Hypothetical Question About Setback Violation
There's something I've wondered about hypothetically from time to time, and I'm curious if anyone here has encountered it for real, especially in either Connecticut or Massachusetts. Say it's discovered that an existing structure violates a current zoning setback requirement. Also say that the requirement long predates the construction of the structure. And say that the structure isn't brand-new; it's been in use, occupied, etc.
So, what happens? Is some statute of limitations relevant? Who has standing to bring an action: the abutters, the municipality, a homeowners association if there is one? Does it matter whether or not it can be shown that there was an approved building permit or that an occupancy permit was issued? I suppose the municipality might refuse to issue permits for future modifications to that structure, or maybe for any work on the property, regardless of a statute of limitations. But is there any penalty that can be imposed "now?"
Does anyone have any thoughts, or has anyone actually seen this in action?
Since setbacks are political constructs imposed by local boards, or possibly platted covenants, they can't predate non conforming structures. They can still impose restrictions. If an existing structure is grandfathered normally a homeowner may not improve their house on the side of the encroachment. If a house burns down it may not be rebuilt with an encroachment
New Hampshire here, but I had a recent situation where an angry abutter was attempting to state that the ordinance required a special exception for a certain structure. The angry abutter constructed a similar structure ~8 years earlier without said special exception. The Town Attorney told the angry abutter in no uncertain terms that there was no statue of limitations for an illegally constructed structure.
The case you describe in your post I would think and Equitable Waiver would be most appropriate, part of a variance if use is expanding.
In Fl 99 times out of 100 a variance is granted and recorded. The surveyor usually handles the necessary documents. 😎
I'm not saying I have the answer but I do know that zoning and codes can have teeth. I would say the least they could do is red flag the property. One of my brothers is in the middle of purchasing a house in Chicago. Everything was going great until a week before closing back in November. It turns out that two owners ago, but less than 10 years ago, a two story porch was constructed on the property without permits. According to his house inspection it appeared to meet code for the time of construction. Just before closing the title company found a red flag placed by the city halting any sale until the matter was dealt with. The seller has been working, since November, to have and SE or architect prepare plans to bring it to current code. Apparently the current owner paid cash and did not go through title insurance so he is on the hook. I also think that since it is a rental duplex the city can hold the owner's feet to the fire.
Bottom line, they might not be able to force action now but they may be able to when it come time to sell it.