Following the commencement of construction of a swimming pool without permit approval, the code enforcement officer notified the defendant of the need for a permit. Upon receipt of the permit application, the defendant was notified that the location of the pool did not comply with the applicable set back requirements. Despite this, the defendant continued to build the pool and it was later determined that it encroached on her neighbor’s property. Although the defendant eventually applied for an area variance, the request was denied and defendant did not appeal nor did she remove the encroachment. Rather, defendant brought an adverse possession action and sought to have the enforcement stayed. The appellate court agreed with the court below that the enforcement action would not be held in abeyance and noted that even if she were to be successful with the adverse possession claim, she would still need the required variance.
Town of Chatham v Smith, 119 A.D. 3d 1282 (3 Dept. 7/24/2014)
The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2014/518451.pdf