Page 6 of 7 FirstFirst ... 4 5 6 7 LastLast
Results 51 to 60 of 64
  1. #51
    Join Date
    Apr 2012
    Posts
    29

    Default Re: Can a Neighbor's Fence Put a Pre-Existing Fence Out of Compliance

    Not a contract with regard to the fence - because you are right - I seem to be ok on that threat even though I didn't hear back from the guy I called.

    I don't know... I guess after 18 months of being harassed with codes and BS, I don't believe he is really serious about just leaving each other alone. Figured that would show if he is serious or not.

    But I don't want to pollute this thread with too much non relevant info. It was just a fleeting thought.

    - - - Updated - - -

    Ok, so I got a call from the county guy - and he apparently called my local town code guy - and they seem to be at an impasse. Both of them are interpreting the line about other structures differently.

    Now I get to wait and see what a guy FURTHER up the chain thinks. This also makes me wonder more about my local code guy - since he seemed unsure about it before, one would think that getting a call from someone else clarifying the issue would resolve everything. But for him to argue about it with the county guy makes me suspicious that he is not as neutral on this issue as he leads on.

    So back to worrying again.....

  2. #52
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Can a Neighbor's Fence Put a Pre-Existing Fence Out of Compliance

    nah, even if you were to lose on the fence issue there is no need to get all worried again.


    as I said before, if they do rule that the fence is an issue, then it is the fence the neighbor is considering putting up that would be out of compliance. You are compliant. Your pool will still be compliant after the fence is built. The rule determines how the fence is built so, if it gets to it, you argue the non-compliant fence cannot be allowed to be built.

  3. #53
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Can a Neighbor's Fence Put a Pre-Existing Fence Out of Compliance

    Quote Quoting jk
    View Post
    as I said before, if they do rule that the fence is an issue, then it is the fence the neighbor is considering putting up that would be out of compliance.
    You have said it before, sure, but repetition doesn't change this fact: The presence of the pool and requirements for a pool barrier on the neighboring property would not put an otherwise lawful boundary fence "out of compliance".

  4. #54
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Can a Neighbor's Fence Put a Pre-Existing Fence Out of Compliance

    Quote Quoting Mr. Knowitall
    View Post
    You have said it before, sure, but repetition doesn't change this fact: The presence of the pool and requirements for a pool barrier on the neighboring property would not put an otherwise lawful boundary fence "out of compliance".


    if the neighbors fence can make the OP's installation non-compliant, then the fact he is constructing a fence near a pool it must be built per the requirements for a fence near a pool since it is the type of construct that is making anything a code violation.

    If the fence built with the good side out is not out of compliance, then regardless of how it is built, it cannot make the pool installation non-compliant.

    It's one or the other.

    It is simply using the code inspectors poor interpretation of the codes against him.

  5. #55
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Can a Neighbor's Fence Put a Pre-Existing Fence Out of Compliance

    First, there's a significant question as to whether the neighbor's fence can put the pool out of compliance, with the state code officials apparently stating that it cannot. But that aside, no, you are absolutely incorrect that the pool on the neighbor's property would make a lawful boundary fence on a separate property "out of compliance".

    The pool must be in compliance with the code (subject to grandfathering and the like) on the lot where it is situated. The boundary fence must be in compliance on the lot on which it is situated. The question of whether the boundary fence affects the compliance of the pool in no way affects the neighbor's right to construct that fence on his own land.

  6. #56
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Can a Neighbor's Fence Put a Pre-Existing Fence Out of Compliance

    But that aside, no, you are absolutely incorrect that the pool on the neighbor's property would make a lawful boundary fence on a separate property "out of compliance".
    I'm not arguing the pool makes the neighbors fence non-compliant. That would be silly. This entire discussion is based on the premise the code guy is leaning toward there would be a compliance issue if the fence is built as threatened.

    I'm saying that if code guy rules the fence affects the pool, then the pool affects the fence. You cannot hold one property owner responsible for an issue and not the other and if code guy wants to apply the rule that the conditions on the neighbors property affect the OP, then the conditions on the OP's property affect the neighbor and the code issue at hand is:

    you cannot construct a fence as the code prohibits when it applies to a pool boundary issue:



    (e) Fences surrounding swimming pools must comply with section 230-20B(3).




    so it comes down to: does building the fence create a compliance issue or not.

    If it causes a compliance issue then the city cannot allow a anybody to build such that it results in a compliance issue without a variance. but even more important is; if this creates a code compliance issue, it is the fence that is non-compliant since you cannot build a fence as a boundary fence around a pool of the type being considered.

    I simply believe code guy has left the building, or at least his ability to interpret codes.

  7. #57
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Can a Neighbor's Fence Put a Pre-Existing Fence Out of Compliance

    If the fence were pre-existing, and state regulations or the local zoning ordinance required that the pool barrier be set back from any such object, then the location of the pool and barrier could easily be affected by the presence of a neighbor's property line fence, or air conditioning unit, or other that would allow somebody to bypass the barrier. In the present discussion, the local zoning ordinance does not take any objects on neighboring lands into consideration, and the state apparently interprets its regulations such that it is unconcerned with objects on neighboring lots, such that the issue is moot -- but other state and local governments do impose setback requirements on both sides of a pool barrier. When such a restriction exists, the safest course of action (and often the required course of action) is to observe the setback requirements on the side of the property line where the pool is located, even though that will often building a smaller pool.

