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Building approved... not approved

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bigpatsfan

Junior Member
My State is NH

My wife and I have a small seasonal home and a couple of years ago, one of my abutters took down his existing home and put up a larger home. The abutter did have a building permit.

When the existing home was torn down and the foundation to the new home was poured, we met with the Building Inspector and Town Manager. At that time, we stated that we believe that the new home violated a number of building codes. Most notable, change of use as the home was going from a single family home to a duplex and it was a non-conforming structure as it did not meet any of the Town’s existing setback requirements. As a result, we felt that the work should be halted and the plans should go through both the Zoning Board and the Planning Board.

The Town stated we were incorrect.

Over the past two years, the home owner has worked on this new building. In the meantime, the Building Inspector was terminated and is currently under investigation for pocketing building fees. The new building inspector has decided that the now complete structure is indeed non-conforming and that the original building permit should not have been issued.

So before an occupancy permit will be issued, the Planning Board is holding a hearing regarding both the change of use and the setback requirements.

I am guessing that this hearing is just a “cover-my-ass” hearing. I cannot see the Town admitting they made a mistake and having the new building taken down (at Town cost). Meaning no mater what the abutters feel about having a duplex next to them, this is a done deal. Since this building is larger than what was there one of my abutters view of the Lake is now gone. They are looking at the back of the new building.

Note that this building is on the waterfront and apparently the Town has a clear ordinance against having a duplex on the waterfront. So it should never have been built.

Any thoughts on the above.What is the name of your state (only U.S. law)?
 


You could probably sue them, as their violation of zoning and set back regulations is a private nuisance to you and your neighbor's property. This is due to the fact that you no longer have your lake view. If successful, you could get compensatory damages for the lost value of the home. I'm guessing if your lake view home no longer has a lake view this could be substantial.

I think it is well worth your time to see a Land Use Planning or Real Estate attorney regarding this issue. Specifically, if the city somehow changes the zoning to accommodate your neighbor's situation, there could also be a claim against the city for spot-zoning.
 

bigpatsfan

Junior Member
Thanks for the responses.

Please note that our view is minimally affected… the home in front of us lost their view totally. We are all on a hill so we are high enough to see over the new home.

Our main complaint was really the change in use. We were concerned that if this homeowner could build a duplex, then so could his neighbors. The last thing we wanted was more development.

Since the building was wider it was also taller. This added height does block some of our view. So what now stops the home in front of us for building upward also.

To me, it is tragic that the Town when presented with the facts still erroneously sided with the homeowner.

The homeowner was certainly aware that what they were doing was wrong however, the Town gave them a building permit so I really can’t see how they would be held accountable.

It is clear that this building should not be there… to me the real answer is the building should be torn down and a conforming structure should be built instead. None of the abutters wanted this building.

The Town should setup and do what is right… but I really do not see that happening.

Sure after spending thousands of dollars in Court costs we could probably get some money from the Town for the diminished value of our home??? But does that solve the problem… no,
 

Zigner

Senior Member, Non-Attorney
Just because one has a building permit does not mean their use is conforming with the zoning law. Sounds like the person who issued the building permit made a mistake.
HOWEVER, that also means that the HO had permission to build...
All I'm saying is that I don't see a case against the HO on this one.
 
I looked up some cases while waiting for your response. It appears the city is the better defendant, and one should argue a public nuisance since its violation of a zoning law.

Upon further review of a torts hornbook, the elements exist to bring an action against the homeowner for a private nuisance. I think the success of such a cause of action would depend on the lake and the importance of the view to the value of the property. However, the cost in pursuing such an action and the low probability of victory (given a lack of supporting case law) is probably prohibitive.
 

justalayman

Senior Member
since there is a hearing on this, I would suggest it isn't too late to act.

What I would do is:

argue to have the building not given a C of O due to the duplex especially since it was not allowed per the ordinances. If there were not the proper hearings and such required to allow a variance, what the gov did was simply illegal. Now, if the variance is denied, the builder very likely has a suit against the town but that is the towns problem.

as to other issues; setbacks and such; I would consider allowing such without argument if it is not overly abusive of the standard set offs. If it is something that would likely have been granted anyway, I would let it go with minimal resistance. You always show resistance to everything. That way it looks like they won somewhere and you can make them feel they owe it to you that you win on something as well. You know, the old give and take.

Now, depending on how this plays into the situation:

In the meantime, the Building Inspector was terminated and is currently under investigation for pocketing building fees.
maybe a bit more digging would allow you to discover an illegal deal between the builder and the inspector. If you can find that, I would simply shoot to deny all variances. It would remove the possibility of a (winning) suit by the builder against the town.

as to the guy having his view blocked? Unless this new building is too tall or he has a view easement, he should have bought on the lake if he wanted to be sure to have a lake view.
 

FarmerJ

Senior Member
One last approach to bring up in a public meeting if it appears that the structure will be allowed to stay as it is would be to insist the property be flagged as non conforming and ( conditional use ) if it is ever 50% damaged by weather- acts of nature or fire that the structure cannot be rebuilt or repaired to its previous use and post repair would have to be re built to conform to zoning rules. This way also is a way for the affected parties to save face. I have to admit it would be interesting to learn the outcome of this , would you care to post back with the outcome ?
 

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