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PERGOLA

Mr. Levin,
I am in NY and this certainly appears to be a zoning issue not a "construction" or "code" issue.

Just apply for a variance, alot of paperwork but it might not be an issue. As to who made the mistake? doesnt really matter now, just meet with the powers to be and figure it out. Doesnt seem to be the end of the world
 
I and others suggest this sure seems to be a zoning ordinance issue and I noted you referred to building code and building inspector. Then you said setback, a zoning term. But giving you the benefit of the doubt, is there any chance you are within 5' of the property line, in which case I think it could be building code? I have no idea how you would get the correct fire resistance rating on a pergola.

Did you submit for a building permit with plans before construction? Did they issue a building permit? Very hard to get this is not zoning.
 
Thanks for everyone's input (except for the snarky comments). Here's the whole backstory.
The lot was part of a cluster subdivision which has a more restrictive rear yard setback requirement. Unfortunately, that information is in the planning department files, and not part of the zoning ordinance or any readily available zoning maps.
I did a zoning analysis (as usual), submitted a permit application with a site plan, got a permit... etc, etc, etc...
Now during final inspection they realized the zoning issue.
Since the initial post I've been working with the building official to resolve this.
 
VLADIMIR LEVIN said:
Thanks for everyone's input (except for the snarky comments). Here's the whole backstory.
The lot was part of a cluster subdivision which has a more restrictive rear yard setback requirement. Unfortunately, that information is in the planning department files, and not part of the zoning ordinance or any readily available zoning maps.
I did a zoning analysis (as usual), submitted a permit application with a site plan, got a permit... etc, etc, etc...
Now during final inspection they realized the zoning issue.
Since the initial post I've been working with the building official to resolve this.
Click to expand...
So,....thank you for sharing the full story. It would have been helpful from the beginning.

With that being said, this is why we require a "form board survey" before you can start pouring concrete for footers, slabs, etc. It eliminates these issues before they happen. We also include elevations on our form board surveys since my entire beach town is in a flood zone.
 
bill1952 said:
Is that "more restrictive rear yard setback" in your deed?
Click to expand...
Deeds do not normally call to any setback lines. Usually your legal will call to Survey, if not thats what we call "deeded land" and that starts with a legal description of what you own. "Beginning from the northwest corner of the southwest corner of section 19 etc etc etc....." A Title report sometimes does call to setbacks (Schedule B Exceptions) or if known setback encroachments do exist sometimes are in a Title Report. The people earlier in this thread are correct, its usually zoning that dictates the setbacks. Setbacks change all the time. Sometimes a subdivision plat will show say a 30' setback from 30 years ago but zoning ordinance is say 10' I see it all the time.
 
VLADIMIR LEVIN said:
Issue is not getting a permit itself, but that they issued a permit and upon final inspection declared that it was in the setback and needs to come down!
I'm looking for ammo for when I speak with the Building Official; possibly trying to get it removed from the permit.
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Land Surveyor here (Partners with my old man we are licensed AZ, CA, NM, AZ, and OR) - see this all the time. Just had a client that build a shed and after it was built the city stated he was encroaching into the setback. We completed an "As Built" Survey which basically is a map that showed the shed in relation to the Property Lines, setbacks, etc. Turns out he WAS NOT encroaching. I have seen it where clients are encroaching and have to apply for a variance.

I would ask the question, how the hell does the inspector know where the setback line is? Calibrated eyeball? Or are your Monument(s) **Property Corners** in and flagged up? Usually will be 1/2" or 5/8 rebar with a license identification tag on it (sometimes fall off or disturbed) or could be 1/2", 3/4" or 1" iron pipe.

Its always best to have a Land Surveyor stake any building, even a shed, because its an insurance policy. They tie into monumentation and resolve your boundary and stake your building according to plan assuring you are not encroaching into setbacks, etc.
 
jar546 said:
So,....thank you for sharing the full story. It would have been helpful from the beginning.

With that being said, this is why we require a "form board survey" before you can start pouring concrete for footers, slabs, etc. It eliminates these issues before they happen. We also include elevations on our form board surveys since my entire beach town is in a flood zone.
Click to expand...
We usually just set a TBM (Temporary Benchmark) at the Base Flood Elevation in these circumstances and stake building envelope per plan prior to the contractor building the forms and then come back to verify. Then after we complete a FEMA Flood Elevation Certificate. Its always a headache when a DIYer or even a Contractor has stuff all messed up and you have to make multiple trips because they didnt have it staked in the first place. Just had this happen the other day for a site in San Mateo County. He already built the forms and the city wants to verify they are per plan after they were already formed. I have not brought in the field data yet so we will see.
 
This is an interesting thread. Vladimir, thanks for posting. I do zoning analysis all the time but you opened my eyes to requirements that might not show up on zoning maps or ordinances. Since these select units have their own unique limitations, I would think that would be on their deeds. If not, then how do people find out about these types of situations? There is no HOA to alert you to theses unique limitations. Do you do a Planning request for the lot you are interested in? This isn't helping your case, I'm just brainstorming on how to prevent this in the future. BTW, I saw a final Building inspection completely ignoring Planning Conditions of Approval (that are bound into the set of Drawings....page 1)....one was a condition to tear down a detached garage! Sometimes building and planning coordination is weak.
 
atvjoel said:
Deeds do not normally call to any setback lines. Usually your legal will call to Survey, if not thats what we call "deeded land" and that starts with a legal description of what you own. "Beginning from the northwest corner of the southwest corner of section 19 etc etc etc....." A Title report sometimes does call to setbacks (Schedule B Exceptions) or if known setback encroachments do exist sometimes are in a Title Report. The people earlier in this thread are correct, its usually zoning that dictates the setbacks. Setbacks change all the time. Sometimes a subdivision plat will show say a 30' setback from 30 years ago but zoning ordinance is say 10' I see it all the time.
Click to expand...
Doesn't seem to be a zoning restriction, but some other encumbrance. That's why I thought it might be in the deed.
 
If it is a deed, HOA or other civil restriction why is the Building Official - Zoning Enforcement Officer involved?

As both the BO and ZEO in my community my office does not do official deed research, nor enforce restrictions place on a property by others, except those restriction place by the Planning Board as part of an approved plan by that board.
 
TheCommish said:
If it is a deed, HOA or other civil restriction why is the Building Official - Zoning Enforcement Officer involved?

As both the BO and ZEO in my community my office does not do official deed research, nor enforce restrictions place on a property by others, except those restriction place by the Planning Board as part of an approved plan by that board.HOA, CC&Rs can also have restrictio
Click to expand...
 
I am not saying that the HOA, CC&R can not have restrictions. I am saying in Massachusetts they are not enforce by the Building or Zoning Official.

So in the OP's case if the violation is not a Zoning or Building Code violation, why is the BO involved in the enforcement question?
 
I have worked in cities that had HOAs. We would not issue a permit for many items without an HOA approval. It’s better to preempt a huge mistake than to wait for the grief that follows when they find out that they can’t have that tile roof or addition in the front yard etc.
 
ICE, that is a forward thinking method, there are many requirements that are not part of my approval process, that we point customers to. I am familiar with HOAs from afar. We have 2 condo associations in town and any exterior work is permitted by the association so permit form the BOD has be all read given.

Hats off to you if your office can keep track of a multitude of different HOA rules.
 
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