sound producing activity or equipment; (3) Structural changes including but not limited to sound attenuation and baffling; (4) Self-monitoring and reporting requirements; 7/21/2020 Milton, GA Code of ordinances (5) A schedule for implementation; and (6) A schedule for review for possible revision or termination of the pian. (e) In the event that a business designated as a chronic noise producer: (i) fails or refuses to participate in good faith in the development of a noise mitigation plan; (ii) refuses to agree to a noise mitigation plan; or (iii) fails to implement or comply with an agreed to noise mitigation plan, the City of Milton Mayor and City Council may designate the business as non- cooperative and shall notify the business and City of Milton Police Department of that determination. Should a business designated as non-cooperative cure the basis for the designation, the City of Milton Mayor and City Council shall remove the designation and notify the business and City of Milton Police Department of that determination. (f) In the event that a noise enforcement action is taken against a business that has been designated a chronic noise producer, evidence regarding the business' participation in the development and implementation of and compliance with the noise mitigation plan shall be relevant to any prosecution or administrative or judicial review or appeal of the enforcement action. Specifically, the business' participation and compliance shall be a mitigating factor and may, but is not required to be a justification for dismissing the enforcement action. A business that has been designated by the City of Milton Mayor and City Council as non- cooperative shall not be entitled to the benefits of this subsection unless the designation has been removed. (g) Appeals. A business that has been designated a chronic noise producer or non-cooperative may appeal such designation within ten days after receiving notice of such designation. Appeals shall be heard by the city manager or the city manager's designee who shall not be an employee of the City of Milton Police Department or member of the City of Milton Mayor and City Council. The appellant shall have the right to present evidence at said hearing,A ruling on appeal is subject to review in the superior court of Fulton County by proceedings in the nature of certiorari. Any petition for writ of certiorari for review shall be filed with the clerk of superior court within 30 days after notice of the decision has been sent to the appellant. ( Ord. No. 17-09-327. § 1, 9-13-2017) Sec. 20-662. -Animals. (a) It shall be unlawful for any person to own, keep or have in his possession, or harbor, any animal which howls, yelps, barks or produces other similar noises uninterruptedly or almost uninterruptedly for more than 15 minutes in duration. (b) No person shall act in such a manner as to create noise or sounds that would knowingly cause animals significant distress. Such noise or sounds shall include, but not be limited to, shooting of firearms; use of any combustible or explosive composition, substance or 7/21/2020 Milton, GA Code of Ordinances combination of substances; racing of engines and blasting music. ( Ord. No. 17-09-327. § 1, 9-13-2017) Sec. 20-.663. - Motor vehicles. It shall be unlawful to operate or allow the operation of any motor vehicle in the city: (1) Which has had its muffler -exhaust and/or other noise -control equipment removed, altered or maintained in such disrepair as to create unreasonably loud and disturbing noises. (2) By engaging in jackrabbit starts, spinning tires, racing engines, or other operations which create unreasonably loud and disturbing noises. (3) Off the boundaries of a public street for racing or other operations which create unreasonably loud and disturbing noises. ( Ord. No. 17-09-327 § 1, 9-13-2017) Sec. 20-664. - Reserved. Editors note Ord. No. 18-07-366. § 2, adopted July 9, 2018, repealed former § 20-664 which pertained to consumer fireworks, and derived from Ord. No. 17-09-327_,. § 1, adopted Sept. 13, 2017. Sec. 20-665. - Penalty. Any person found guilty of violating any provision of this article shall be punished in a manner consistent with the general penalty set forth in section 1-5. A violation of a continuing nature, each day during which it occurs, shall constitute an additional, separate and distinct offense. ( Ord. No. 17-09-327 § 1, 9-13-2017) Sec. 20-666. - Applicability. In the event there is a conflict between this ordinance [from which this article derives) and any other provision of the Milton Code, the more restrictive noise -based performance standard shall control; except, in the event there is a special use permit containing a noise -based performance standard, the standard in that special