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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 90269
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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I need help. i live in SD, small rural town. Have mayor & city

Customer Question

I need help. i live in SD, small rural town. Have mayor & city council/6 members. i have outstanding issue re setback violation. my neighbor and i both have homes on same property: he has north 77 feet, i have south 65 feet. lots 50' wide. he bought 133x50' lot to the east of our lot. city streets north and west. i am only person effected by attached garage he built onto vacant, at present in un-livable condition house on east lot
i have been disputing setback since 9/24/2012 when he began erecting framework. have submitted 7 letters of objection (at city request), beginning 10/3/2012. work halted from 2nd day (framework completed only.) City had variance hearing; variance denied. Neighbor given till spring 2013 to come into compliance. 4/3/13 neighbor resumed work on garage, applied tin to roof and sides. i asked city to halt completion; neighbor got lawyer, had variance appeal. was granted a 5' setback instead of a 7' setback required by ordinance. city had survey done to establish lot line. building is 2.6 and 1.9' from lot line (yes, crooked). In 5/6/13 meeting when 5' setback granted, neighbor given till 9-1-13 to comply with 5'. neighbor has not.
city now says, don't know what they can do to enforce.


A different citizen obtained valid building permit to erect grain silo in city limits. 4 adjoining neighbors complained. City got an injunction against building, and rescinded building permit within 60 days. City tells me this is different senario because grain bin wasn't built. ??

my questions: is a court order same as injunction? city has already obtained injunction; they say they cannot move forward with court order because they don't know cost and/or procedure to do so. what is procedure for court order if different than injunction?

City books say they can fine up to $100 for non-compliance. Can they fine $100 per day if not specifically stated in ordinance? If not, can they change ordinance now, and fine $100 per day? if yes, what notice, if any, required to neighbor?

If City continues to "talk nicely" to my face, but basically accomplish nothing, do i have any recourse against city for failure to enforce ordinance, particularly since they just within past 75 days had the "silo incident"?

Is there any governmental or other agency or organization that would undertake whatever i need to do pro bono? i am not in position to pay legal bills, which city is aware of.

thank you very much for taking the time to help me.
Submitted: 1 year ago.
Category: Legal
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking. Remember the experts on this site are independent contractors from the site and receive no credit from the site at all unless customers leave positive feedback.

You have two options here. Typically enforcement authority is discretionary to the government as part of their police powers and they have the power to enforce or grant waivers. Here it seems they are stuck in the middle and are not performing their duties in accordance with the law. Therefore, option 1 is that since the zoning board is ignoring your complaints, your next option is filing a petition for writ of mandamus in the court and get the court to order the board to perform their job and enforce the laws on this matter.

Your second option is to file a suit directly against the neighbor for nuisance and encroachment in contravention to the zoning ordinances and his refusal to even comply with the waivers granted by the zoning.

Thus, you have two options here to pursue this matter, but both require you to go to court to get your relief if the board refuses to act and stop this individual from building his illegal and crooked garage (which you could also argue is a danger to the building inspector since it is not even).



I truly aim to please you as a customer, but please keep in mind that I do not know what you already know or don't know, or with what you need help, unless you tell me. Please consider that I am answering the question or question that is posed in your posting based upon my reading of your post and sometimes misunderstandings can occur. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered.

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Customer: replied 1 year ago.

ok, i understand your answer. i didn't know i had either option. thank you for that.


 


Can you please respond to:


Is a court order the same as an injunction?


 


Can the City fine $100/day if their ordinance says they can fine up to $100, but specifies no time increment?


 


Is there any governmental agency that would step in to "order" the City to act? looking for something other than my pocket, which is very shallow. :(

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

Yes, the court order can be an injunction, but that would only come as part of either suit you file (the writ of mandamus or the nuisance/encroachment suit). Once you file your suit as part of the suit you file a motion for the temporary/permanent injunction.

The city can fine whatever the law says they can fine, but that is discretionary enforcement up to the city.

There are no government agencies that will interfere with the city's policing and enforcement authority, you have to go to court.

I know you are trying to avoid court, but you have done pretty much everything you can with your complaints to the board and filing your appeals to the board and they have not acted, so I am afraid having exhausted all of your non-court means, court is next.
Customer: replied 1 year ago.

Thank you for info re government agencies. :( I will cease looking in that direction.


 


 


Ok, I was unclear on one of my questions. The City tells me they need a Court Order to have the authority to narrow the garage themselves. They say they do not know the procedure to obtain a court order. They recently got an injunction in the grain silo matter. Is a Court Order different than an Injunction? or does the City follow the same procedure they did to obtain the injunction?


 


Re fine: they can fine whatever the law says they can. Which or What Law? The city ordinance? or?


 


 


 


Re City Fine: City "law" states they can fine up to $100. Does that mean only once? or possible to do per day? or they need to amend to a time frame? if yes, can they amend at this point and fine neighbor daily as of 9-1-13?


 


 

Expert:  Law Educator, Esq. replied 1 year ago.
The city is full of it. They know that they have a city attorney who can go to court to file for an order of demolition from the court to get the garage leveled for being out of compliance. The city just does not want to go to court evidently. A court order and injunction are the same thing. Whoever you are dealing with just does not want to go to court to do this.

They can fine whatever the city ordinance states. The violation is every day until it is corrected, so they can fine up to $100 for every day he does not correct the violation if they choose.
Customer: replied 1 year ago.

Ok. Thank you for addressing all my issues. I wish you were local, i would hire you to help me. These are the first direct answers i've been able to receive in almost a year. !!

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

We can give unbiased answers because we are not here looking for clients or looking to refer people to attorneys, our answers are just based solely on what laws provide for and do not provide for. The city has a vested interest in not giving straight answers because then they have to do something.

I hope this works out for you. Please do not forget to leave excellent service feedback as that is the only way I get any credit for the time spent with you today.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 90269
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
Law Educator, Esq. and 5 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Thank you very much. Knowledge is power. I am off to visit each of my 6 council members. I think they are going to be unhappy. Hopefully, unhappy enough to move forward.


 


I have rated your service "excellent". If i had "unbudgeted" funds, i'd leave a tip. Sorry. This already comes out of monies slotted for longstanding medical bills.


 


May the good you have done me return to you ten-fold.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you very much.

What you do not want to do is make the council members angry at you. You need them on your side, so you need to win them over. If you get them angry at you they can make things much worse for you and you will be fighting a steeper uphill battle.

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