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My neighbor built a deck 1 ft from my fence, with electrical, with his sitting area above fence

Fresno, CA |

I have no privacy in my backyard when he's standing or sitting on it. He also built a lamp post on it with electrical wiring. When he turns the lamp post on it shines brightly into my backyard. Can a deck be built above a fence with electrical?

Attorney Answers 4

Posted

Tough question. It may depend on the local building codes as far as allowable fence height goes. There's no inherent right to "privacy" or a view, so if the topography lent itself to this and the deck is at a legal height (projecting from a second story?) he might be able to get away with it.

You can perhaps seek a variance from the back fence standard to erect a higher fence that would block his view into your back yard. You may also want to look into erecting a spotlight on a pole that would shine back onto his deck in an annoying way if the local zoning codes or inspectors weren't of any assistance and work some kind of compromise.

You could also consult an attorney as to whether the light could be found to be a nuisance. In commercial situations, zoning site plan review often requires fixtures to have something called "sharp cut offs" which are flaps which extend from the light fixture directing light downward and keeping glare from going offsite.

Noise from the deck also might be categorized in a civil action as a "nuisance", an unreasonable use of one's property that deprives neighbors of the "quiet enjoyment" of their premises, which was the primary control of land use before zoning and similar land use permits evolved. The classic example is a pig farm, but your neighbor's deck might be similarly be deemed unreasonable in a nuisance suit.

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Jack Richard Lebowitz

Jack Richard Lebowitz

Posted

On second thought, I'm in agreement with others who have suggested that there's usually a setback on all sides of a residential lot, usually 20 feet for a rear yard setback, in which no building or structure other than a fence can be constructed. Unless this fellow got an area variance from the zoning board of appeals, he would have to comply with setbacks and usually (1) he'd have to have a good reason why such setbacks would be waived, (2) the board would consider the adverse effect on neighbors and the neighborhood, and (3) most importantly, you and any other adjoining properties within (usually) a few hundred feet of any part of the neighbor's lot would have received a letter from the zoning board before their hearing and decision giving you prior notice of the request and a chance to view the application and plans on file at the planning department. Then you would have showed up at the hearing raising holy hell and if the board somehow ignored your complaints, you could seek review of the ZBA's decision in court within a short time window prior to the time of the structure or building's construction.

Posted

I agree with Mr. Lebowitz. You need to check with your local building and zoning departments. I have trouble believingthat there isn't a setback requirement for structures that would be more than one foot from the fence, but requirements like that very from Jurisdiction to jurisdiction. You should also check to see if there are any CC&Rs applicable to the property. Even if there isn't an HOA, there are often CC&Rs between properties that might also provide you a vehicle to deal with the problem... Otherwise, a private nuisance cause of action may exist, but you'll need to consult with an attorney in your area to discuss how to proceed...

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Posted

Very unlikely your local code allows him to build so close to your property. Check the Frenso municipal code if you are in the city or the County code if you are in the County. He would have likely had to get permits, and in any event, it sounds like you may have an action for nuisance. Check your codes, call the community development department. They may be able to have the deck abated if it is in violation. If not, you may need to talk to a lawyer about the nuisance issue. I assume you have discussed the lighting problem with the neighbor? Maybe you can reach a compromise about use of the lights.

This response is not to be construed as establishing an attorney-client relationship, and provides general information on the subject at hand only.

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Posted

Sorry to hear of your privacy troubles.
Here in Sacramento, the setback required for decks and other similar structures is 2.5 feet. For habitable structures like homes, the setback is 5 feet. I would agree with other attorneys here, consult your local building department to verify setbacks.
Local building departments also enforce height restrictions. You can inquire regarding the height limitations for the deck as well.
Most concerning, as electrical is involved in close proximity to your property -whether permits were pulled for the construction of the structure. Permits are important -as you probably know- they involve the building department process of checking over plans for safety and involve an inspection by a building inspector. The building department can inform you if a permit was pulled for the deck construction.

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