That house is too damn high!

November 4, 2012 12:06 AM

When a builder builds a new home way too tall and City Hall lets them get away with it, what happens next?

I can believe that in the 2000-2006 real-estate boom, as City Hall got quite excited about being able to charge more and more and more in Property Taxes, that residential building laws got changed and loosened. But the house being built next door is literally twice as tall as mine, and will block all of my morning sunlight. I can't afford a lawyer or a lawsuit, but it sure seems that they have stolen something from me --- morning sunlight!! What can I do if City Hall has made a mistake in letting them build so high?

posted by shipbreaker to law & government (24 answers total)

Morning sunlight is usually not a right and your question is pretty much unanswerable without knowing where you live.
posted by MaryDellamorte at 12:19 AM on November 4, 2012 [3 favorites]

Well, it depends entirely on your local land use/zoning/design laws. In many jurisdictions, what I being built is completely legal. In other jurisdictions, it may be that what is bing built does not conform, but has been granted a "variance". Variance in this case has a very specific meaning and here and there likely would have been Public Notice and a formal hearing to grant the variance.

In both these cases you probably have no recourse. Sorry.

If they are building without a permit, the city will be interested and an injunction may be brought to halt construction while the legality of the situation is worked out. In extreme cases, sometimes the structure is brought down, you know demolished.

Most likely, you are just out of luck. Next time buy in a locally designated design overlay district that appeals to you, historic or otherwise.
posted by stormygrey at 12:19 AM on November 4, 2012 [1 favorite]

If it doesn't actually violate code, your only option is to appeal to your future neighbors directly, although it's unthinkable that someone would scrap a second floor mid-construction just to be neighborly.

You don't have a right to morning sunlight unless you live in one of the very very few cities that protects a homeowner's view.
posted by acidic at 12:22 AM on November 4, 2012

First thing everyone is going ask is where are you?

The first thing everyone is going to say is talk to an attorney, and that's not bad advice.

However, you can do some of this research on your own. Your town, county and state's building codes will almost certainly be online. Within them, you should find what the maximum height of a residential structure can be, though you'll need to suss out certain details, like whether you're in unincorporated space, or incorporated space, etc.

Once you know that (for example, in my county, residential structures cannot be higher than 35' from the ground to the peak of the roof), you can do a fairly accurate guesstimate. If it seems likely that they're at or over the limit, you call the building inspector and have them come out.

Whether your town or county is willing to do anything about it, assuming a violation, without additional pressure, is a different question.
posted by maxwelton at 12:22 AM on November 4, 2012 [1 favorite]

You didn't mention your city.
We're seeing this problem in Seattle. Here is a local blog article. The comments section has some good links and accounts of grassroots organizing.
Good luck.
posted by valannc at 12:23 AM on November 4, 2012

As stormygrey mentions, anything is possible with a variance. Most counties these days have plat maps showing active permits and any variances attached to them, so you should be able to look at that as well.

But as others have mentioned, as long as they're within code and have a permit, you're out of luck. (We bought some land once which the neighbors had long grown accustomed to it being "theirs" and boy was it fun when plans for what we wanted to do came out without, as they put it "checking to see if it was OK with us!")
posted by maxwelton at 12:26 AM on November 4, 2012 [1 favorite]

You have a few questions, which can probably get answered fairly easily in the planning/permit office.

A) Did the builder follow the permit and planning processes -- that is, do the planning/permit people know what was built and did what get built mostly match those permits?

B) Does the building meet code requirements at the time of construction? (Not code ten years ago, and not code today, but code at the time it was actually built.)

C) If not, was there a variance given, or some other legal work-around?