use permit shall control. (Ord. -No. 17-09-327 . § 1, 9-13-2017) Sec. 20-667. - Variances. (a) Variances to any numerical requirements of this article may be granted by the director of community development to any person, upon application, if findings are made by the 7/21/2020 Milton, GA Code of Ordinances director that the immediate compliance with such requirement cannot be achieved because of special circumstances rendering immediate compliance unreasonable in light of economic or physical factors, encroachment upon an existing noise source or because of the non- availability of feasible technology or control methods. (b) Any such variance or renewal thereof shall be granted by the director of community development only for the minimum time period found to be necessary under the facts and circumstances. The director of community development shall provide in writing the reason for the variance, the starting and ending time of the variance or other pertinent information as to enforce the approved variance. ( Ord. No. 17-09-327. § 1, 9-13-2017) Secs, 20-668-20-742. - Reserved. Blumberg tla 5208 I- Tr Mill Ire Iful IV, Iffly I ; 41 Dead Book 61025- P9 637 Filed and Recorded Jan --07-2020 092.Oam 2 0 20— Cii-i Ci2 953 Real Estate Transfer Tux $I r4(10-00 cArHELEINE ROBINS1314 Cleric of Superior Court Fulton Counts GeOP911a After recording return to: Helen A. Stahel, Esq. 1190 W. Druid Hills Drive, Suite T-90 Atlanta, Georgia 30329 PIN: 22 -3980-0954-020-6 LMTED WARRANTY DEED TFUS INDENTURE, made this I 8th day of December, 2019, between 640 Dorris Road, LLC, a Georgia limited liability company ("Grantor") and Christopher Cammack and Susan Cammack (collectively "Grantee) ("Grantor" and "Grantee" to include their respective heirs, successors, executors, administrators, legal representatives and assigns where the context requires or permits). WITNESSETH GRANTOR, for and in consideration of the sum of $10.00 Dollars and other valuable consideration, the mcipt and sufficiency of which are hereby acknowledged, has granted, bargained, sold, aliened, conveyed and confirmed, does hereby grant, bargain, sell, alien, convey and confirm unto Grantee all that tract or parcel of land as more particularly described in Exhibit A attached hereto and incorporated herein by reference (hereinafter referred to as the "Land"). TO HAVE AND TO HOLD the Land, together with all and singular the rights, members, and appurtenances thereof, to the same being, belonging or in anywise appertaining, to the only proper use, benefit and behoof of Grantee forever in FEE SIMPLE; subject only to the matters hereinafter referred to as "Permitted Title Exceptions" set out in Exhibit B attached hereto and incorporated herein by reference. AND GRANTOR WILL WARRANT and forever defend the right and title to the Land unto Grantee against the claims of any persons owning, holding or claiming by, through or under Grantor, except for claims arising under or by virtue of the,Permitted Title Exceptions. EXECUTED under seal as of the date above. Signed, scaled and delivered in GRANTOR: the presence of 640 Dorris Road, LLC A y: —(Seal) official Witness Jo A. Stephens, Member By: Seal) Notary Public 14 SA ),d R t Ste tepheans, �Mem'be� .77 G J,XOT4%. 100 00 Deed Book 61025 P9 638 PIN: 22 -3980-0954-020-6 Deed Book 61 0'25- P9 6239 cail" HELENE ROBINSON Clerk of Superior Court Fulton Count!jq 6seor9ia 1. All taxes for the year 2020 and any additional city or county taxes for the calendar year 2020 as may be further assessed by Fulton County subsequent to the initial billing, and subsequent years, not yet due and payable. 2. Fight -of -Way Easement from Merle A, Bryan to Georgia Power Company, dated July 25, 1969, filed August 1, 1969 at Deed Book 5101, Page 208, Fulton County; Georgia records. 3. All matters as shown on that certain plat recorded at Plat Book 367, Page 114, aforesaid records, and revealing the following: a. 60' Front Building Line; 25' Side Building Line; and 60' Side Building Line on the East side of the lot; b. 50' Rear Building Line and Storm Water Detention Area at rear portion of lot; and c. 20' Drainage Easement at the NW rear of the lot. 0 EXHIBIT C�lr 1� i�- No Text M ,� ! "' 1 , �f MOSCOW_ QM . t"j.. No Text tVOW fi< s i Np j t, f 'ter LJ t t r p } ,, t r S 1 y P i E �F4i� �t th A 4 G • k .Jw ' t ! �4 a 'r F 5, 1 r j oilr �k Nose � - : i r y. x •- -: 'tom i i N J f ' x _ r t� yi r , Midi r 'My�. A, out no— _ t _ 4 sr �. t -., t x t� Sg +t-j�•+.