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WLNG
April 12, 2006

Close, But No CO: Consider Code Revision


Opponents understand where the East Hampton Town Board wants to go. They just think it's going a little too far. Last week the board held a hearing on a proposed amendment to the town code relating to certificates of occupancy.

Town Attorney Laura Molinari offered the genesis of the initiative. Periodically when town prosecutors bring property owners into Justice Court for code violations, the defendants will claim they just purchased the home and were unaware of any illegalities.

According to Supervisor Bill McGintee, typically the court will say "If you're not aware, you're not responsible." There's a loophole for anyone who wants to violate town zoning laws, he said, and the amendment seeks to close the loophole.

If adopted, the code change would require that an updated Certificate of Occupancy be included with any change of ownership of a property. That would make the new purchaser aware of any zoning violations.

"This goes a little bit far and unnecessarily far," Richard Kahn of Montauk opined. As written the code change would apply even to what was described as "interfamily transfers," meaning transfers among family members, such as when a husband adds his wife's name to a deed or a parent wants to give a partial interest in his land to his children. Molinari acknowledged that the requirement could be financially burdensome, and said the town board might want to consider some exemptions.

Former town planning attorney Richard Whalen thinks the board needs to look at the legality of the law altogether. He said he appreciates the idea behind the law, but characterized it as more of a real estate than a zoning law. There's a chance real estate attorneys from out of town may look for ways to devoid it, or challenge it in court. "Courts in general are very skeptical about municipalities regulating change of ownership," he cautioned.

He endorsed considering exemptions for interfamily transfers, or at least a clear definition of what constitutes a change of ownership.

Not all sale contracts require the seller to provide an updated CO, but most do. It appears the way the new law is written the buyer would have to pursue another CO, since the document would be issued in the name of the seller. The law should also spell out how updated the updated CO should be.

There are "a ton of reasons" why the proposal is bad, Rick Nardo offered. He opined that most code enforcement issues are found in the town's "low end" neighborhoods. Some were made unwittingly, or date back as many as 20 years. Back in the '80s, a homeowner didn't need a permit to refinish a basement as is required now. He estimated there are 3000 illegal basements that would be problematic under the proposal.

Nardo also spoke to the financial burden the law might entail. An application for a CO is just $100, but the surveys included in the process could cost as much as $4000, "and I'm not talking a five-acre Georgica estate," he said. When there are violations, the problem needs to be fixed and then re-surveyed, meaning additional cost.

McGintee expressed gratitude for the debate the proposal sparked and promised town officials would continue to refine the loophole-closing plan.

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