# PERGOLA



## VLADIMIR LEVIN (Jul 21, 2022)

(RCNYS 2020)
Is a detached pergola regulated by the residential code?
I need to make a case to the building inspector that it isn't.
Res. code says "Accessory Structures" are, but the definition of structure is so general.
Anyone have any insight(s)?


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## bill1952 (Jul 21, 2022)

I would say yes. Under a certain size no permit is required, which does not excuse you from code compliance, but things happen with no plan review and no inspection. 200 sf iirc in the IRC.  Where I live it is amended to 144 sf. And I do need a zoning permit.


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## VLADIMIR LEVIN (Jul 21, 2022)

bill1952 said:


> Where I live it is amended to 144 sf.


In NY its also under 144 sf , but it specifically says "gross floor area".
Technically, a pergola does not have any gross floor area because it does not have any exterior walls (building code definition).
I'm playing lawyer here but I need to convince the Building Official.


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## TheCommish (Jul 21, 2022)

If it was less than 200 SF I might consider it a detached one story accessory structure and exempt it form a building permit,however subject to zoning review.  Larger than 200 SF  yes it needs a permit

2015 IRC

ACCESSORY STRUCTURE. A structure that is accessory to and incidental to that of the dwelling(s) and that  is located on the same lot.

BUILDING. Building shall mean any one- and two family dwelling or portion thereof, including townhouses, that is used, or designed or intended to be used for human habitation, for living, sleeping, cooking or eating purposes, or any combination thereof, and shall include accessory structures thereto.

STRUCTURE. That which is built or constructed.

Structure was purposely defined broadly, to allow for all the things in the built environment that could fall down, fall over, blow away, drowned or generally case harm to humans. 

Section 105.1 grants exceptions to structures deemed acceptable to not needing a permit, "Exemption from permit requirements of this code shall not be deemed to grant authorization for any work to be done in any manner in violation of the provisions of this code or any other laws or ordinances of this jurisdiction."


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## bill1952 (Jul 21, 2022)

VLADIMIR LEVIN said:


> In NY its also under 144 sf , but it specifically says "gross floor area".
> Technically, a pergola does not have any gross floor area because it does not have any exterior walls (building code definition).
> I'm playing lawyer here but I need to convince the Building Official.


we're both in NY. Doh.   
The Commish makes the point.  Earthen floor houses - common in adobe buildings -  don't get by either with no floor area.  12 x 12 is not small. Build 2 next to each other and don't connect them.


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## tbz (Jul 22, 2022)

VLADIMIR LEVIN said:


> In NY its also under 144 sf , but it specifically says "gross floor area".
> Technically, a pergola does not have any gross floor area because it does not have any exterior walls (building code definition).
> I'm playing lawyer here but I need to convince the Building Official.


Vlad,

Not sure what the problem is, if it is under 144 sqft no permit, if over permit required.

The area underneath the unit is the amount of area it takes up and ergo, the sqft number that applies.

If you don't want to pull a building permit, put up (2) 10 x 10 units separated by a few feet side by side.

I have drawn many pergola designs for fabricators, all have been considered structures all required permits.

But my question is this, the cost of a permit is minimum on a project like this,   

Probably cost more to take the family out to dinner for the night. 

All they are going to do is provide you with a verification it was done correctly, is it your intent not to put up a safe structure?


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## jar546 (Jul 22, 2022)

What is so difficult about obtaining a permit?


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## VLADIMIR LEVIN (Jul 22, 2022)

tbz said:


> Not sure what the problem is, if it is under 144 sqft no permit, if over permit required.


Issue is not getting a permit itself, but that they issued a permit and upon final inspection declared that it was in the setback and needs to come down!
I'm looking for ammo for when I speak with the Building Official; possibly trying to get it removed from the permit.


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## steveray (Jul 22, 2022)

Getting it removed from building permit does not make the zoning violation go away....At least not here.....


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## e hilton (Jul 22, 2022)

VLADIMIR LEVIN said:


> upon final inspection declared that it was in the setback and needs to come down!


Sloppy installation. Move it.


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## TheCommish (Jul 22, 2022)

Zoning is totally separate from Building Code.

Exemption from permit requirements of this code shall not be deemed to* grant authorization for any work to be done in any manner in violation of the provisions of this code or any other laws or ordinances of this jurisdiction."*

Zoning Bylaws are local and sometimes are dependent  what side of the street or where the zone ends side in a left to right side of a property.

Take your lumps and move it.


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## VLADIMIR LEVIN (Jul 22, 2022)

TheCommish said:


> Take your lumps and move it.


Spoken like someone who is definitely not in private practice...