�� 1roe,`ei �z 'kit I � � r r r �� E � � r°i r��•� � � -�< < 3 t S �#ryk4 t'wf' rk fit. i. M W&A not , No Text JARRARD DAVIS.LLP KZH E. JARRARD* Limited Liability Partnership ANGELA E. DA%w 222 W -,bb street PAUL B. FIUCKEY Cummin& Georgia 30040 SARAN VAEVOLKEMURGHt CHRISTOPHER L HAMILTON G. AARON MEYER MEGAN N. MARTIN TELEPHONM 678.455.7150 KENNETH P. ROBIN Rcsim= 678.455.7149 MoLLY PJ. SAM P, VAN VOEMssw.Eim MURGH PATpjcx D. Uuosrr"ERPPFi�cKEyCa�rQR�Ro-nAV!JEFFREY M. STRICKLAND OFCOMEL: VAWAdmimd an 11findu&Wfamid PATRICK FOYLE DWSONG DEWRAm L. DANcE®Aisc'A1WAdm UW* FI.,W. MELISSA A. KLATzKowl April 20, 2020 By Emafl: epeommack@gmaii.com And Regular Mail Ruff House Boarding & Doggie Day care Ruff House Kennel and Daycare LLC 640 Dorris Road Milton, Georgia 30004 RE. Property 640 Dorris Road, Milton APN 1 22 398009540206 Case No.: CE -20-0021 Officer Chris Williams Dear Sir/Madam: Please be advised that this office is the City Attorney for the City of Milton. In that capacity, I write to address the operationg at the Ruff House Boarding & Doggie Dayeare facility, located at 640 Dorris Road, Milton, Georgia (°'Froperty-). It is my understanding that the current operations on the Property involve use of open pens or runs closer than 200 feet from the property line in violation of Code Section 64415(a)(9). I also understand that you have recently installed sheeting and/or a tarp over pre-existing chain link fence on the Property. Please be advised the addition of the opaquematierial to the -pre-existing chain link fence violates Code Sections 64 -212(5)(a)(4),64 -417(a)(4), and 64-1142(d)(4). The City remains insistent in its demand that the Property be brought into compliance inunediately. Please be advised that the City will continue to monitor the operations of the Property to confirm such compliance during the next 30 days. I appreciate your attention to this matter and your compliance with the City's zoning ordinance. EXHIBIT JARRARD & DAVIS, LLP Page 2 of2 Sincerely, Paul B. Frickey 7.a Email. Parag Agrawal, Community Development Director (Rd-razASrmEq1j&t jQf-mL11gngq.US) Chris Williams, Code Enforcement Supervisorngilg�ml Y -01—miftona-u-s) Robyn MacDonald, Zoning Manager MmMgg4WRY@cL1V0fML1Lon us) .a By Email: cpcamrnack@gmail.com And Regular Mail 110 F-7FEM: 640 Dorris Road Milton, Georgia 30004 RE: 640 Dorris Road, Milton APN 22 398009540206 Case No. CE -20-0021 Officer Chris Williams Please be advised That this office is the City Attoiney for the City of Milton. In that capacity I write to address the operations at the Ruff House Boarding & Doggie Daycare, located -at 640 Dorris Road, Milton, Georgia ("Property"). On April 1, 2020, after a number of informal discussions, the City issued you a Final Courtesy Notice ("Courtesy Notice") advising you of an on-going violation of the City's zoning ordinance, demanding compliance no later than April 10, 2020. Specifically, the notice advised that the operations on the Property involved use of open pens or runs closer than 200 feet from the property line in violation of Code Section 64- 415(4){9). Although I am aware that you addressed the Courtesy Notice in correspondence with the City on April 6, 2020 - . nothing contained therein contradicted the City's position that the operations -identified in the Courtesy Notice are in violation of the City's zoning ordinance and, therefore, must cease. Upon follow-up investigation, the City has determined that the operations previously identified as violating Code Section 64-415(a)(9) continue on the Property. The City remains insistent in its demand that the Property be brought into compliance immediately. This letter is intended to provide you with Notice That the City will issue citations without further notice if the operations are not brought into compliance by April 27, 2020. JARRARD 0 DAVIS,LLP I Limited.Liability Partnership KEN E. JARRARD4 222 Webb Street NUL U. FRICKEY ANGELA E. DAVIS Cumming, Georgia 30040 SARAH VANVOLKEMURGHt CITRISTOPIM J. HAMILTON G. AARON MEGAN N. MARTW TELEPHONE: 678.4553150 Kme=H P. ROB IN FACsimnx: 67&455.7149 MoLLYN. EsswEN SAM P. VANVOLUMURGH PATRICK D. JAUGSTETTER PPRICKEX@,LARRARD-DAVIS.COM JEFFREY M. STRICKLAND O.FCOUNSEL I AlsoAdadficd in 111inch &Cdfonto PATRICK DoyLs DODSON* DBBoRAnL. DANCE.'Also Admitted in Tennessee fAlsaAdrn R I itted in oMu MELISSA A. KIATzKowl By Email: cpcamrnack@gmail.com And Regular Mail 110 F-7FEM: 640 Dorris Road Milton, Georgia 30004 RE: 640 Dorris Road, Milton APN 22 398009540206 Case No. CE -20-0021 Officer Chris Williams Please be advised That this office is the City Attoiney for the City of Milton. In that capacity I write to address the operations at the Ruff House Boarding & Doggie Daycare, located -at 640 Dorris Road, Milton, Georgia ("Property"). On April 1, 2020, after a number of informal discussions, the City issued you a Final Courtesy Notice ("Courtesy Notice") advising you of an on-going violation of the City's zoning ordinance, demanding compliance no later than April 10, 2020. Specifically, the notice advised