Resident told to hire a lawyer to get codes enforced

by roge
(rapid city SD)

Reviewed: June 12, 2024

Visitor Question: I have a neighbor who extended his driveway onto my property and a neighbor who built a pad for his boats, damaging my fence and causing water to pool in my back yard due to him changing the grade of his property.

I contacted zoning and code enforcement and was told I have to hire a lawyer to get the codes enforced.

Is this legal and what steps should I take to remedy these things without needlessly spending money I don't have on a lawyer I shouldn't need?

Editors Reply: I'm afraid we cannot give you a definite answer due to not knowing the particular requirements of your city's ordinances, the city ordinances adopting codes, and state law, but our observations may be useful to you.

Let's deal with the driveway first. Usually cities and other places that have adopted building codes have a procedure for obtaining a permit to build a driveway. This is for good reason, as the driveway will have a connection to a public (or private) street, and an inappropriate position could pose a traffic safety concern, or impact utilities, emergency vehicle access, fire hydrants, street trees, and the like.

Usually but not always, if a permit for a driveway is required, driveway extensions, whether making a driveway longer or wider, also will be covered.

In your case, if city ordinances require a permit for driveway extension, one of two things would apply. If the neighbor did not get a permit, the city should be requiring the neighbor to demolish the extension regardless of its location.

However, if the city did issue a permit, it made a big mistake if the application showed that the driveway would go over your property, but the city issued the permit anyway. In that case, you have to go political, meaning you have to talk to your elected representative on your equivalent of a city council, the mayor or equivalent, and also the head of the department that issues permits. Ask that the city require your neighbor to remove the driveway extension, with the city possibly helping with that cost because they made an obvious mistake.

If the application did not show the location of the driveway in relation to the property line, it is still the job of the city to ask more questions to establish that fact before they issue the permit. In this instance, our preliminary advice would be the same as above.

But let's say the city issued the permit correctly, in that the application showed a location of the extension not on your property, but the neighbor built it somewhere else. This is still the city's responsibility, because the building inspector's job is to make sure construction occurs according to the plans submitted.

In sum, if a permit is required, either the city can order demolition of the extension if no permit was received, or the city should shoulder the responsibility for making a mistake if a permit was granted. We agree with you that you should not have to hire an attorney to force removal of the encroachment on your property if a permit is required.

If there is no permit requirement for a driveway extension, you have a civil matter and need a real estate attorney.

Now let's deal with changes to the grade on your other neighbor's property. Again, in a well-run city, the pad for the boat would require a permit. If so, the city blundered by not considering the grading implications or not inspecting the work in progress to understand those implications.

If the city does not require a permit just to build a concrete pad, now you are in uncertain territory. In a good many states, one is not allowed to cause water to go onto a neighbor's property, so for this situation, consider state law as well. However, states are inconsistent about what the remedy is and even more inconsistent about how their enforcement mechanism works.

Essentially for both situations, you have to first be clear about whether a permit was required. If so, was it obtained? If so, was it built according to the plan submitted to the city? In any case, if a permit was issued and not followed, the city is at fault and should help you resolve the situation.

If no permit was required, you are left with negotiating with your neighbor (which we almost always recommend unless there has been a threat of physical violence) or with hiring an attorney as the code people in your jurisdiction suggested.

Civil suits may be possible in both instances, but before considering any such thing, which you can't afford anyway, do your homework about what the city should have done. It sounds like you may have done this already, but we were not completely clear on that point.

Suing the city is often fruitless, as many courts give governments a presumption of validity until shown otherwise. Suing your neighbors might get the desired action, but you have to consider the cost to getting along with the neighbor. In the examples we have known about personally, one neighbor or the other ends up moving.

The best use of an attorney in your situation is to ask them to write stern letters either to the property owner or the city, which is much less expensive than a lawsuit.

Incidentally, you can check to see if there is a legal aid organization in your city that may give you free or affordable help, or if the bar association can offer informal advice or a referral to an attorney who would not charge.

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