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## Beniah Naylor (Jul 22, 2022)

steveray said:


> Getting it removed from building permit does not make the zoning violation go away....At least not here.....


Yeah, getting the permit status revoked is not gonna work. You can (and should) apply for a zoning variance, but I think you will probably have to move the pergola.


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## rktect 1 (Jul 22, 2022)

steveray said:


> Getting it removed from building permit does not make the zoning violation go away....At least not here.....


Ding ding ding ding.  We have a winner.  Its all about location.


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## e hilton (Jul 22, 2022)

VLADIMIR LEVIN said:


> Spoken like someone who is definitely not in private practice...


Private practice … getting paid for skill, knowledge, successful performance, reputation.  Which one is missing here?


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## bill1952 (Jul 22, 2022)

You asked about residential code and building inspector.  This is purely zoning and the zoning officer. May all look the same - one person does all here for 2 villages and 2 towns - but entirely different. Building comes down to science. Zoning is purely local politics.  Condolences but probably has to move. Try being real nice and humble and apply for a variance but this seems too late.  How far into set back is it?  Around here if no one objects 50% is often granted.


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## jar546 (Jul 22, 2022)

This is all about zoning and not building.  This is a zoning non-conforming issue.  I am thinking about moving this thread to P&Z.


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## jar546 (Jul 22, 2022)

VLADIMIR LEVIN said:


> Spoken like someone who is definitely not in private practice...


Maybe you did not do your homework before you built it?


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## e hilton (Jul 22, 2022)

jar546 said:


> Maybe you did not do your homework before you built it?


What???  You mean … accept responsibility for some rule i didn’t follow because I don’t agree with it?


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## ICE (Jul 22, 2022)

VLADIMIR LEVIN said:


> Issue is not getting a permit itself, but that they issued a permit and upon final inspection declared that it was in the setback and needs to come down!
> I'm looking for ammo for when I speak with the Building Official; possibly trying to get it removed from the permit.


While I might be off base, I will assume that there is an approved site plan and an inspection for a footing took place.  Now the structure is completed and there is a setback problem.

If there is an approved site plan that shows the structure where it is now, well then there is no setback problem....at least not your problem.  Next in line is the approved footing inspection.  Okay, I get that an AHJ is allowed to make a mistake and the injured party doesn't necessarily get a pass due to an innocent error, however there is a compounding factor here.  That should come into play and depending on the extent of the supposed setback violation the AHJ should pick up what's left of their marbles and depart the scene of the crime.

I said depending on the extent of the setback violation because there comes a point when you should have known better.


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## Joe.B (Jul 22, 2022)

ICE said:


> While I might be off base, I will assume that there is an approved site plan and an inspection for a footing took place.  Now the structure is completed and there is a setback problem.
> 
> If there is an approved site plan that shows the structure where it is now, well then there is no setback problem....at least not your problem.  Next in line is the approved footing inspection.  Okay, I get that an AHJ is allowed to make a mistake and the injured party doesn't necessarily get a pass due to an innocent error, however there is a compounding factor here.  That should come into play and depending on the extent of the supposed setback violation the AHJ should pick up what's left of their marbles and depart the scene of the crime.


This is exactly what I was wondering, what do the approved plans show?


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## tbz (Jul 22, 2022)

VLADIMIR LEVIN said:


> Issue is not getting a permit itself, but that they issued a permit and upon final inspection declared that it was in the setback and needs to come down!
> I'm looking for ammo for when I speak with the Building Official; possibly trying to get it removed from the permit.


Vlad,

As noted by many here already, you are looking in the wrong direction.

In many places, and I will take a chance since NYS is one of those places that likes to poke their nose in everyone's business.  Location on the property is regulated by the zoning department, you might have submitted it to the building department, but it is in zonings hands.

Additionally, even if you were per say not required to submit for a building permit because of its size, it would still be subject to zoning as a structure on the property.  Hence location, location, location.

you are currently searching for a loophole that does not exist from where I am sitting.  You see the fact that whomever, you or if you hired someone else, built or assembled the pergola in the wrong place, simply did not follow the plan you submitted.  

There is an old saying, not sure who said it first, but when you are in a hole, stop digging.

There is another old saying, education costs money, and it does not mean you necessarily pay a university, college or trade school to obtain that education.

And yes I should have 5 PHD's and a few other credentials to add to my high school diploma, none of which came with an .edu email address....


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## VLADIMIR LEVIN (Jul 22, 2022)

jar546 said:


> This is all about zoning and not building. This is a zoning non-conforming issue. I am thinking about moving this thread to P&Z.