that the operations on the Property involved use of open pens or runs closer than 200 feet from the property line in violation of Code Section 64- 415(4){9). Although I am aware that you addressed the Courtesy Notice in correspondence with the City on April 6, 2020 - . nothing contained therein contradicted the City's position that the operations -identified in the Courtesy Notice are in violation of the City's zoning ordinance and, therefore, must cease. Upon follow-up investigation, the City has determined that the operations previously identified as violating Code Section 64-415(a)(9) continue on the Property. The City remains insistent in its demand that the Property be brought into compliance immediately. This letter is intended to provide you with Notice That the City will issue citations without further notice if the operations are not brought into compliance by April 27, 2020. JARRARD & DAVIS, LLP Page 2 of 2 Tbank you for your prompt attention to this matter. Sincerely, R F.111 I t i "1, 11 41-11 1 19 -i 11 Paul B. Frickey cc:E1:4-Enwil.- Parag Agrawal, Community Development Director (Pargg.AgrawalOcityofm L11onga. us) Chris Williams, Code Enforcement 9u ervisor�riq. ffWiamq(@ ,city of miltonj�qxs) FF ME - - — — - - �4 From: cody.hendrix@cityofmiltonga.us Sent: Monday, May 4, 2020 11:20 AM To: pfrickey@jarrard-davis.com Subject: RE: Ruff House Update Thanks Paul. i will let the neighbors know the status. As for the citation, I am not sure of the status from Ruff House on the compliance. Cody Hendrix Planning Technician 2006 Heritage Walk, Milton, GA 30004 678-242-2513 (0) wwvv.cityofmil9onga.us From:. Paul Frickey <pfrickey@jarrard-davis.com> Sera: Monday, May 4, 2020 9:54 AM To: Cody Hendrix<cody.hendrix@cityofmiltonga.us> Subject: RE: Ruff House Update Cody, I don't know that there is a reason for the attorneys to talk to them. The thinking here is to have you respond to the neighbors advising that the City Attorney has been asked to investigate several issues related to the operations and is currently in the middle of that investigation. As soon as there is something on that to pass on, you can let them know. If there are other specifics that you are able to address (e.g., I have not looked into anything related to the security light issue) you can update them. That being said, I am curious if there are any updates from Ruff House about their response to the City's position. Are they just daring us to cite them? Paul From: Cody Hendrix <cods.hendrix cDcityofmiltoriga.us> Sent: Thursday, April 30, 2020 9:01 AM To: Paul Frickey <> Subject: FW: Ruff House Update Hey Paul, I received this email yesterday and Parag wanted me to get you involved in this. Would you be able to talk writh them? Thanks Cody Hendrix Planning Technician 2006 Heritage Walk, Milton, GA 30004 678-242-2513 (0) www.cifyofmiltoncia.us From: Marisa Breen Sent: Wednesday, April 29, 202012:28 PM To: Cody Hendrix <cody.hendrix(a@cityofmiltonea us> Subject: Re: Ruff House Update Good Afternoon Cody, The neighbors requested I check back in with the City to see if there was any response from Ruff House_ It still appears to be business as usual and not much has changed. The security light is still on 24/7 on the back of the building and shining through our front windows and the dogs are still running in the runs beginning early in the mornings. They attempted to conceal one of the runs by putting up a tarp on the chain link gate but it keeps falling and we can all stili hear the dogs and the staff. Ms. Dunn is also requesting another face to face with the City. I look forward to providing them with an update of the progress and available dates to schedule a follow-up meeting between the neighbors and your team. Thank you, Chris Breen On Fri, Apr 3, 2020 at 4:45 PM Marisa Breen wrote: Thanks for the update! Stay healthy) On Fri, Apr 3, 2020, 4:32 PM Cody Hendrix <Cody.hendrix@cityofmiIto nRa_us> wrote: Good afternoon Chris, Wanted to give you and the neighbors an update, the City sent out a final courtesy notice this week and Ruff House has to be in compliance by April 10th. Hope everyone is safe and healthy. We will let you know once we hear from them. Thanks Cody Hendrix 2 Hi Paul, See my answers below: —Original Message— From: Paul Frickey <pfdckey@jarrard-davis.com> Sent: Monday, April 20, 2020 9:09 AM To: Robyn Macdonald <Robyn.Macdona)d@cityofmiltonga.us> Subject: RE; Took this pic of Ruff House on Saturday April 18 There are two fenced areas, correct? Yes. The picture is of the "north" area, and then there is also a "west" area that is smaller and completely opaque would fencing correct? The west fencing is actually equestrian style. I have included a pic of it. They already built it before applying for a fence permit. So we