Beyond those basic questions (which may actually not be simple to answer, because these things can be complex), you are in "talk to a local land use attorney" territory. Where I live, I know that I could block my neighbor's morning sunlight and there isn't shit they could do about it as long as I followed all the proper permitting processes (none of which require notification of the neighbors) and am under the maximum height by at least a fraction of an inch. Your locale may have very different rules, and random internet speculation isn't going to answer your question.
posted by Forktine at 12:30 AM on November 4, 2012

What can I do if City Hall has made a mistake in letting them build so high?

first of all, without any further evidence from you, this sounds like it's only an assumption you have made based on nothing more than your feeling denied your access to morning light. as others have mentioned, you should first do the research to determine if this is, in fact, a correct assumption. if it is, then you will need to talk to an attorney about your options.
posted by violetk at 12:35 AM on November 4, 2012 [1 favorite]

Their house is 31.3 feet high and mine is about 18. It's a drag. They are probably 0.2 inches under the absolute maximum limit, I'll find out at City Hall on Monday, or by looking at the website. Another question is just how soon my property taxes will mystically go Up again, because of this new construction nearby.
posted by shipbreaker at 12:49 AM on November 4, 2012

You might have a state law that gives you the right to not have your rooftop solar panels blocked.
posted by anon4now at 1:08 AM on November 4, 2012 [1 favorite]

also, forgot to say before: sorry, it does totally suck, especially if it turns out they are doing it legally.
posted by violetk at 1:12 AM on November 4, 2012

In Berkeley, in the hills where a view can easily add tens of thousands of dollars to a house's sale price, projects get killed or modified because of line of sight and height issues all the time, even big budget ones like schools.

I heard of one stalled home construction project where a very knowledgeable resident has worn out two developers. More normally though, plenty of homes here have 'negotiated' rooflines that don't block their uphill neighbor's view.
posted by zippy at 1:30 AM on November 4, 2012

Oh, also, builders in the Berkeley Hills commonly build a mockup of the roofline on new construction and remodels so neighbors have a chance to see what's getting blocked and complain to the city before proper construction begins.
posted by zippy at 1:33 AM on November 4, 2012

First things to check: does the builder even HAVE a building permit? And if so, what precisely does that permit permit them to build? What are the exact building heights in your neighborhood (not somewhere else in town: and yes, it can vary from area to area), and of course what it the exact height of this new construction, and where it height supposed to be measured from (curbside, sea level, from some topological point?) Do they have a variance to build higher than the local limits? You say its 31.3 feet, but how did you arrive at that figure?

If by chance they don't have a permit or they have indeed exceeded the one they do have, then notify zoning enforcement: don't just assume some monolithic big bad "City Hall" is full of evil stereotypical Corrupt Civil Servants(tm)!

(And for what it's worth, I can show you both a local house that had to chop off an entire floor several years ago when they were building above the height limit, plus a small office building that had to lop off the front few feet when they tried building too close to the road --- in both cases the permits themselves were legal, but the builders tried to get sneaky and exceed those permits during construction; both builders claimed reducing the half-built buildings would be 'a hardship', but the city basically said tear it down or WE will. Yes, the system works.)
posted by easily confused at 2:17 AM on November 4, 2012

The simplest approach is to find the building permit, see who signed it, and then talk to that person, if you can do it. If there are variances from the zoning laws, that should be documented.

Your first posting says they built "way too tall" but then the update says it may be very slightly under the "absolute maximum limit," whatever that might mean. You need to be familiar with the specific laws and ordinances before you think of challenging a decision. That is what a lawyer would do.
posted by yclipse at 4:08 AM on November 4, 2012

Can't remember when, but I think it was the early 90's, an atrocious private residence was built on Sunset Mountain in Asheville, NC, where I was living at the time. It was just garish, and was built with several zoning violations, including height. I think height did it in, but the locals in the immediate vicinity organized, sued, and the residence was leveled. (It was a half-million dollar shed back when that would buy a lot of square footage.) Big win for law and order and makes me smile whenever I think of it. (You really had to see it. Owners were real creeps, too.) I wish you similar results.
posted by FauxScot at 5:36 AM on November 4, 2012 [1 favorite]

You say that the neighbor's house is "too tall", but there is no indication that the height is in violation of the building codes.

