Disagree with variance approval

[Frederick93]

What is the name of your state (only U.S. law)? New York
My neighbor has built a garage which is approximately 3 1/2 feet from my line and 2 stories high. The planning board approved 1 story 7 feet from my line. It totally removes any privacy I have in my back yard. They have been anything but a good neighbor. I even had a situation where they did over $6,000 worth of damage to my yard, brought them to small claims court and was awarded the maximum $3,000. They are trying for a variance after the fact and I need to present my case as to why I do not want this approved. I have been told this could cause problems when I go sell.. what problems could arise? Will this affect my property value?

 

[drewguy]

1) The "problems" it would create are that any buyer will be turned off in the same way you are by the location/size of the garage. There should not be any legal problems as it doesn't encroach on your property.

2) Find out from the planning board what the variance process is and how you can provide input. And then object to granting the variance as strenuously as possible. It's hard to know what standards the decisionmaker applies without knowing your town's approach, but it seems like if the neighbors knowingly violated the terms of the building permit they're likely to be on relatively weak ground. Usually variances are granted (a) in advance and (b) afterwards only if there was a screwup by the town (e.g., they said 2 stories was okay, but then realized after it was built that the zoning laws don't allow two stories). But that's a very general rule, not necessarily adhered to by your town.

 

[FlyingRon]

You should keep all your discussion in the same thread (saves a lot of redundancy).

I don't know which county you are in, but even if they get a variance (which you certainly can argue against in the process), there's still typically a board of zoning appeals you can pursue further.

Has a variance been issued?

I don't understand this too much. Court cases have taken a lot of the authority away from the zoning boards to "bend" the rules in the favor of property owners, and at it's face this doesn't qualify for a variance. Here is a typical requirement list for a variance (I pulled it from Nassau County):

(1) that the property is incapable of earning a reasonable return on initial investment if used
for any of the allowed uses in the district (actual "dollars and cents" proof must be
submitted);
(2) that the property is being affected by unique, or at least highly uncommon circumstances;
(3) that the variance, if granted, will not alter the essential character of the neighborhood;
and
(4) that the hardship is not self-created.

I doubt that 1,2, or 4 is met and you can certainly argue your side of #3.

If you're really serious, you may wish to retain the assistance of a land use lawyer.

 

[Frederick93]

no variance yet

There are many inconsistencies with this, I spoke with our Deputy Commissioner of Zoning today, the permit was issues 11/07 and never updated, he stated his clerk must not have mailed out the renewal notice, he will do it today... he sent a violation notice on Sept 22 and they have ignored it, along with dates they were ordered to go to court, the next court date is Feb 28, to which he also stated they will probably be appealing his decision and with that he also stated the planning board will probably grant the variance. Everything I have learned about the variance process is exactly as in your response but it seems strange how lienient the town is, it seems a little fishy to me.

 

[Mass_Shyster]

There are many inconsistencies with this, I spoke with our Deputy Commissioner of Zoning today, the permit was issues 11/07 and never updated, he stated his clerk must not have mailed out the renewal notice, he will do it today... he sent a violation notice on Sept 22 and they have ignored it, along with dates they were ordered to go to court, the next court date is Feb 28, to which he also stated they will probably be appealing his decision and with that he also stated the planning board will probably grant the variance. Everything I have learned about the variance process is exactly as in your response but it seems strange how lienient the town is, it seems a little fishy to me.

You may want to consider a land use lawyer now. If the variance is granted, it will be difficult, if not impossible, to reverse it.