Land use dispute with neighbor

[surfinboy]

We're having a land dispute with the neighborhood bully who lives directly behind us, on the other side of our backyard fence. We're trying to replace our 50-year-old garden shed that was falling apart with a new one - slightly taller, but on virtually the identical footprint of the old one - and he's absolutely determined to prevent us from doing this.

The main issue is setback: to build a structure on one's property in our town, the standard setback is 15 feet on the back and sides, and 30 feet from the front. However, if the structure is under 120 sq. feet, you can apply for a special permit to reduce that setback to 1/3 of the requirement (so we could have it 5 feet from the edge).

Before we became well educated about the setback requirements, we applied for a permit (and submitted the tape survey drawing that was given to us with our mortgage, along with a sketch and photo of a similar shed) and the town approved it without batting an eye. A month ago we started building it, and the neighbor filed a complaint with the town. Two separate inspectors come out, say it's fine. Nonetheless, this person living near us is the neighborhood bully and years ago through a zoning appellate board hearing successfully forced our next-door neighbor to take down a shed they tried to build (at great expense to them). Unfortunately, they had not applied for a permit. Nonetheless we anticipated this becoming litigious, so we did more investigating into what could go wrong.

We found out that the tape survey used for mortgage purposes is not considered official enough if you're applying for a building permit, and you need to have the results of an instrument survey. (So now the town of course bears some responsibility for approving this in the first place.) We get the instrument survey. $950 later, we find out that the shed is in fact 3 feet from the property edge, and to meet the setback exception we have to move the entire shed back - foundation and all, which we actually can do by renting some special jacks - 2 feet. A pain, but it can be done.

The next step is a hearing with the appellate zoning board. Apparently if it's 15 feet, no one can complain, but if you want to apply for a reduced setback, there has to be a hearing with the appellate zoning board, anyone who wants to come complain about it can do so, and then the 3 people on the board have to agree unanimously that the structure is okay. We're also treated to a $400 appeal fee, whether we win or lose.

We've developed a good relationship with the town's acting building commissioner, one of the inspectors who came out to look at the shed. He's very much on our side and thinks it will pass without a problem. He's not on the zoning board, but he may be at the hearing and at the very least he's going to write a letter to the board defending our case. However, the curmudgeon is a long-time resident who's lived here for around 30 years, and it wouldn't surprise me if he has close personal connections with people on the zoning board - the last time he bullied our neighbor into taking down his shed, he showed up at the hearing with his entire extended family and his daughter who's an attorney of some sort. At the advise of a local land-use attorney, we're getting letters of support from other abutting neighbors, and we're going to try to get a few of them to attend the hearing with us. We're also going to hopefully get a letter of support from the real estate agent who sold us the house, saying how the new shed will likely increase our property value (and that of the complaining neighbor's).

The curmudgeon never complained about the old shed - he's upset because this one's taller and blocks his view (of our backyard and living room, apparently).

The attorney didn't say we have a weak case, but she did not sound as optimistic as the commissioner, and said the board can go either way, despite the fact that there's nowhere else on our property where we could put a shed that would meet the standard 15/15/30 setback requirement. Thanks to this neighbor, we could be an additional $1,500 in the hole (in addition to the lumber and shed supplies) and have no shed. It's insane - I'm trying to find holes in our case and can't find any. We've done everything on the up-and-up, we've always been nice to this neighbor despite the fact that he's harassed us about other asinine things too (our large garden, our birdfeeders, etc.), yet he's dead set on screwing us.

Thanks in advance for any advice.

[SW MI Planner]

The attorney didn't say we have a weak case, but she did not sound as optimistic as the commissioner, and said the board can go either way, despite the fact that there's nowhere else on our property where we could put a shed that would meet the standard 15/15/30 setback requirement. Thanks to this neighbor, we could be an additional $1,500 in the hole (in addition to the lumber and shed supplies) and have no shed. It's insane - I'm trying to find holes in our case and can't find any. We've done everything on the up-and-up, we've always been nice to this neighbor despite the fact that he's harassed us about other asinine things too (our large garden, our birdfeeders, etc.), yet he's dead set on screwing us.

Thanks in advance for any advice.

I'm not sure about MA enabling statutes, but typically there are standards for approval, and your request needs to meet all of them in order to be approved. You're best bet is to make sure your application fully outlines how your request meets all of the standards. If your request meets all the standards it should be approved, regardless of how many people come to speak in opposition. On the flip side, if your request doesn't meet all the standards, it shouldn't be approved regardless of how many people come out in support.

In MI these are that there has to practical difficulty in complying with the ordinance due to a unique or extraordinary situation pertaining to the property itself (grade, natural features, etc.), it can't be self created, won't be detrimental to the property or surrounding properties. Cost is not a factor. So here, if you can move the shed two feet (even though it costs the additional money) you wouldn't be likely to receive a variance.

Good luck!

[paiste13]

We don't require a survey but say the applicant must be truthful with all of his "numbers" on the application. If it turns out he builds a building but had incorrect information on the application we make him change the building. I am surprised Framingham makes you stay 15 feet back for accessory buildings like sheds and garages - that seems like a huge setback for a garden shed. We require three feet for all of those buildings. Good luck.

[Random Traffic Guy]

Thank you for giving the daily boost to my "must move to unincorporated land" effort.

Seriously, it sounds like you are doing everything right. The one thing I might add is to try to contact the zoning board members (if allowed) and meet with them individually, preferably on the site.

