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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.

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    You may also want to consider whether you can sue the village to compel it to enforce its ordinances.
    – phoog
    Commented Jul 13, 2016 at 18:12
  • Can you list the Town or County? That information might be relevant since building codes tend to be enforced at the town/county level.
    – Mr_V
    Commented Jul 13, 2016 at 20:16

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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.

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  • Thanks so much for taking the time. Its in delaware county. We actually sued the neighbor for expanding their non-conforming business without a variance, and after winning at the appellate division, they were forced to cease use of the building. They then proceeded to apply for, and were granted a use variance by their friends on the ZBA. We then took the ZBA to court and after an appeal, the 3rd dept ruled the ZBA wrongly granted the variance as the neighbors provided insufficient proof to meet the criteria. Now they are reapplying for the variance again, and we're sure to be back in court.
    – jstyles85
    Commented Jul 13, 2016 at 22:04
  • Our lawyer is a good friend and a renowned civil rights attorney, but certainly not a zoning expert by any means. I do appreciate the advice regarding the penalties for lack of a building permit. The additional structure DEFINITELY violates the setback restrictions in the zoning ordinance so perhaps that's in our favor. Thanks again!
    – jstyles85
    Commented Jul 13, 2016 at 22:13
  • Another thing I forgot to mention is the potential for conflicts of interest. If the people making the zoning decisions are close friends, business partners, or relatives of your neighbor you might be able to force them to recuse themselves.
    – Mr_V
    Commented Jul 13, 2016 at 23:24

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