I live in a neighborhood of mostly single-level homes. My neighbor wants to add a second story to her house. I am concerned that this addition will change the character of my neighborhood and that the new second story will shade my backyard. The shade may kill my garden and lawn. How do I stop my neighbor from building a second story addition?
Since this type of development can proceed quickly, your best bet is to promptly determine the status of any development application, including applications for building and land use permits, filed by your neighbor. To determine whether applications have been filed, and if so, the status of those applications, contact both your local planning department and building department.
When you do, have your neighbor’s address available, since the application may not be under her name.
It is possible that your neighbor will need to obtain both a land use permit and a building permit. Land use permits are often required when owners seek to change the use of their land (for example, from single-family residential to multifamily), or construct a new commercial or multifamily project on their property. You can typically determine whether a land use permit is necessary by reviewing the local zoning ordinance. If the ordinance is unclear, you can seek clarification from the local planning department or a land use attorney.
Regardless of whether a land use permit is required or not, your neighbor will certainly need to obtain a building permit. Building permits are required to ensure public health, safety, and general welfare. A landowner must ordinarily obtain a building permit in order to construct, enlarge, convert, add onto, or demolish a structure. And the owner must obtain the permit before, not after, beginning construction.
As part of the building permit application process, city or county staff will review the application by for compliance with not only the building code, but also the zoning ordinance (sometimes called a “development code”). Others who might review the application include the road master, fire marshal, local law enforcement agency, and the city or county engineer.
If the planned addition is prohibited by the building code or zoning ordinance (or any other code or ordinance), the permit may be denied. In some situations, the applicant may be able to apply for a “variance,” which allows the development to proceed despite some inconsistencies with a code or ordinance.
Whether a proposed second story addition is in compliance with all codes and ordinances will require a detailed review of both the proposed addition and applicable codes and ordinances. Some common issues, though, that a person adding on to a house may encounter include:
“The purpose of this solar access provision is to provide as much solar access as feasible during the winter solar heating hours to existing or potential buildings by requiring all new structures to be constructed as far south on their lots as is necessary and feasible.”
If your local zoning ordinance includes such a provision, make sure the proposed second story addition complies with the stated rule. Typically, there are exceptions written into solar access provisions to allow development in cases where strict compliance with the provision would make development impractical. So again, this provision may not stop development of the second story, but by making sure the solar access provision is enforced to the extent possible, you can minimize the impact of the addition.
In addition to building code and zoning ordinance provisions that may provide arguments for why your neighbor’s second story addition should not be approved, you may also want to look into whether any private agreements limit development. For example, is your property located in a subdivision with Covenants, Conditions, and Restrictions (“CC&Rs”) that prohibit second stories? Be sure to review any CC&Rs that apply in your neighborhood.
In addition to CC&Rs, other private agreements may limit development on your neighbor’s property. For example, a previous owner of your house may have, after agreement with the owner of your neighbor’s property, created and recorded an easement that protects your right to sunlight or a view, by limiting development on your neighbor’s property. If you are unaware of any such agreement, you may need to go down to the County Clerk or County Recorder to search the public records. A title company or real estate attorney can help you with this type of search.
A real estate or land use attorney should be able to help you work through the possible arguments you may have and help you properly challenge your neighbor’s second story addition. You should move promptly to protect your rights. Missing a deadline may bar you from being able to challenge the addition, even if the addition will violate the law.