[DetroitPlanner]

Maybe this can be solved simply by instead of replacing the shed, fixing it? Is it too far gone?

[surfinboy]

Thanks for the responses. We've already torn down the old shed - it was a 50-year-old prefabricated shed that was falling apart. The floor was about to cave in, the wooden foundation walls were rotting, and there were groundhogs living underneath. It was a true eyesore.

[Random Traffic Guy]

Maybe this can be solved simply by instead of replacing the shed, fixing it? Is it too far gone?

Heheh. My dad "repaired" his old fence 1/3 at a time to keep from having to upgrade it due to new fence requirements from the city (backing onto a thoroughfare).

OP, I would also suggest a window or vent modification facing the neighbor, along the lines of this example.

[Random Traffic Guy]

OP, I would also suggest a window or vent modification facing the neighbor, along the lines of this example.

Bad link, sorry (why is the edit disabled after a time?). Put it on my own photobucket, very mild NSFW: Vent cover finger

[ColoGI]

The one thing I might add is to try to contact the zoning board members (if allowed) and meet with them individually, preferably on the site.

Too bad the OP can't beat the cr*p out of this little Napoleon while telling him what a weak little man he is. But seriously, absent that, this ^. And the finger vent must be built. :o\

[Cardinal]

Heheh. My dad "repaired" his old fence 1/3 at a time to keep from having to upgrade it due to new fence requirements from the city (backing onto a thoroughfare).

OP, I would also suggest a window or vent modification facing the neighbor, along the lines of this example.

This would have been my suggestion. Seriously. But otherwise you have followed the correct steps, and don't be too discouraged by your attorney. Of course they are not going to give you any guarantees. The fact that the inspector thinks you will be okay is promising - they have likely seen how the commission responds to many similar requests.

It might be helpful to try to get the neighbor to state his objections in the public hearing. They are most likely baseless, and will not help to support his objection. You can also offer to address them - making you the accommodating "good guy". Approach it by saying "We want to replace our old, decrepit shed with an attractive new one with the same floor area, only XX inches taller. We will also move the existing pad so that the new shed will be two feet further from the property line, in keeping with the zoning requirement. We feel this is an improvement for us and for any neighbor who has looked on the old shed. If our neighbor would like to tell us why he objects, maybe we can find some practical solutions to his concerns."

[surfinboy]

Hi everyone, an update: last night we had our hearing before the appellate zoning board. The neighbor was there with his daughter-attorney and we both pleaded our case. She pled the case that the board should make us place the shed the standard 15 feet from the edge of the property and not grant a special permit. (This would look ridiculous and cut out the use of the main part of our lawn.) The original shed was 8' high - the new shed is 12' high - short enough to grant a special permit, but the board indicated this isn't an automatic permit - only that the town CAN grant a special permit if it feels it's not detrimental. And the board did think the height may pose an issue. It was very contentious and the board did not reach a decision - instead they planned on doing a site visit, and a follow-up hearing and decision is planned for next month.

In the meantime the board recommended we talk with the neighbor and the daughter-attorney to try to reach a compromise. I'm fairly certain at this hearing the daughter is going to argue once again for a 15' setback with no special permit granted. However, the board seemed to indicate that there may be a case for a special permit here. I'm dreading this talk with the bullying neighbor and his stuck-up daughter, but I have no choice. I'm looking for advice on how to negotiate this. My instinct is to propose to her that we move the shed forward 2 feet and lower the pitch of the roof by 2 feet. (In reality I'd be grudgingly willing to lower it by 4 feet, which would suck, but I could have this as a card in my back pocket if she doesn't agree to the initial offer.) I doubt she'll be open to any of this, but it is a peace offering on my part, and we have another abutting neighbor who's willing to testify that he objects to the shed being moved in 15 feet. (In reality, he doesn't care where we put the shed, but he's willing to play along with us to help us.) Any thoughts on how I should navigate this? Should I meet at their house, or offer a neutral location?

[surfinboy]

Hi folks, would anyone care to weigh in on this? Thanks!

[mendelman]

I'm going to be flippant and probably not helpful, but this is too much energy spent over a simple shed. The longer I'm in this profession the more I see the pointlessness of regulations such as these.

We miss the point in so many ways.

[paiste13]

The longer I'm in this profession the more I see the pointlessness of regulations such as these.

We miss the point in so many ways.

This is what people of planning/zoning and this is why I would recommend my child find a different career path than his father.

[btrage]

I'm going to be flippant and probably not helpful, but this is too much energy spent over a simple shed. The longer I'm in this profession the more I see the pointlessness of regulations such as these.

We miss the point in so many ways.

I agree 100%.

[mike gurnee]

Most cases that make it to court is just as crazy.
I find the code requirements silly and would change them. Regardless, the board is supposed to uphold the code: not get the two neighbors to "talk it over". I would not go to the complaining neighbor under any circumstances.

[mendelman]

Most cases that make it to court is just as crazy.
I find the code requirements silly and would change them. Regardless, the board is supposed to uphold the code: not get the two neighbors to "talk it over". I would not go to the complaining neighbor under any circumstances.

And that is very good input, mike.

[OfficialPlanner]

I'm going to be flippant and probably not helpful, but this is too much energy spent over a simple shed. The longer I'm in this profession the more I see the pointlessness of regulations such as these.

We miss the point in so many ways.

Agreed! All too often there is intense focus on the trivial while the big picture is missed. The zoning board should just use their common sense and grant the variance.