Suing neighbor lacking building permit in NYS

Question

I have a small vacation home in upstate NY. My next-door neighbor constructed a cinderblock additional building behind their home and have started using it for their business. They claim that they had been issued a building permit, but can't find it. The village cannot produce any record of a permit, but refuse to penalize them as they are long time residents and are very friendly with the local officials. If they can't prove they have a permit, can I file a lawsuit compelling them to demolish this building? Thanks for any advice.

Answer 1

Your question raises three issues:

1. The building permit process;
2. Building code enforcement; and
3. Zoning ordinances/regulations.

We need more details on the jurisdiction because most building permit, building code, and zoning issues are governed by county and/or town ordinances.

Generally, the remedy for not having a building permit is paying enhanced fees--assuming the structure is built to code, adheres to zoning requirements, and passes inspection.

The usual remedy for a building code violation is being forced to fix the issue by making it adhere to the applicable building code requirements. Sometimes you have to pay a fee for an additional inspection or have other hurdles to jump through that can slow down a project.

The remedy for violations of zoning ordinances is much stricter and can involve criminal or civil penalties. These civil penalties can involve a person being forced to demolish a building or enjoined from using their house a business. Zoning is a complicated area of law because the rules and regulations vary from one town to another.

To directly answer your question:

Can I file a lawsuit compelling them to demolish this building?

Answer: Get a lawyer familiar with local land use regulations.

Other thoughts/Considerations: Most jurisdiction have a process for filing a complaint with the agency that regulates zoning laws. That's probably your first bet. Generally, people don't have the right to sue their neighbor for zoning issues unless they have exhausted their administrative remedies.

If the local officials don't take action because they're friends or connected with your neighbor, could could file writ of mandamus in court. In New York they call it an Article 78 review. Basically, a writ of mandamus/article 78 review is a lawsuit that is seeking to force a government official or government body to do something it is required to do. So you'd be filing a lawsuit asking the zoning board/building code enforcement to "do it's job."

Here is the law I am referring to: NY CPLR § 7803. See this guide for more information on how an article 78 review works.

Also, Pace Law School has this guide that seems pretty helpful in understanding the basics of NY Land Use Law called Beginner's Guide to Land Use Law.

Also, don't treat these resources as gospel or view this post as legal advice. If you're considering suing anyone about this issue, you would be wise to consult with a land use/zoning lawyer.