I never asked a zoning question. Look at my initial post...


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## tbz (Jul 22, 2022)

VLADIMIR LEVIN said:


> I never asked a zoning question. Look at my initial post...


Re-read your response to my 1st post, the minute you noted it failed for being in the setback, that is location, not the quality of the construction, hence zoning.

Just because you didn't type the word, does not mean you didn't take the discussion there.  

zoning applies to everything, permit or no permit when it comes to setbacks.


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## VLADIMIR LEVIN (Jul 22, 2022)

jar546 said:


> This is all about zoning and not building. This is a zoning non-conforming issue. I am thinking about moving this thread to P&Z.


I didn't ask a zoning question. read my initial post...


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## No Soup for you (Jul 22, 2022)

Mr. Levin, 
I am in NY and this certainly appears to be a zoning issue not a "construction" or "code" issue.

Just apply for a variance, alot of paperwork but it might not be an issue. As to who made the mistake? doesnt really matter now, just meet with the powers to be and figure it out. Doesnt seem to be the end of the world


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## bill1952 (Jul 22, 2022)

I and others suggest this sure seems to be a zoning ordinance issue and I noted you referred to building code and building inspector. Then you said setback, a zoning term. But giving you the benefit of the doubt, is there any chance you are within 5' of the property line, in which case I think it could be building code?  I have no idea how you would get the correct fire resistance rating on a pergola.

Did you submit for a building permit with plans before construction? Did they issue a building permit?  Very hard to get this is not zoning.


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## VLADIMIR LEVIN (Jul 22, 2022)

Thanks for everyone's input (except for the snarky comments). Here's the whole backstory.
The lot was part of a cluster subdivision which has a more restrictive rear yard setback requirement. Unfortunately, that information is in the planning department files, and not part of the zoning ordinance or any readily available zoning maps.
I did a zoning analysis (as usual), submitted a permit application with a *site plan*, got a permit... etc, etc, etc...
Now during final inspection they realized the zoning issue. 
Since the initial post I've been working with the building official to resolve this.


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## jar546 (Jul 22, 2022)

VLADIMIR LEVIN said:


> Thanks for everyone's input (except for the snarky comments). Here's the whole backstory.
> The lot was part of a cluster subdivision which has a more restrictive rear yard setback requirement. Unfortunately, that information is in the planning department files, and not part of the zoning ordinance or any readily available zoning maps.
> I did a zoning analysis (as usual), submitted a permit application with a *site plan*, got a permit... etc, etc, etc...
> Now during final inspection they realized the zoning issue.
> Since the initial post I've been working with the building official to resolve this.


So,....thank you for sharing the full story.  It would have been helpful from the beginning.

With that being said, this is why we require a "form board survey" before you can start pouring concrete for footers, slabs, etc.  It eliminates these issues before they happen.  We also include elevations on our form board surveys since my entire beach town is in a flood zone.


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## bill1952 (Jul 22, 2022)

Is that "more restrictive rear yard setback" in your deed?


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## atvjoel (Jul 24, 2022)

bill1952 said:


> Is that "more restrictive rear yard setback" in your deed?


Deeds do not normally call to any setback lines. Usually your legal will call to Survey, if not thats what we call "deeded land" and that starts with a legal description of what you own. "Beginning from the northwest corner of the southwest corner of section 19 etc etc etc....." A Title report sometimes does call to setbacks (Schedule B Exceptions) or if known setback encroachments do exist sometimes are in a Title Report. The people earlier in this thread are correct, its usually zoning that dictates the setbacks. Setbacks change all the time. Sometimes a subdivision plat will show say a 30' setback from 30 years ago but zoning ordinance is say 10' I see it all the time.


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## atvjoel (Jul 24, 2022)

VLADIMIR LEVIN said:


> Issue is not getting a permit itself, but that they issued a permit and upon final inspection declared that it was in the setback and needs to come down!
> I'm looking for ammo for when I speak with the Building Official; possibly trying to get it removed from the permit.


Land Surveyor here (Partners with my old man we are licensed AZ, CA, NM, AZ, and OR) - see this all the time. Just had a client that build a shed and after it was built the city stated he was encroaching into the setback. We completed an "As Built" Survey which basically is a map that showed the shed in relation to the Property Lines, setbacks, etc. Turns out he WAS NOT encroaching. I have seen it where clients are encroaching and have to apply for a variance. 

I would ask the question, how the hell does the inspector know where the setback line is? Calibrated eyeball? Or are your Monument(s) **Property Corners** in and flagged up? Usually will be 1/2" or 5/8 rebar with a license identification tag on it (sometimes fall off or disturbed) or could be 1/2", 3/4" or 1" iron pipe. 