As others have mentioned, there is no common law right to sunlight in the United States. The big case on this in the US is from my state, Fontainebleau Hotel Corp. In that case, one beach hotel sued another to prevent it from building a rather large addition that would block the afternoon sunlight on its parcel. The appellate court declined to stop the construction because there is no common law right to the free flow of light or air across real property.

So, as some others have mentioned, you will need to see if there is a solar access law in your state, county, or city. However, the house is already being built, so there may be an issue of economic waste. Also, do you have solar panels installed?

In the end, if you can't afford a lawyer, you can't afford to do very much. A brief review of some cases in jurisdictions with solar access laws indicate that things do not often go well for the party seeking to protect their access to sunlight. You may not even have the right to bring suit. In some of these cases, that authority lies with the state alone.
posted by Tanizaki at 6:03 AM on November 4, 2012

Builders in ny are able to buy "air rights" and block their neighbor's light. This happened to the people with east facing windows in my building due to the one57 obscenity.
posted by brujita at 7:05 AM on November 4, 2012

I think. they were bought from the building owner, not from individual condo owners.
posted by brujita at 7:06 AM on November 4, 2012

In the city I grew up on there, in fact, ARE rules about shadows cast by new construction. So be sure to check the rules for wording like that and not just height rules. They wouldn't be able to build a house like that if it cast a shadow on their neighbor's house.
posted by magnetsphere at 7:09 AM on November 4, 2012

There are a few ways this could have happened, listed in order of decreasing probability:

1) The height limit is higher than you think it is, or interpreted differently than you think. Generally, in residential areas in my town, the height limit is 30' (plus some bonus height if you live on a slope), even in areas that are predominantly single-story houses, so someone could quite easily come in and build a house that's twice the size of any of its neighbors.

2) The building was built slightly differently than what the approved plans said, and nobody caught it, or bothered to check. This could account for a slight difference in height, like maybe a foot, where the building mostly looks like what the plans show, but is built just slightly off.

3) The house was built without a permit, or went beyond what the permitted drawings show illegally, possibly by building after "final" inspection.

In any case, there's really no need to call a land-use attorney right of the bat. Your first call should be to the building or planning department for your area and check what the height limit is in your area. I suspect your investigation will end at this point. After that point, you may want to get an attorney if you're not really good at reading plans or code language, but an architect would be able to do the same things - if the building is permitted and does seem to exceed the height limit, there may be code exceptions or variances that allow the building to do so. If the building is truly in violation of the building code, you're still not really going to need a lawyer because you're not the aggrieved party in this case - the building department is, and they'll issue orders to tear down the structure and/or fine the owner/builder. The only thing an attorney will help you out with in any of this is interpreting the drawings and codes, and they're a little expensive unless you're getting into really really fine-grain pushing the envelope code stuff, which is very unlikely unless you live in a wealthy area (see Mitt Romney and his car elevator).
posted by LionIndex at 8:22 AM on November 4, 2012

Your city code enforcement office can give you a lot of information. If they seem to busy by phone, go visit.
posted by theora55 at 10:25 AM on November 4, 2012 [1 favorite]

Another question is just how soon my property taxes will mystically go Up again, because of this new construction nearby.

The neighbors' decision to invest in the property may reflect your neighborhood's desirability, which in turn affects your assessed value, but the fact that their house is now more valuable won't affect it. In theory you could argue that your loss of sunlight has negatively affected your home's market value, but that will be difficult to prove or quantify. Here's property taxes 101 (agnostic as to state and so lacking nuance)...

Property taxes reflect both the assessed value of your home and the millage rates charged by your local jurisdiction and other taxing districts applicable to your state/community (e.g., county, school, etc.). Assessors interpret how real estate market activity applies to your property’s unique characteristics and what that portends for value. The assessors use various appraisal techniques to arrive at an estimate of value, including researching what price comparable properties sold in arm’s length transactions (e.g., no special friends and family deals) achieved recently, analyzing existing and potential rental income streams and determining what it would cost to re-build the improvements. Most years the assessors do not actually visit the property, although they will conduct larger scale revaluations periodically. In practice, most properties don’t change much from year to year in the factors that contribute most to value: lot size, home size, etc. However, assessors are notified when anyone receives a building or demolition permit so they can make appropriate adjustments.