do not have evidence of an actual violation on Sunday (though very suggestive of an intent to "hide" what f hey are doing)? That is correct. Ftook the picture on Saturday. Chris went by another time and the plastic was over the fence as well (which is not permitted). Did you hear anything (not that you could hearwhether they were on a leash or not, butiust curious) ?. No, I was just driving by and didn't stop (on Birmingham Hwy). I suspect there were no dogs out because there were no cars in the parking lot with any employees present. Is there still an open fence permit application? Yes. There is two. One for expanding the existing fence on the north/east area next to Birmingham Hwy. One for the west fence which was built prior to submitting the fence permit. I have the 3/24/20 letter from the attorney but not the application. Is their currently an illegal fence that was built without a permit, or is this permit for a new fence that they don't necessarily need to continue their current operations? See above. Paul Original Message— From: Robyn Macdonald <Robyn.Mocdonald@cityofmiltongo.us> Sent: Monday, April 20, 2020 8:16 AM To: Parag Agrawal <parag.agrowal@cityofmiltongo.us>; Paul Frickey <pfrickey@jarrard-davis.com>; Chios Williams <chris.williams@cityofmiltonga.us> Subject: Took this pic of Ruff House on Saturday April 18 0 You can see they put a tarp over the area you can see from the road. There were no animals on the western pen. No Text No Text No Text Mrs I 00 10 (D (M cm 0 V) C 0 iv E 4m- :3 Z cn 41 V) 0 —6 LA (D a: m 4-toC 0 -3 ca c u 0 tO E 0 U- 0 41 V, cu m ra z U pz IM 00 en 0 0 E 0 u m LU E cinr U,cn ch E o z 0 , — '0 '.r 1- o W a Z Ln c E ro 0- ` 0 Ln w 0 .— ru+1 =3 E V) Ln W tn a- Ln < (D 0 U- > r - vi n 7 Ln (U S u 0 0 (A (A =3 ca LA u &L U C: V+'l CL Z 0 0 LL - 4 CF to E m c = Ch cL .5 (D E tA .— ca Ln 0 0 V— Lu E z 0 r (V 03 4- _tA cr- D E ig EXHIBIT 'A < 0 / 0 Q \ £ 2 t � m @ cm � / k ¥ } 0 0CL � a ■ � % / & 6 % q ? c § a. / � C) / 7 \ ƒk� 2 9/ <%e $ / / i( _ %C( 4 sV) . � m < 3 ƒ /grn \ � � A 0 C / u / m CL m _Q O LU 0 0 N c+t z O F x W-4 LU w Q cry ui v d 0 z UA w 00LU v m le z V w Q ui z d pap z UA 00LU m L L u m CLU E Z_ a ULA, u Z r i4 E Q le Q w ua U cl: CLW ccz gn am L. ri U. a m v Z o c U a) LA -O A s v Ln az s a� Q) C D w O C 3 v ll O i N E to Z 'r m Ln E CL 00 ai o 0 ti 00 1.0 L, 0 c O s CL 0 m cn r. m m O m M Q UD L7 c r- > _O MOOi ) U M- Q M -p 6" N ? 0 N CUL. ss Ot�J1 U- CO Q ui rcr` ?y Q ^n tt1 O � C7 V) cn O p O c u N a- c c Q o cu m _Ln O (6 w u` aD LA M 0 w w s' O (U V O a) 2 r w E A c m CL E 0 U jo L J E J V w Q ui z d pap UA 00LU m L L u La- �- m CLU E Z_ a � u Z r E Q �^, o z N N w CL Q C E C V 0 tnC m O m to w m m CL +ecu .0 LnC n`_ Q w ua U cl: CLW ccz gn am L. ri U. a m v Z o c U a) LA -O A s v Ln az s a� Q) C D w O C 3 v ll O i N E to Z 'r m Ln E CL 00 ai o 0 ti 00 1.0 L, 0 c O s CL 0 m cn r. m m O m M Q UD L7 c r- > _O MOOi ) U M- Q M -p 6" N ? 0 N CUL. ss Ot�J1 U- CO Q ui rcr` ?y Q ^n tt1 O � C7 V) cn O p O c u N a- c c Q o cu m _Ln O (6 w u` aD LA M 0 w w s' O (U V O a) 2 r w E A c m CL E 0 U jo L J E J Page 1 of 10 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 PETITION NUMBER: V20-21 PROPERTY INFORMATION 12725 New Providence Road DISTRICT, LAND LOT 2 / 1139 OVERLAY DISTRICT RURAL MILTON EXISTING ZONING AG-1 ACRES 2.27 EXISTING USE SINGLE FAMILY RESIDENTIAL FUTURE LAND USE DESIGNATION AGRICULTURAL, EQUESTRIAN, ESTATE RESIDENTIAL REQUESTED VARIANCES: • To change the fifty-foot rear setback to twenty-five feet. (Sec. 64-416, d) PETITIONER(S) Stella Dowling & James Camp, Jr. ADDRESS 12725 New Providence Road Milton, GA 30004 REPRESENTATIVE(S) Scott Reece, Brumbelow-Reese & Associates ADDRESS 13685 Highway 9 Milton, GA 30004 Page 2 of 10 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Page 3 of 10 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 COMMUNITY DEVELOPMENT STAFF ANALYSIS STAFF CONTACT: CODY HENDRIX 678.242.2513 Background: The site is a 2.27-acre lot located on the east side of New Providence Road within the Meadowood Minor Plat which was approved in 2014. The property is zoned AG-1 and is located in the Rural Milton Overlay District. At the time of the approval of the Minor Plat in 2014, the eastern property line was identified as a “side” building setback at 25 feet instead of a “rear” building setback which requires 50 feet. The correct rear setback is based on the fact that it is the most parallel to New Providence Road and that the north and south property lines are side building setbacks with a minimum of 25 feet. Staff notes that even though there is a shared driveway along the north property line, this is not considered a “front” setback. In November 2017 a building permit for a new single-family residence was issued and a