Stop construction on vacant land next door.

Visitor Question: The property next door to me was recently purchased by a developer who intends to build a house. The land is 2 sq ft short of being a buildable lot according to the Pinelands Commission which governs building in South Jersey Pinelands. They have said that if the city grants a variance they will allow it. I do not want a house built there because it is extremely close to my house, it is also a low lying area which will have to be built up and I do not want the runoff going in my yard. Presently the runoff goes into that vacant lot. I also have health issues of allergies and asthma which the building and occupation of this property will exacerbate. I have offered to purchase the property but the new owner says he doesn't want to sell. How do you recommend I fight this? What are my chances of prevailing? Thank you.

Editors Respond: Most of your question revolves around whether the new adjoining property owner will be able to obtain a variance to build on a lot that is 2 square feet too small. We have to tell you that the best-run municipalities and regional commissions will abide strictly by the terms of the applicable zoning ordinance or law. Typically zoning laws say that variances should be granted solely on the basis of whether there are unique physical characteristics of the property that make strict application of the zoning law difficult or impossible to achieve. It seems to us that the lack of two square feet certainly fits that criterion, especially if all the property that adjoins the lot in question either lies in rights-of-way for roads or in other legally platted lots.

If a zoning process is well-administered, public opinion about a variance application should not matter, including the opinions and preferences of adjacent property owners. The decision to grant the variance should be made only when physical constraints exist.

Now since you are the friendly person asking the question, we rush in to assure you that often a well-mannered protest from the public or interested neighbors will make a difference because the people on the board making the decision are ordinary folks like you, in many cases. (Sometimes the decision is made by a paid staff member because the action is considered administrative in nature.)

So strictly on the basis of the square footage issue, we doubt that you can stop the construction, but it's certainly worth a polite try on your part.

Moving to other aspects of the situation, you say that the house will be extremely close to your house. However, you don't mention whether a second variance would be required to waive the setback requirements of the zoning law. If so, we predict that you might have a better chance of stopping that than the variance about the minimum square footage. An exception would be the case of a lot that is so small or oddly shaped that only a grotesque house, such as one that is only 14 feet wide or something, could be built on it if the setback requirement is not changed. But in most cases you can argue that just because the developer wants to build a big house, that doesn't constitute a response to a unique hardship presented by the properties of the lot itself. So do make your best argument if a variance will be required. Depending on the facts, you might have a good chance. Again, your opinion shouldn't matter, but you can certainly remind the decision makers that the developer's wishes or even profits don't relate to the properties of the land.

However, if the setback that the developer proposes meets the zoning law requirements, and therefore no variance is required for that aspect of the situation, there is nothing you can do about the proposed home being too close to yours. Similarly, the owner of a property adjoining a vacant lot has no right to stop construction because of allergies, daytime sleeping, nervous reactions to noise, a need for extra parking for guests, or any of the other reasons that neighbors often bring up when they try to stop building next door. We sympathize with the annoyance and difficulties, but there are no legal rights associated with irritations due to nearby construction.

Now let's talk about the stormwater runoff. If you are watchful, you can probably prevent that from becoming a problem or maybe even improve the situation as it exists now. Most states have explicit laws and also legal precedents that prohibit property owners from allowing their drainage to go onto adjacent property. Stated the opposite way, builders and homeowners are required to handle their own stormwater drainage for proper conveyance into a public stormwater system, if one exists, or to grade their lot in such a way that they handle their own stormwater. Talk to your city about this particular problem. You may be dealing with different people than the ones who handle zoning variances. Often the health department, public works department, or even a utilities department or company that collects and treats stormwater will handle drainage complaints or even have a right to review building plans in advance to prevent drainage onto adjacent properties. Also be aware that during the construction process, you can talk to the building inspector(s) in the department that issues building permits, and they will investigate complaints about stormwater coming onto your property temporarily due to construction. In some cases it may be state or regional officials, rather than city staff members, that handle drainage complaints.

In every aspect of this situation that we have discussed, you will be more likely to have the result you want if you remain civil, polite, and respectful in your interactions with boards, commissions, staff members, inspectors, and neighbors. You don't show any indication of being otherwise, but this is just a gentle reminder that you are engaged in a persuasion process with human beings who may have some degree of discretion. We hope these observations are helpful.

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