The days when a homeowner could add to his home – or build a new one – without asking anyone’s permission are long over. As towns became more crowded and building techniques more complicated, governments have developed a set of rules of the road for siting and constructing buildings. But how are these laws applied? What role do neighbors play? Can a homeowner, hoping to stay off the radar of local government officials, do a little work and get away with it?
According to the letter of the law, to build anything larger than a small storage shed in Saugerties, a homeowner must apply for a building permit, pay the appropriate fees and expect the town or village building inspector to check the construction periodically. The building inspector will also check to be sure the requirements for lot size and setbacks are met — how much of a lot is covered with the structure and driveway, and how far away from the road or property line the structure is, respectively. If the proposed building does not meet the requirements of zoning, the owner can appeal to the zoning board of appeals (ZBA), which has the power to grant an exception – called a variance – to the legal requirements. A variance is permission to, in effect, bend the zoning law.
Sometimes a homeowner may seem to get away with constructing an addition or deck without a permit. Town building inspector/zoning administrator Alvah Weeks says that although the building department doesn’t patrol the town looking for this kind of violation, these property owners end up being discovered when the assessor’s department does spot assessment checks or by the title company during a sale of the property. Occasionally, a neighbor may complain about an illegal addition or other violation of zoning codes, said village code enforcement officer Eyal Saad. “That is how I find out about some violations.”
Weeks related a similar experience. “We do receive many complaints regarding zoning violations from neighboring property owners including property maintenance complaints,” he said. “Many zoning related issues do come to us when an individual wants to change use of a parcel or expand on a structure requiring a building permit.”
What happens when a violation is discovered after the fact? Officially, the law carries stiff fines for noncompliance, but both town and village building inspectors said they would rather work with a homeowner than go to court. If the property owner is willing to obtain the required permits and meet the requirements after the fact, Saugerties building inspectors will generally allow him or her to correct the irregularity without penalty.
Zoning, and even building codes, are a fairly recent addition to the legal landscape. The village passed its first building code in 1957, and zoning wasn’t enacted until July of 1985. The town’s zoning was first enacted in 1989. Opponents of zoning laws cite America’s tradition of private property rights and personal liberty (is a man’s home no longer his castle?), and question the right of local governments to tell them what, where and how they can build. Just as the national debate over the role of the federal government has been going on since the Federalist Papers, today it’s not uncommon at local land-use hearings to hear sentiments about government encroachment on individual liberties (or more common, new commercial regulations or rigorous application of existing codes framed as anti-business).
Understandably, Saad doesn’t see the building codes as hoops for property owners to jump through. “The state code is actually a minimum standard,” he said. “It ensures that the building is safe. I wouldn’t want to buy a house that doesn’t meet the standards.”
Zoning makes sense because placing homes next to factories, say, can create hardships for the residents who must put up with noise or odors, Saad said. But zoning tends to involve painting large areas with the same brush, and this can sometimes impose excessive hardships on home or business owners, and for this reason towns and villages have zoning boards of appeals that can allow variances from the code in order to accommodate a property owner’s special needs. The ZBA is also empowered to interpret the law if a property owner disagrees with the building inspector’s interpretation, said Town of Saugerties ZBA chairman Joseph Roberti Sr.
Applications for variances require a public hearing, at which neighbors may speak in favor of or against granting the variance. What role does the neighbor’s opinion play in approval? ZBA chairman Roberti said the opinions expressed at public hearings have little influence on his decisions. Board member Brian Sawchuk says they do, and the board must balance a property owner’s rights with the possible effect on neighbors. If neighbors have strong opinions about a proposed exception to the zoning rules, Sawchuk says he takes that into account.
The majority of cases that come before the ZBA involve lot sizes and setbacks. Applications to use the property in ways prohibited in zoning, such as opening a store where this use is prohibited are more difficult, said Roberti. The property owner must show he cannot use the property in any way that the zoning permits.
Prior to making a decision, ZBA members generally visit the site involved, Roberti said. “We look at the sites in more than 90 percent of cases. In a few cases, members are familiar with the site, so a visit is not necessary.”
This article originally appeared in the August 19, 2010 issue of Saugerties Times.