Certificate of Occupancy was issued in May 2019 with a minimum 25-foot minimum side setback. Currently, the applicant is requesting a reduction of the rear building setback along the eastern property line from 50 feet to 25 feet. Staff notes that the actual encroachment for the house and retaining wall is 30 feet. Based upon the determination of the City Attorney, the existing house is a legal non-conforming, located within the 50-foot rear building setback. The applicant also shows on the site plan dated August 25, 2020 (Exhibit A), a proposed pickle ball court which is located within the 50-foot rear setback. All private recreation courts are required to comply with minimum building setbacks and therefore, the need for this variance request. There is also a proposed barn (not for animals) that is compliant with the required 50-foot rear setback and located to the side or rear of the primary residence. DESIGN REVIEW BOARD (DRB) COURTESY REVIEW: On October 6, 2020, the DRB met and had the following comment: • Permit the 25-foot setback. Page 4 of 10 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Standards for Consideration: The approval of a variance is based on the following consideration(s): • Relief, if granted would not offend the spirit or intent of the Ordinance. • There are such extraordinary and exceptional situations or conditions pertaining to the particular piece of property that the literal or strict application of the Ordinance would create an unnecessary hardship due to size, shape or topography or other extraordinary and exceptional situations or conditions not caused by the variance applicant. • Relief, if granted would not cause a substantial detriment to the public good and surrounding properties. • That the public safety, health and welfare are secured, and that substantial justice is done. The applicant’s response: • Please see the letter of appeal. The Staff’s response: • Part one: The variance request can be granted for the existing house permitted in 2017 since the final plat was approved with error of the minimum rear setback and the structure was built with an approved permit for the house and retaining wall and will not offend the spirit or intent of the Ordinance. In regard to the proposed pickle ball court, the location of the court offends the spirit and intent of the Ordinance as it encroaches into the 50-foot rear setback as well as it does not conform with the requirements of private recreational courts (Sec. 64-1602 (b)(1). • Part two: The variance request can be granted for the existing house and retaining wall permitted in 2017 because of the extraordinary and exceptional situations or conditions not caused by the variance applicant. In regard to the proposed pickle ball court, the applicant has not demonstrated extraordinary and exceptional situations or conditions pertaining to the particular piece of property that the literal or strict application of the Ordinance would create an unnecessary hardship due to size, shape or topography. • Part three: The variance request for the existing house and retaining wall will not cause a substantial detriment to the public good and surrounding properties. In regard to the proposed pickle ball court located 25.5 feet from the common property line, it will cause a substantial detriment to the public good and surrounding property. The single-family lot to the east has a 25-foot front building setback line and if the court is Page 5 of 10 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 developed, the new single-family residence would only be approximately 50 feet from the pickle ball court. • Part four: The location of the existing house and retaining wall does not hinder the public safety, health and welfare, and that substantial justice is done. In regard to the proposed pickle ball court, it does hinder the safety, health and welfare of the adjacent lot based on the location to the property line. Staff recommendation: • Staff recommends approval of the reduction of the 50-foot rear setback to 30 feet for the existing single-family residence and retaining wall as depicted on Exhibit A. • Staff recommends denial of the reduction of the 50-foot rear setback to 25.5 feet for the proposed pickle ball court. If the Board of Zoning Appeals approves the request for the reduction of the rear setback for the pickle ball court, Staff recommends the following conditions: 1) Provide a 20-foot planted buffer to provide a visual buffer along the eastern property line for the width of the court as approved by the City Arborist. 