Hoboken Legal Beagle – 5/27/2008
Today, we have a reader who is wondering if a neighboring buildings modification/construction was built illegally.
Too close for comfort
“We live in a condo on the second floor and own it. We bought about 3 years ago, and at that time, the large 5 ft windows of our bedroom faced a NEVER used deck that belongs to another building. Recently new tenants have moved in, and use the deck quite often. The deck runs directly to our bedroom window, so if you look out, you see the back of a patio chair. Literally it’s like the tenants are sharing our bedroom, with only windows in between us. We have heard that the patio was built without a permit. Does that make it illegal? Is there anything we can do?”
The Legal Beagle says:
If the patio was built without a permit it would be illegal and would have to be removed. I cannot clearly visualize what you mean by “The deck runs directly to our bedroom window” but it does not sound like a situation the Zoning Ordinance of Hoboken would allow. However, with so many structures in Hoboken having their size grandfathered in prior to the enactment of our current zoning ordinance in 1979, and so many variance given for so many buildings it is entirely possible that the structure is legal.
Theoretically, the duties of the Zoning Officer of the City of Hoboken include the authority “To conduct field inspections and special investigations either in response to a complaint by an individual, municipal agency or board or on his own initiative to ensure compliance with this chapter” but in reality you cannot expect to get any help from the Zoning Office. And before those haters begin hating on the current zoning officer, I must say the problem is far bigger than one totally overburdened public official. It would really be great if all zoning information was digitized and available but that would take a concerted and expensive commitment by the Mayor and City Council. See the great work Councilperson Beth Mason and others are doing in this area with People for Open Government, but until some time in some far away google future, where all information is available online, you have to do all the zoning investigation work yourself.
SEE THE REST OF THE RESPONSE AFTER THE JUMP…
(Hoboken411 Legal Beagle, continued…)
“We have heard”, “They Said”, “Everyone Knows” “My friend said that”; as an attorney you hear these words all the time, the problem is that you need more than unfounded hearsay to act on a clients complaint. The conundrum here is to uncover the zoning records for the next store building to see if permits were granted. First, get as much information as you can from the people you heard tell that the patio was illegal, the more specific information you have the better.
Ideally, as stated before, this is a job for OPRA (Open Public Records Act), but as Councilperson Beth Mason has shown in her commendable odyssey to obtain public records, the reality of obtaining proof that the patio is illegal or legal may be beyond the ability of ordinary human beings. But you might as well at least try to see if any records exist.
Hoboken’s Official website has the OPRA form to download. Check “other” and ask for Any and all documents that the Building Department or Zoning Office or Zoning or Planning Board have regarding the building located at _____ Street. Specifically but not limited to the construction of a Patio Deck at the rear of the building”
After a few days you will get a response from the City. If the records exist you can determine if the Patio was built legally or not. As a general rule if a building is located on a standard lot that is 25ft wide and 100ft deep the maximum legal depth of the building including patio would be 60 feet. If the building was built within the last 30 years or so a variance would have been needed to go beyond the 60 feet. I would also put the address into Google Earth and see if the Patio appears out of place on your block. Also take some pictures of the back of both buildings and as much of an overview of the back side of other buildings on your side of the block.
Gather all the above and make an appointment with an Attorney that knows zoning in Hoboken, (either a free consult or an approx $250 fee would be fair for the initial consultation) and get an opinion of the chances of success. The more information you can give the attorney the more productive that first meeting will be.
Based on the fact the patio has been there for at least three years, and the poor chances of the City actually having any zoning records that are relevant to your complaint, the chances of you actually having the Patio removed are less than winning the lottery and getting hit by lightening on the same day.
And your situation is really no better if the attorney says you might have a case. To even begin to get your case presented to the Zoning Board or to the Courts would cost at least a $2,500 retainer for the attorney and a $1,500 retainer for an architect to act as your expert in proving the patio was illegal. These are just initial costs and to make matters even worse, be aware that legal costs are not recoverable from the other side if you win. You can expect the owner of the patio would put up a fight since you would depreciate the value of her property so you can be sure this matter will get fully litigated.
On a practical note, a common solution to your problem, since many people have had the same problem, if not to the same degree, is to get Silhouette Blinds that open from the top down.