by Andrew Getty
The term “setback” is used so often in any code enforcement office that we often forget to be sure the applicant understands exactly what is meant.
Simply put, the setback is the minimum distance required from a structure to any property line.
In a typical four-sided lot, there would normally be two side lines, one front line and one rear line.
However, there are three sided corner lots, pie shaped lots, shoreline lots, lots having a road at each end (two sides & two fronts), “L” shaped lots, even lots in multiple zoning districts.
In most cases it is pretty obvious what is what. But sometimes a little interpretation is needed.
Most zoning ordinances will give the Code Officer the authority of interpretation if required.
However, if the applicant does not agree, usually the Zoning Board of Appeals would have the jurisdiction of a final interpretation.
The most common misunderstanding of setbacks is how and where to measure them.
First of all, you have to know exactly where the line is. No guessing, not “about here,” not the big tree, or near that rock, or even at the fence.
Almost always a competent land survey is required and an accurate map showing the location of structures and the shortest distance from the property lines to every corner of the building.
Having the surveyor set marker pins in the ground is very helpful as well.
The survey map, sometimes also known as the plot plan, is a plan view. Unless topographical lines were added, special land features are not shown.
If the property has steep slopes, keep in mind all distances are measured absolutely horizontal… you do not measure down the slope.
This concept is often misunderstood by applicants along shorelines, where some shoreline areas can have steep slopes down to the water… Regardless, always measure slopes horizontally.
To measure the road side (front yard) setback, again measure from each corner of the structure the shortest distance to the edge of the road right-of-way… not the edge of pavement or road surface.
The edge of the right-of-way and the property line is the same thing.
All too often applicants will measure to the edge of the actual driving surface, pavement or dirt.
Most local roads (village and town) may have typical 40 or 50 foot road right-of-ways (ROW). The driving surface may only be 20 to 25 feet wide and is located inside the wider ROW.
Do not assume the driving surface is centered exactly in the middle of the ROW.
For a typical 50-foot ROW, if you assume the paved surface is exactly in the middle of the ROW, measuring 25 feet from the center of the road should be about where the property line is… but this is only an approximation… A competent land survey is required to determine where things actually are.
Another common mistake is along the side or rear property lines involving some kind of easement.
This could be a municipal easement (drainage, sewer, water, utility) or a private easement like access for ingress or egress.
Unless the local zoning ordinance says otherwise, the setback is still measured from the property line, not the edge of the easement line.
Private easements or private restrictive covenants written into deeds… this can sometimes be a hot topic. Rarely are deed restrictions enforced by the local municipality.
Unless there was a subdivision approved by the municipality providing conditions of approval authorizing the municipality to enforce these conditions, the local town may not have any jurisdiction.
Examples may be the town’s zoning requires a 25-foot side property line setback for a structure, but the deed says 50 feet.
Or the town’s zoning ordinance allows for detached garages, but the deed says they are prohibited.
Can the code officer deny a building permit application for a detached garage?… No.
However, knowing these conflicts and advising the applicant accordingly is prudent.
Measuring setbacks, understanding ROWs, easements, rights of ingress and egress, deed restrictions, restrictive covenants… all of these things need to be understood and honored to avoid problems in the future.
The municipality may have jurisdiction with some issues, while others are purely civil in nature and must be worked out by the neighbors.
Civil solutions arrived at among neighbors are always best. The alternatives are courtroom solutions, which are rarely civil and always costly.