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Violated City Setback Ordinance? Call the City and let them deal with it. You stay "independent" as regards the city asking for permits, plans, etc. Let the City be the heavy and you just sit back and appreciate that you are getting your view and "full value" back.
It never was her/his view. She bought it knowing the current view and the location of the house next door. There is no full value or view to get back.
- what's the bottom line? what are you hoping to achieve? do you want your neighbor to tear down their addition? Do you want compensation (from whoever)? do you want to prevent others from ignoring the setback? #1 question, imho, is to ask yourself what is your endgame.
- the HOA will get themselves into a legal bind if they knowingly don't enforce their CC&R's. If your goal is to motivate the HOA into some action, they need to be reminded of this fact.
- perhaps one equatable solution is to be sure that the current neighbors addition can _legally_ be grandfathered in (vs verbally on the HOA's whim) to keep the setback rules enforceable. This assumes that this is really your goal, to prevent others from similarly ignoring setback rules and possibly blocking sight lines, etc.
I really don't see how the homeowner can be grandfathered in if the 20' setback provision was in place at the time of the addition. There isn't a provision to grandfather in. As you mentioned, it is a problem for the HOA to resolve and may require a retroactive amendment for specific time period -- perhaps requiring a fine rather than demolishing the structure. The HOA would also need to make sure there aren't any other violators. I would think that would require approval of the homeowners.
Also it might be a future problem for the current homeowner if he tries to sell his property and doesn't disclose setback violation of the addition per the CC&R's.
Last edited by Maddie104; 08-20-2021 at 03:25 PM..
I really don't see how the homeowner can be grandfathered in if the 20' setback provision was in place at the time of the addition. There isn't a provision to grandfather in.
Well, it would be using the term "grandfather" loosely, but the HOA could acknowledge that the setback has been violated for so long, they are not going to require any sort of fix now.
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As you mentioned, it is a problem for the HOA to resolve and may require a retroactive amendment for specific time period -- perhaps requiring a fine rather than demolishing the structure.
They could just shrug their shoulders and say good enough and leave it alone.
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The HOA would also need to make sure there aren't any other violators.
Why? Cops don't catch all speeders, the IRS does not catch all tax cheats. Why should the HOA wander around the neighborhood looking for violations now? Are they going to reread the CCR and go through everybody's home with strict scrutiny? Just because OP found one potential violation, that does not mean they have to get all authoritarian.
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I would think that would require approval of the homeowners.
Depends ln the CC&Rs. Maybe, maybe not.
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Also it might be a future problem for the current homeowner if he tries to sell his property and doesn't disclose setback violation of the addition per the CC&R's.
Has it been established that there is a violation? I may have missed the post, but OP seems a bit fuzzy between HOA regulations and civic bylaws. We also do not know that the additional wasnt built with a valid variance.
Its not a house just a lot right now. I don't care about being a pariah, and I'm not giving up my beautiful mountain view (away from the neighbors) just for 12 feet. Permits were pulled, but everyone in the decision making chain screwed up. There was no variance requested, there are no circumstances which would require a variance, and they don't qualify for one now.
How can I determine the negative impact on my property if the structure is not taken back to the setback line? Who besides an attorney would determine that? Thanks.
OP you should talk to a real estate attorney about a Lis Pendens action. Sounds as if you'll need it sooner or later.
Why a Lis Pendens:
Lis pendens provides constructive notice, or a warning, to prospective homebuyers that the ownership of a property is in dispute and there is litigation pending. Lis pendens can only be filed if a claim is related specifically to the property. https://www.google.com/search?q=lis+...hrome&ie=UTF-8
Well, it would be using the term "grandfather" loosely, but the HOA could acknowledge that the setback has been violated for so long, they are not going to require any sort of fix now.
They could just shrug their shoulders and say good enough and leave it alone.
Why? Cops don't catch all speeders, the IRS does not catch all tax cheats. Why should the HOA wander around the neighborhood looking for violations now? Are they going to reread the CCR and go through everybody's home with strict scrutiny? Just because OP found one potential violation, that does not mean they have to get all authoritarian.
Depends ln the CC&Rs. Maybe, maybe not.
Has it been established that there is a violation? I may have missed the post, but OP seems a bit fuzzy between HOA regulations and civic bylaws. We also do not know that the additional wasnt built with a valid variance.
Please reread rather than post questions and if you are fuzzy on details. Do not expect others to do the work for you.
They could just shrug their shoulders and say good enough and leave it alone.
Why? Cops don't catch all speeders, the IRS does not catch all tax cheats. Why should the HOA wander around the neighborhood looking for violations now? Are they going to reread the CCR and go through everybody's home with strict scrutiny? Just because OP found one potential violation, that does not mean they have to get all authoritarian.
One key aspect of being able to enforce CC&R's is that they must be enforced and enforced impartially. If the HOA either does not enforce, or selectively enforces a particular restriction, then they will have reduced legal standing if a homeowner takes them to court. The key thing is that if an infraction is brought to their attention, they _must_ act in some manner. There is no expectation that they are omniscient about the goings on within their jurisdiction, but once an infraction becomes known, the clock starts ticking, so yes, they do have to "get all authoritarian", that's the way the law works in these situations. It's similar to copyright violations, if a copyright holder does not actively enforce and act on, known, violators, they can lose the ability to enforce their copyrights at all (this is very different from say, a patent).
One key aspect of being able to enforce CC&R's is that they must be enforced and enforced impartially. If the HOA either does not enforce, or selectively enforces a particular restriction, then they will have reduced legal standing if a homeowner takes them to court. The key thing is that if an infraction is brought to their attention, they _must_ act in some manner. There is no expectation that they are omniscient about the goings on within their jurisdiction, but once an infraction becomes known, the clock starts ticking, so yes, they do have to "get all authoritarian", that's the way the law works in these situations. It's similar to copyright violations, if a copyright holder does not actively enforce and act on, known, violators, they can lose the ability to enforce their copyrights at all (this is very different from say, a patent).
^^^^^
This.
I was on an HOA board as head of the architectural review committee. I approved a small storage structure/barn in the back yard of a property. These are not specifically restricted or not allowed based on the CC&Rs. However, in the past board members in my position attempted to restrict such structures "because we don't want them."
As a result the enforcement of the nonexistent rule was inconsistent at best, clearly defined by a short walk around the neighborhood where you could easily see a number of such structures in back yards.
When the president got all upset with me for "putting her in this position" because an adjacent property owner complained about the structure when it was they built, I pointed out that the HOA's inconsistency in enforcing such a rule, despite it being nonexistent, precluded me from denying a property owner from putting such a structure on their property.
It just so happened that the neighbor who complained had been denied the same a few years earlier. Ouch.
Understanding that the board was irrertieavbly broken, I resigned. Nothing I wanted to be a part of...
Thanks for the link Gus. met the neighbor once, seemed nice enough. What’s odd is him thinking his property line was another 40 feet from his house, when the plat maps are pretty easy to read, and count GIS maps are available for free online. Also, the surveyor found the property pins without issue, still had the orange caps poking out of the ground, which he added stakes and orange tape to for visibility Would have been easy to find when he built. And I know they’re accurate, as my lot contains the POB.(point of beginning)
The same neighbor that showed up and raised a stink during your approval process?
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