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Setback for deck built on top of a carport obtained by variance

Cappo

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Red Hook New York
In 1985 a variance was granted for a carport to extend from house to property line. in 2009 I obtained a permit to build a deck on top of carport. 8 years later the Building department is telling me I now need a variance due to setback code for deck on top of carport. Does not the carport granted by variance in 1985 become the footprint of the dwelling? And if so, how do setback codes apply. Air rights etc. Does anyone have any experience or knowledge of this situation?
 

cda

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Welcome

And Welcome to city enforcement

1. Were you the owner through this entire process?

2. Do you still have copies of plans, paperwork, and approvals for the deck??

Not sure why the city approved it, now coming back and questioning it??

Are you trying to do more work, ?? Make your neighbor mad??
 

Cappo

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Red Hook New York
The variance was granted in 1985. Building dept. has a copy. I purchased the property in 2004.
Yes I have plans and permit to build according to stamped plans from building dept.which includes the deck on top of carport.
The deck has been completed for 3 years now. A staircase allowing egress from bedroom needs to be constructed from roof above carport to the carport deck.
I am most certainly not wanting to make anyone mad.
 

ICE

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In my AHJ a Planning Dept. approval can last forever but Building Dept. permits do not.

Having obtained a building permit in 2009 and not completing the work until 2017 there might be issues with an expired permit. The original variance was to build a carport up to a property line and it may or may not include a deck on top of the carport. I would tend to think that there was no approval to include a deck.

A building permit was issued but that may have been in error. Now eleven years later there might be an expired permit that will not be renewed due to the original error.

Purely speculation on my part. Shirley you have asked for the reason behind the request.
 

Cappo

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Red Hook New York
I was hit by a car on a motorcycle and was out of commission for a few years. Permit has been continually renewed. In addition, the carport was only one aspect of the renovation. Once the variance was granted in 1985 with no restrictions, the carport did become part of the footprint. What do you know about air rights?
 

cda

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So

I guess people from the 09s are not still in charge of building Dept??

I would walk in and do an open records request for

Any permits on the property

Any inspection reports on the property

Any other documentation about construction on the property

And see what you get,
 

cda

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Sounds like you have an approved deck

Are the stairs shown in the original plans?
 

Msradell

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Louisville Kentucky
What you are saying it certainly sounds like they don't have a case to make you remove it. The fact that there are stamped plans on file showing the deck on top of the carport that they approved means that they didn't have a problem with that then. They can't retroactively go back and say I have a problem with it.
 

ICE

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They can't retroactively go back and say I have a problem with it.
Oh but they can. It says right there on the permit that this permit does not grant you the right to violate any other laws, ordinances etc blah, blah, blah. Just because they said ok in 2009 doesn't mean that it is all of the sudden an okay, done deal.

I have seen plenty of carports built up to a property line. They all had a rated wall at the property line and many had a rated parapet.
 
Last edited:

cda

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Oh but they can. It says right there on the permit that this permit does not grant you the right to violate any other laws, ordinances etc blah, blah, blah. Just because they said ok in 2009 doesn't mean that it is all of the sudden an okay, done deal.

Need to see the paper trail

Yes may have a little trouble adding or finishing.

That is what they make appeals Board for
 

Cappo

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Red Hook New York
Garages and carports are part of the building footprint (Building Area) Therefore once the varianace was granted in 1985 for the carport - without conditions-setbacks do not apply.
 

cda

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Garages and carports are part of the building footprint (Building Area) Therefore once the varianace was granted in 1985 for the carport - without conditions-setbacks do not apply.

So are you good to go??

City happy or unhappy
 

mtlogcabin

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Oct 17, 2009
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Big Sky Country
Our zoning will not allow you to construct into a required setback. If the documents submitted for your variance for the carport had a height limit on it then you would be constricted to that height (air rights) unless you requested and where granted a variance to the original height limitation. If there is no such height limitation then I would be asking for a written interpretation supporting that from the zoning office

You get a variance for a single story carport then years later you come back and want to expand your residence overtop of the carport. That will not fly without another variance request. The same principle can apply to a deck use on top of the carport
 
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