2) The lighting of the court shall be prohibited. Page 6 of 10 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Page 7 of 10 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Exhibit A Page 8 of 10 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Page 9 of 10 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Page 10 of 10 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Page 1 of 9 V20-22 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 PETITION NUMBER: V20-22 PROPERTY INFORMATION 14875 Taylor Road DISTRICT, LAND LOT 2 / 592,593 OVERLAY DISTRICT RURAL MILTON EXISTING ZONING AG-1 ACRES 19.99 EXISTING USE SINGLE FAMILY RESIDENTIAL AND TWO STRUCTURES FUTURE LAND USE DESIGNATION AGRICULTURAL, EQUESTRIAN, ESTATE RESIDENTIAL REQUESTED VARIANCES: • To reduce the 100-foot building setback for housing animals to eighteen feet for existing shed / stable. (Sec. 64-415 (2)) • To reduce the 100-foot building setback for housing animals to twenty-six feet for existing barn / stable. (Sec. 64-415 (2)) PETITIONER(S) Donald C. Bibler and Susan K. Bibler ADDRESS 14875 Taylor Road, Milton, GA 30004 REPRESENTATIVE(S) Scott Reece, Brumbelow-Reese & Associates ADDRESS 13685 Highway 9 Milton, GA 30004 Page 2 of 9 V20-22 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Page 3 of 9 V20-22 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 COMMUNITY DEVELOPMENT STAFF ANALYSIS STAFF CONTACT: CODY HENDRIX 678.242.2513 Background: The site is a 19.99 acres lot located on the east side of Taylor Road. This property is zoned AG-1 and is located in the Rural Milton Overlay District. A house was built prior to the City’s incorporation and is compliant with the required building setbacks. The applicant is proposing an addition to the house. It is the policy of staff to review the existing zoning non- compliance when a building permit is requested. The property owner is required to bring those issues into compliance. There are two existing structures adjacent to the south property line that are being used to house animals. Therefore, it is the purpose of this request to reduce the setback from 100-foot to eighteen feet and twenty-six feet. As per Sec. 64-415 (9), a100-foot setback from the property line is required for structures housing animals. The two structures exist now at eighteen and twenty-six feet from property lines. The applicant requests a variance for these two existing structures housing animals as shown on Exhibit A. DESIGN REVIEW BOARD (DRB) COURTESY REVIEW: On October 6, 2020, the DRB met and had the following comments: • Recommends approving the requested variances. Page 4 of 9 V20-22 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Standards for Consideration: The approval of a variance is based on the following consideration(s): • Relief, if granted would not offend the spirit or intent of the Ordinance. • There are such extraordinary and exceptional situations or conditions pertaining to the particular piece of property that the literal or strict application of the Ordinance would create an unnecessary hardship due to size, shape or topography or other extraordinary and exceptional situations or conditions not caused by the variance applicant. • Relief, if granted would not cause a substantial detriment to the public good and surrounding properties. • That the public safety, health and welfare are secured, and that substantial justice is done. The applicant response: • Please see the letter of appeal. The Staff response: • Part one: The variance requests to allow the two buildings that house animals to remain would not offend the spirit or intent of the Ordinance based on the fact that the structures were built and modified prior to the adjacent property owners purchasing their lots and there have not been any complaints since that time. Secondly, if this is not approved, the applicant could not continue with the proposed addition to their home. Lastly, the City of Milton encourages the preservation of equestrian and agricultural uses as well as preserving large lots within the City. Therefore, it is Staff’s opinion that it would not offend the spirit or intent of the Ordinance. • Part two: If the variance requests are not granted, it would cause an extraordinary and exceptional situation for the property owners by not permitting the expansion of the existing house which is in compliance with all required building setbacks. • Part three: The approval of these requests would not cause a substantial detriment to the public good and surrounding properties based on the fact that they existed prior to the new property owners to the south and there have been no issues brought to the City with the existing structures. • Part four: By approving the variance requests, the public safety, health and welfare are secured, and that substantial justice is done. Page 5 of 9 V20-22 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Staff recommendation: • Staff recommends approval of the two variances