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If a building is built as told by the code enforcer to all codes

Central Square, NY |

If a building is built and the code enforcer said no site plan review was needed and that only pertains to commercial buildings but the town land development law dictates all buildings need a site plan review and no where does it say in the land development law that this only pertains to commercial buildings and when the code enforcer was asked where in the laws (codes) does it say that unless its commercial building a site plan review was not needed he said "well it dosent say that in the land development law but thats what it means and only pertains to commercial buildings", not that the town board oked it or even knew about this building just that he said a site plan is not needed no mater what the codes say in the town land development law ,

Is this legal for the code enforcer to dictate what he thinks the codes means -are- or should be- or are the written laws in the town land development laws the law except with variances from the board not the code enforcers interpretations of it? I dont understand what this smollens is refering to. my first time posting on this site and this is the answer I get ?

Attorney Answers 3

Posted

Dear is it legal?

This is similar to other questions you have posted regarding a purported illegal structure in Oswego County, Town of Constantia (Bernhards Bay, New York).

The answers here cannot satisfy you. Hire an attorney nearby who might have a chance to help you.

Good luck.

The answer provided to you is in the nature of general information. The general proposition being that you should try to avoid a bad outcome if you can.

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6 comments

Asker

Posted

I don't understand what this Smollens is referring to. My first time posting on this site and this is the answer I get ???????

Steven Warren Smollens

Steven Warren Smollens

Posted

OK. There have been several posts by the builder and a neighbor over a two week period about a large structure built Bernhards Bay, New York. The structure is described as a forty foot tall pole barn. One neighbor complained the builder drained an adjacent wetland and that the structure stands three feet higher than his house, blocks his water view and generally appears to be a structure not allowed to be built in a residential neighborhood in Constantia, New York. The other poster was the builder whose first inquiry gave the sense nothing had been built, no plans were filed and asked whether there was a zoning law in Costantia. Between those two posters, alternating using addresses in Costantia and Bernhards Bay, New York, the attorneys answering the questions came to conclude that the structure complained about and the structure seemingly not built were the same. Over time, each poster was referred back to the zoning law (the development plan) the code enforcement office and to other citations in Oswego County, and urged to hire professional expertise nearby, as no answering attorney in this forum could extend legal advice whether the planned structure would be legal or whether the claimed built structure was illegal and if already built what to do about it. So. If you have not been involved in this discussion, I appreciate your being upset. So let's begin again. Is this question related to this 40 foot tall pole barn near the water adjacent to a filled in wetland, or does this relate to another structure in Costantia, New York? I'm available to reply. Thank you.

Steven Warren Smollens

Steven Warren Smollens

Posted

See for example the links offered in the earlier answers to the other questions: http://townconstantia.org/forms/building_permit.pdf http://townconstantia.org/documents/200905_land_dev_law.pdf http://townconstantia.org/codes.shtml Good luck.

Asker

Posted

This is not related to any other post on this site. I am in Central Square and my question (what is stated) is not related to any other post on this site.

Steven Warren Smollens

Steven Warren Smollens

Posted

OK. A Code Enforcement Officer operates within the boundary of the existing development plan of the Town of Hastings. http://www.co.oswego.ny.us/planning/zoning%20maps/hastings%20zoning%20text.pdf An Officer acting outside the bounds of the plan is acting in excess of his authority, or without lawful authority at all. Actions taken by an officer invested with the power to enforce the law that are outside the law may be challenged. See section 1645, page 56. If the Code Enforcement Officer his actions are not bound by the law as "he said a site plan is not needed no mater what the codes say in the town land development law" then a court may very well find a way to deal with this person, and agree with you he is not free to make up the law and disregard the written development law. Good luck.

Steven Warren Smollens

Steven Warren Smollens

Posted

You may consult with a local attorney whether an appeal is initially required to the Zoning Board of Appeals (Section 1650). If so, the ZBA is the first level of appeal. If the ZBA agrees with the Code Enforcement Officer, an appeal to the Supreme Court, Oswego County (http://www.nycourts.gov/courts/5jd/oswego/#Supreme) by a proceeding seeking judicial review as provided in New York Civil Practice Laws and Rules, Article 78. See, ( http://www.lawny.org/index.php/housing-self-help-141/housing-and-eviction-self-help-142/192-article-78-proceedings-how-to-appeal-an-agency-decision ) Good luck.

Posted

Unfortunately, you need more information to know the answer. It may be that the person empowered by the town to interpret their law made this determination. If that is the case, the code enforcer is probably right. However, depending on how the law is written, the person interpreting the law may have gone beyond their authority. And, although it is rare, sometimes staff members determine the way their law should be written and enforce that instead of the law they are stuck with. This they are no allowed to do.
I would investigate the matter further. Ask if there is an official interpretation of the provisions requiring the site plans. Also, you should contact an attorney in your area that practices in the area of local government law. They can probably help you get a fast, easy answer. Hope this helps.

This response does not constitute the giving of legal advice, establish an attorney-client relationship or a consultation. If you need legal advice, please seek out a lawyer for consultation as soon as possible as there may be statute of limitations issues that could bar your claims if they are not timely brought.

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Posted

You may have a "political dispute" rather than a true legal dispute. You question suggests that you are unhappy with the enforcement of the law. This is generally an executive branch responsibility. The executive branch is elected and if it is not doing its job properly then that failure needs to be addressed in the next election. Often the judicial branch will refuse to become involved in these type of situations because it raises questions. That said some jurisdictions recognize extraordinary writs, which are a procedural device to ask the Court to force the person responsible to comply with the requirements of the law.

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