Illegal Use & unpermitted addition.

[frozone]

It seems to me that some appraisers see an unpermitted addition as an illegal use and some do not. I have a specific definition from the zoning code of a particular municipality which reads...
"CURRENT LEGAL USE(S)
Any use/occupancy of a building, portion of a building, or a lot, which has been established by the proper completion of the appropriate use/occupancy permit and/or by the issuance of a certificate of occupancy or certificate of compliance, as appropriate, and which use has not become a discontinued nonconforming use, or which use has not been modified or replaced under a more current use/occupancy permit." My bold.

I completed an inspection on a 2unit property with a recently finished 3rd floor attic of which a portion of the attic floor has been removed and opened to the 2nd floor living room. Now...no permits on file with the city for the finished attic or any other work. Seems to me as though this would put the property outside the municipalities definition of the current legal use...or in other words..."illegal" use. Am I erroring in my line of thinking here?

 

[AnonApprsr]

You better confirm with the authority first before you say such a thing. Bring up the specific instance of events you have seen without mentioning the property address. If they say it's an illegal use per zoning, than there you go.

 

[Couch Potato]

It seems to me that some appraisers see an unpermitted addition as an illegal use and some do not. I have a specific definition from the zoning code of a particular municipality which reads...
"CURRENT LEGAL USE(S)
Any use/occupancy of a building, portion of a building, or a lot, which has been established by the proper completion of the appropriate use/occupancy permit and/or by the issuance of a certificate of occupancy or certificate of compliance, as appropriate, and which use has not become a discontinued nonconforming use, or which use has not been modified or replaced under a more current use/occupancy permit." My bold.

I completed an inspection on a 2unit property with a recently finished 3rd floor attic of which a portion of the attic floor has been removed and opened to the 2nd floor living room. Now...no permits on file with the city for the finished attic or any other work. Seems to me as though this would put the property outside the municipalities definition of the current legal use...or in other words..."illegal" use. Am I erroring in my line of thinking here?

Is that the entire zoning code, or is it just the definition of one of many terms with specific definitions in the zoning code? Sounds to me like a definition of "current legal use" as opposed to a simple "legal use" placed in the code to clarify the status of non-conforming properties. Obviously I can't tell for sure without the context, but that is the impression I get. In my experience zoning and permitting are handled by different departments, but I suppose they are combined in the less developed areas.

 

[frozone]

Is that the entire zoning code, or is it just the definition of one of many terms with specific definitions in the zoning code? Sounds to me like a definition of "current legal use" as opposed to a simple "legal use" placed in the code to clarify the status of non-conforming properties. Obviously I can't tell for sure without the context, but that is the impression I get. In my experience zoning and permitting are handled by different departments, but I suppose they are combined in the less developed areas.

Its one of the definitions within the Zoning Code. The actual code is extensive and in this caser the building department handles permits and zoning.
Although the definition is written in the Zoning Code and also in the Building Code, I could only fine the context to which it is refering in Building code which states :
Terms and conditions under which building permits and building permit fees are not required:

3.) Renovations to the interiors of existing one- and two-family dwellings which do not involve or affect:

Any current legal use or occupancy.

And thats it for context that I could find.

 

[Couch Potato]

Its one of the definitions within the Zoning Code. The actual code is extensive and in this caser the building department handles permits and zoning.
Although the definition is written in the Zoning Code and also in the Building Code, I could only fine the context to which it is refering in Building code which states :
Terms and conditions under which building permits and building permit fees are not required:

3.) Renovations to the interiors of existing one- and two-family dwellings which do not involve or affect:

Any current legal use or occupancy.

And thats it for context that I could find.

So it was being used as a two unit property, was renovated, and is still being used as a two unit property? :new_all_coholic:

 

[frozone]

So it was being used as a two unit property, was renovated, and is still being used as a two unit property? :new_all_coholic:

Correct. It was a 2 unit property with an unfinished attic, which was finished without permits. What Im trying to figure out is does the lack of permits violate the Zoning Code as defined by the definition of Current Legal Use within the Zoning Code. In this case the Zoning Code only defines Current Legal Use and does not address illegal use or "legal use" on its own. Following my logic ....
Finished attic without permits = deviation from current legal use, as defined in the Zoning Code = violation of zoning code = Illegal Zoning Compliance.

This is a neighborhood where finished attics can be non-conforming and many were finished in the 1940-50's and granfathered in. In that case I would check the Legal Nonconforming but in this case no such grandfathered use records are reported by the municipal records.
If its as simple as having a 2 family home within a 2 family zoning and checking legal for Zoning Compliance...then 2 family homes with grandfathered finished attics would also be checked legal (instead of legal nonconforming)...which I have always marked as legal nonconforming in the past.

I contacted the building/zoning department and am awaiting their response.

 

[Mike Kennedy]

Frozone, what is the governing Municipality?

 

[frozone]

Frozone, what is the governing Municipality?

Ciy of Buffalo

http://www.ecode360.com/?custId=BU1237

 

[Mike Kennedy]

Ciy of Buffalo

http://www.ecode360.com/?custId=BU1237

See Chapter 129 Certificates of Occupancy
see Ch 129-1

Certificate required.

A. No building hereafter erected shall be used or occupied in whole or in part until a certificate of occupancy shall have been issued by the Commissioner.


B. No building hereafter enlarged, extended or altered shall be occupied unless a certificate of occupancy shall have been issued by the Commissioner. This provision shall not apply to enlargements or extensions of one- and two-family dwellings where the original floor area is not increased by more than 25%. <<<<


C. No change shall be made in the nature of the occupancy or use of an existing building unless a certificate of occupancy authorizing such a change shall have been issued.

the questions then are -

1. did the "enlargement, extension, or alteration" occur AFTER implementation of this Ordinance Clause?
2. did finishing the attic increase the "original floor area" by more than 25%? If so, a supplemental C of O would have been required.

 

[Couch Potato]

So the use has not changed, zoning is not an issue, and the language indicates a permit was not likely required. Unless you can come up with some reason to think a permit was required, I don't see an issue. Some jurisdictions are very strict to the point you almost need a permit to change a light bulb, but most just want a permit when they think the work will easily allow them to increase the property taxes. Safety concerns is the other reason to require a permit. I have no way of knowing without having inspected the roof structure, but opening part of the attic to below could lessen the ability of a roof to handle snow loads depending on the design. For many construction styles it would have no effect, but for others it could dramatically change the load bearing capacity of the roof. I would think any marginally competent construction worker would allow for those issues in Buffalo so I don't see it as a major concern. I see the best course of action as describe everything thoroughly in your report and move on.