as depicted on the site plan (Exhibit A): 1) To reduce the 100-foot setback from 100 feet to 18 feet for the existing shed / stable and; 2) To reduce the 100-foot setback from 100 feet to 26 feet for the existing barn. Page 6 of 9 V20-22 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Page 7 of 9 V20-22 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Exhibit A Page 8 of 9 V20-22 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Page 9 of 9 V20-22 Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Page 1 of 8 V20-23 - Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 PETITION NUMBER: V20-23 PROPERTY INFORMATION 555 Lost River Bend DISTRICT, LAND LOT 2 / 519 OVERLAY DISTRICT RURAL MILTON EXISTING ZONING AG-1 ACRES 1.5437 EXISTING USE UNDEVELOPED FUTURE LAND USE DESIGNATION AGRICULTURAL, EQUESTRIAN, ESTATE RESIDENTIAL REQUESTED VARIANCES: • To reduce the front yard setback from sixty feet to twenty-five feet. (Sec. 64-416 (b)) PETITIONER/OWNER Janell Enis Stephens ADDRESS 715 Wavery Street Macon, GA 31210 REPRESENTATIVE Marty Anker / Anker Custom Homes ADDRESS 4045 Saint Michelle Lane Alpharetta, GA 30004 Page 2 of 8 V20-23 - Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Page 3 of 8 V20-23 - Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 COMMUNITY DEVELOPMENT STAFF ANALYSIS STAFF CONTACT: CODY HENDRIX 678.242.2513 Background: The site is a 1.5437-acre flag lot located on the west side of Lost River Bend. This property is zoned AG-1 and is located in the Rural Milton Overlay District. The final plat for the property was approved in 2015. As per Sec. 64-416 (b), the sixty-foot front setback is approved for this flag lot (Exhibit A). Based on the Zoning Ordinance’s Sec. 64-77 (3) requirement, when determining the front building setback, measurement for front yard shall begin at the point of intersection of the stem and the flag portion of a flag lot running along the property line that is the most perpendicular to the stem. The applicant is proposing a site design shown in Exhibit B. In order to follow the topography of the site and provide the best orientation to Lost River Bend for a new house the applicant is requesting to reduce the front setback to twenty-five feet from sixty feet. DESIGN REVIEW BOARD (DRB) COURTESY REVIEW: On October 6, 2020, the DRB met and had the following comment: • Approve the variance. Page 4 of 8 V20-23 - Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Standards for Consideration: The approval of a variance is based on the following consideration(s): • Relief, if granted would not offend the spirit or intent of the Ordinance. • There are such extraordinary and exceptional situations or conditions pertaining to the particular piece of property that the literal or strict application of the Ordinance would create an unnecessary hardship due to size, shape or topography or other extraordinary and exceptional situations or conditions not caused by the variance applicant. • Relief, if granted would not cause a substantial detriment to the public good and surrounding properties. • That the public safety, health and welfare are secured, and that substantial justice is done. The applicant response: • Please see the letter of appeal. The staff response: • Part one: Because of the topography the previously approved setbacks pose a hardship to the owner. The change would provide a relief to develop the property best suitable to the site conditions and would not offend the spirit or intent of the Ordinance. • Part two: The siting of the house is based on building it along the natural topography of the site as well as providing the optimal orientation to Lost River Bend. It is Staff’s opinion that these extraordinary and exceptional situations or conditions pertaining to the property that the literal or strict application of the Ordinance would create an unnecessary hardship based on the shape and topography. With the proposed reduced setback there still will be more than seventy-five feet of buffer between the subject house and the house on lot 19. • Part three: The variance request should be granted since the change is not detrimental to public good and surrounding properties. • Part four: The proposed reduction in the setback secures public safety, health and welfare. Page 5 of 8 V20-23 - Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Staff recommendation: • Staff recommends approval of the variance request as shown on the site plan (Exhibit B) to reduce the front setback from 60 feet to 25 feet. Page 6 of 8 V20-23 - Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Page 7 of 8 V20-23 - Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Exhibit A Page 8 of 8 V20-23 - Prepared for the Board of Zoning Appeals Meeting on October 20, 2020 Exhibit B