Court Rejects Resident’s Attempt to Circumvent Permit Requirement With Adverse Possession Claim

Defendant began construction of a swimming pool without permit approval. When the code enforcement officer notified Defendant of the violation, Defendant filed a permit application. The application was rejected because the pool failed to comply with the applicable set back requirements, but Defendant continued to build the pool regardless.

it was later determined that the pool encroached on Defendant’s neighbor’s property. Defendant eventually applied for an area variance, but the request was denied and Defendant did not appeal or remove the encroachment. Instead, Defendant brought an adverse possession action and sought to have the enforcement stayed. On appeal, the appellate court agreed with the trial court’s decision not to hold the enforcement action in abeyance, noting that even if Defendant were to be successful with the adverse possession claim, she would still need the required variance. Still, you have to give her credit for creative thinking.

The case was Town of Chatham v Smith, 119 A.D. 3d 1282 (3 Dept. 7/24/2014) and the decision can be found at:

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