Its always best to have a Land Surveyor stake any building, even a shed, because its an insurance policy. They tie into monumentation and resolve your boundary and stake your building according to plan assuring you are not encroaching into setbacks, etc.


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## atvjoel (Jul 24, 2022)

jar546 said:


> So,....thank you for sharing the full story.  It would have been helpful from the beginning.
> 
> With that being said, this is why we require a "form board survey" before you can start pouring concrete for footers, slabs, etc.  It eliminates these issues before they happen.  We also include elevations on our form board surveys since my entire beach town is in a flood zone.


We usually just set a TBM (Temporary Benchmark) at the Base Flood Elevation in these circumstances and stake building envelope per plan prior to the contractor building the forms and then come back to verify. Then after we complete a FEMA Flood Elevation Certificate. Its always a headache when a DIYer or even a Contractor has stuff all messed up and you have to make multiple trips because they didnt have it staked in the first place. Just had this happen the other day for a site in San Mateo County. He already built the forms and the city wants to verify they are per plan after they were already formed. I have not brought in the field data yet so we will see.


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## Robert (Jul 24, 2022)

This is an interesting thread. Vladimir, thanks for posting. I do zoning analysis all the time but you opened my eyes to requirements that might not show up on zoning maps or ordinances. Since these select units have their own unique limitations, I would think that would be on their deeds. If not, then how do people find out about these types of situations? There is no HOA to alert you to theses unique limitations. Do you do a Planning request for the lot you are interested in? This isn't helping your case, I'm just brainstorming on how to prevent this in the future. BTW, I saw a final Building inspection completely ignoring Planning Conditions of Approval (that are bound into the set of Drawings....page 1)....one was a condition to tear down a detached garage! Sometimes building and planning coordination is weak.


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## bill1952 (Jul 24, 2022)

atvjoel said:


> Deeds do not normally call to any setback lines. Usually your legal will call to Survey, if not thats what we call "deeded land" and that starts with a legal description of what you own. "Beginning from the northwest corner of the southwest corner of section 19 etc etc etc....." A Title report sometimes does call to setbacks (Schedule B Exceptions) or if known setback encroachments do exist sometimes are in a Title Report. The people earlier in this thread are correct, its usually zoning that dictates the setbacks. Setbacks change all the time. Sometimes a subdivision plat will show say a 30' setback from 30 years ago but zoning ordinance is say 10' I see it all the time.


Doesn't seem to be a zoning restriction, but some other encumbrance. That's why I thought it might be in the deed.


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## TheCommish (Jul 25, 2022)

If it is a deed, HOA or other civil restriction why is the Building Official - Zoning Enforcement Officer involved?

As both the BO and ZEO in my community my office does not do official deed research, nor enforce restrictions place on a property by others, except those restriction place by the Planning Board as part of an approved plan by that board.


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## atvjoel (Jul 25, 2022)

TheCommish said:


> If it is a deed, HOA or other civil restriction why is the Building Official - Zoning Enforcement Officer involved?
> 
> As both the BO and ZEO in my community my office does not do official deed research, nor enforce restrictions place on a property by others, except those restriction place by the Planning Board as part of an approved plan by that board.HOA, CC&Rs can also have restrictio


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## TheCommish (Jul 25, 2022)

I am not saying that the HOA, CC&R can not have restrictions. I am saying in Massachusetts they are not enforce by the Building or Zoning Official.

So in the OP's case if the violation is not a Zoning or Building Code violation, why is the BO involved in the enforcement question?


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## ICE (Jul 25, 2022)

I have worked in cities that had HOAs.  We would not issue a permit for many items without an HOA approval.  It’s better to preempt a huge mistake than to wait for the grief that follows when they find out that they can’t have that tile roof or addition in the front yard etc.


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## TheCommish (Jul 26, 2022)

ICE, that is a forward thinking method, there are many requirements that are not part of my approval process, that we point customers to. I am familiar with HOAs from afar. We have 2 condo associations in town and any exterior work is permitted by the association so permit form the BOD has be all read given.

Hats off to you if your office can keep track of a multitude of different HOA rules.


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## ICE (Jul 26, 2022)

TheCommish said:


> Hats off to you if your office can keep track of a multitude of different HOA rules.


There was only one rule to keep track of and that was: Provide a letter from the HOA with an approval and a stamp on any plans.


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## e hilton (Jul 26, 2022)

ICE said:


> I have worked in cities that had HOAs.


I never have dealt with a HOA, but i have been through the permitting process in a historical neighborhood of Wash DC.  That is painful.


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