    The secondary question is whether if a state or local government added such a restriction to existing regulations or ordinances, it could be applied to an existing pool or pool barrier. Were a code enforcement officer to make such a determination, as has already been stated, it would be possible to pursue administrative appeals and (if necessary) litigation, which would generally be focused on grandfathering. That question is a close cousin of the question that we have been discussing, whether a change on a neighboring property might throw the pool or barrier out of compliance with the code, even though it was approved and properly permitted prior to construction. Were the local code amended, that question would largely be resolved by sec. 230-23, governing nonconformities (i.e., the grandfathering provision); however, the local code is not the issue. For the various state codes, the first issue would be to confirm that the pool and barrier were fully compliant with all applicable state codes at the time of construction -- if not, there may be a need to get a variance even though a permit was issued in error (see, e.g., Parkview Assocs. v. City of New York, 71 NY2d 274 (1988) "estoppel is not available to preclude a municipality from enforcing the provisions of its zoning laws and the mistaken or erroneous issuance of a permit does not estop a municipality from correcting errors, even where there are harsh results") -- and, if there were no error in the issuance of the permit, the second issue would be to look at the grandfathering provisions of the relevant codes for which the pool is alleged to be in violation to see if they include any provisions that would prevent the pool or barrier from being grandfathered based upon their compliance with the prior code.

    You seem to be focused on some sort of concept of fairness -- that if activity on one lot might put a structure on another lot out of compliance with applicable building codes and regulations, it has to be a two-way street. However, that is not the case. In this situation, even if the fence put the pool or its barrier out of compliance with the code, that would have absolutely no impact on the right of the neighbor to build a code-compliant fence on his own land. A neighbor's boundary fence would not be a fence "surrounding [a] swimming pool" -- a fence on one side of an object does not surround the object. It would also not be a barrier fence for the pool, even if it were adjacent to the actual barrier.

  8. #58
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Can a Neighbor's Fence Put a Pre-Existing Fence Out of Compliance

    let me say; you're right. I was hung up on the code the OP originally posted rather than the state code which is the only relevant code. The local code does not address the issue at all.

    The secondary question is whether if a state or local government added such a restriction to existing regulations or ordinances, it could be applied to an existing pool or pool barrier. Were a code enforcement officer to make such a determination, as has already been stated, it would be possible to pursue administrative appeals and (if neces.....
    and there is the answer. I knew if I poked you long enough you would come up with it. The pool install is compliant. I said that long ago. I erred in calling it, after the fence is up, still a conforming construct when it is actually a permitted non-conforming construct (or should be anyway)

    from the state code:

    • Barriers shall be located so as to prohibit permanent structures, equipment or similarobjects from being used to climb the barriers.
    you say it does not make the new fence non-compliant. My position, whether right or wrong, is that

    the only thing you and I actually don't totally agree with you is on is whether the new fence, which actually does create a non-compliant issue, can be built even though it does create a non-compliant condition. I won't argue that point. I know I can't convince you otherwise. I would be concerned that the city could allow a hazardous (admittedly by the prohibitions in intentionally creating such a situation) construct to be built though although I understand your point about not being able to limit the neighbor due to the OP's pool.

  9. #59
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Can a Neighbor's Fence Put a Pre-Existing Fence Out of Compliance

    Quote Quoting jk
    View Post
    and there is the answer. I knew if I poked you long enough you would come up with it. The pool install is compliant. I said that long ago. I erred in calling it, after the fence is up, still a conforming construct when it is actually a permitted non-conforming construct (or should be anyway)
    The question of the pool barrier's compliance with the state code seems likely to be resolved in a manner consistent with what has reportedly been stated by state code officers -- that they don't care what lies across the property line. But apparently I must again repeat, that has absolutely nothing to do with your insistence that something on the pool side of the property line could prevent the construction of the boundary fence on the opposite side, or your peculiar suggestion that the boundary fence could be deemed either the pool's barrier or to surround the pool.
    Quote Quoting jk
    the only thing you and I actually don't totally agree with you is on is whether the new fence, which actually does create a non-compliant issue, can be built even though it does create a non-compliant condition. I won't argue that point. I know I can't convince you otherwise.
    We have a couple of centuries of recorded case law to draw from. You can start convincing me by producing a case from any century in any court of any state that supports your position, and we'll work from there.

  10. #60
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Can a Neighbor's Fence Put a Pre-Existing Fence Out of Compliance

    What did you miss ? I agreed with your statements about the issue other than the point I said I wouldn't argue?

    do I believe a municipality has the power to refuse to allow a person to build what they deem to create a hazardous condition? Absolutely. Can I support it? No idea. Am I going to? Nope. If you believe or know me to be incorrect then that's where it will stay. The op has a path to likely success and that was the point of the thread.

    1. Sponsored Links
       

Page 6 of 7 FirstFirst ... 4 5 6 7 LastLast

Similar Threads

  1. Fences and Walls: Neighbor Built an Unattractive Fence, Ten Inches from an Existing Fence
    By js2911 in forum Real Estate Ownership and Title
    Replies: 4
    Last Post: 10-07-2015, 06:23 PM
  2. Fences and Walls: New Boundary Fence Won't be Straight Due to Neighbor's Existing Fence
    By sylvie2 in forum Real Estate Ownership and Title
    Replies: 1
    Last Post: 05-19-2013, 05:39 AM
  3. Easement Use and Enforcement: New Neighbor Cuts Gate into Existing Fence to Gain Access to Utility Easment
    By pbmiata in forum Real Estate Ownership and Title
    Replies: 10
    Last Post: 04-29-2012, 09:11 AM
  4. Fences and Walls: Where to Place Fence After Survey Shows Existing Fence from Neighbor 6" from Marker
    By pon2000 in forum Real Estate Ownership and Title
    Replies: 5
    Last Post: 11-17-2011, 01:44 AM
  5. Neighbor Threatening To Move Existing Fence Onto My Property In New Jersey
    By JourneyofJoy in forum Real Estate Ownership and Title
    Replies: 2
    Last Post: 03-23-2008, 03:49 PM
 
 
Sponsored Links

Legal Help, Information and Resources