The assessor’s work results in a property’s assessed valuation, which is the vehicle by which taxing jurisdictions—the local municipality, the school district, the county, occasional special assessment districts—apportion the cost of the services they provide among the owners of taxable property. The assessments are compiled on the assessment roll, which is open to the public for review. For any given jurisdiction, the property tax base represents the sum of all assessments on taxable real estate within its borders (less any exemptions), as adjusted as described below.

Meanwhile, back at local government offices, elected and appointed officials are assembling the annual budget. After all of the wrangling—different versions, a review of mandated costs, impassioned pleas from stakeholders, promises made by elected officials vis-à-vis projects or budget targets, etc.—the process leads to a vote and, eventually, an approved budget. One aspect that can receive consideration during this process concerns the impact of the proposed budget on the proposed property tax levy and, hence, the property tax rate. But what determine the levy?

While local governments (and other jurisdictions) receive revenues through many streams (e.g., sales taxes, user fees, state and federal subventions, etc.), the property tax is a significant source. After projecting what those other revenue streams will contribute, each jurisdiction must identify a known portion of its budget to be funded through property taxes. The levy is simply the amount of revenue the jurisdiction wishes to raise through property taxes in any given year. The property tax rate is calculated by dividing the levy by the taxable property tax base. It is usually often expressed in terms of dollars per thousand. The property taxes associated with any given real estate parcel is calculated by multiplying the assessed value by the tax rate. Tax bills show the tax rates associated with each jurisdiction that provides services to that parcel.

Consequently, if the property tax base declines, the property tax rate will increase even if the levy stays the same. If the levy rises and the property tax base declines, the property tax rate will increase even more; in this way your tax bill can increase even though your property value has diminished due to the real estate market and other factors beyond your control. On the other hand, if the levy stays the same and the tax base increases, the property tax rate will fall.

But back to you and your property assessment. Once your next assessment comes in, you may wish to make a sound decision about whether to use the appeals process to pursue a reduction. First, divide your property’s assessed value by its market value. How does that proportion—the assessment ratio—compare to your community’s stated target assessment level (the target percentage of market value)? If it’s significantly higher than 100 percent, you may want to consider pursuing a reduction. You should be prepared to demonstrate why you feel your assessment doesn’t reflect market value; if you recently purchased the property, the price you paid offers excellent evidence of market value. Similarly, recent sales of other comparable properties can be persuasive as well. If you commissioned a professionally prepared appraisal, perhaps when you refinanced your property, that too would offer a reliable estimate of market value. Maintain a friendly, professional demeanor and come armed with information to increase your probability of success.

TL;DR The new house next door doesn't have much to do with your property taxes. If you think your next assessment is too high and want to protest it, you'll be better off if you can make a case that doesn't rely on your loss of sunlight.
posted by carmicha at 10:32 AM on November 4, 2012 [1 favorite]

shipbreaker writes "Their house is 31.3 feet high and mine is about 18. It's a drag. They are probably 0.2 inches under the absolute maximum limit, I'll find out at City Hall on Monday, or by looking at the website. Another question is just how soon my property taxes will mystically go Up again, because of this new construction nearby."

Without knowing your specific jurisdiction it is unlikely if your above statement is true that there is anything you can do. The vast majority of residential neighbourhoods in the US do not have restrictions on casting shadows besides crude tools like maximum heights. Additionally most restrictions on height in single family zonings aren't so restrictive that they wouldn't permit two or three story buildings.

Finally even if your neighbour's house is some small amount over the limit your jurisdiction is only likely to make your neighbour file a post facto variance and pay a penalty.
posted by Mitheral at 6:06 PM on November 4, 2012