The Town of Southampton recently held several public hearings to consider a local law requiring an updated certificate of occupancy prior to all property transfers. Specifically, the local law proposed amending Town Code §123-16, Certificate of Occupancy, to state that “upon any change in ownership of a property, an updated certificate of occupancy shall be obtained.” After consideration at several meetings, starting in December of 2016 and ending in March of 2017, the Town Board determined not to proceed with the amendment.

Many East End villages already require an updated certificate of occupancy prior to transfers of property, [1] however East Hampton, Southampton and Southold towns do not. During its public hearing process, the Town Board of the Town of Southampton waded through the many issues raised with regard to the impacts of requiring an updated certificate of occupancy upon both property owners and the Town Building Department. The Town considered allowing exceptions for those transfers conducted for estate purposes only and those transfers between individuals and corporations, limited liability companies, trusts or other entities where the majority shareholder would be the same as the prior fee title owners. Additionally, the Town was asked to consider those properties that cannot obtain an updated certificate of occupancy upon transfer due to over-clearing where compliance requires significant re-vegetation of the property and in certain circumstances Planning or Conservation Board approvals. Obviously re-vegetation cannot occur during the winter months and there is no temporary certificate of occupancy provision in the Town of Southampton’s code potentially putting property owners in a hurry to sell in a difficult situation.

The Appellate Division, Second Department, addressed an updated certificate of occupancy code provision in Lazy S Group I, v. Gomez, et al., 60 A.D. 3d 999, 876 N.Y.S.2d 473 (2d Dept. 2009). This case involved an action for specific performance of a contract for the sale of real property in the City of Peekskill where the contract required the seller to deliver a valid certificate of occupancy authorizing the use of the premises as a four-family dwelling. At closing, the parties learned that the certificate of occupancy for the premises permitted its use as a “three-plus” family dwelling but not as a four family dwelling and title did not close. Litigation followed and during that time period the City of Peekskill enacted a new provision of the Code of the City of Peekskill requiring that an updated certificate of occupancy be obtained before any improved real property that is transferred may be used or occupied. The code imposed the burden of obtaining the certificate of occupancy upon the seller “unless the parties agree otherwise in their contract of sale.” (Peekskill City Code §300-48A(3)). The Supreme Court granted the seller’s motion for summary judgment dismissing the complaint and directing the delivery of the down payment to the seller as liquidated damages. The Appellate Division reversed noting that while the City Code imposed the burden of obtaining an updated certificate of occupancy on the Seller unless the contract stated otherwise, the contract in this case was silent with respect to which party must obtain the updated certificate of occupancy. Thus, the Court found that triable issues of fact existed as to whether the communications between the parties and conduct of the parties at closing constituted any agreement with regard to the updated certificate of occupancy and whether there was a breach and if so, which party was in breach of contract. This case illustrates issues that arise when updated certificates of occupancy are required by municipalities and further illustrates the benefit of addressing such matters with specificity in the contract of sale. Indeed, most real estate attorneys require updated certificates of occupancy in their riders to the contract and are successful in obtaining same unless the property is being sold “as is” or there are existing illegal structures that would take a significant amount of time and village/town approvals to cure (as in the case of those over-cleared properties that require costly re-vegetation and further town approvals).

Requiring updated certificates of occupancy for real property transfers burdens homeowners with legalizing all structures on their property and necessarily can delay real estate transactions to the chagrin of real estate brokers. However, the law would obviate any need for protracted and often difficult negotiations regarding properties that do not comply with the law or have existing, illegal structures and would therefore be welcomed by most attorneys. Regardless, for real property transfers in the East End towns, attorneys must continue to resolve such matters through contract negotiations.

[1] See Village of Quogue; Village of Sag Harbor Code §300-17.3(B); Village of Southampton Code §A119-8(A); Village of North Haven Code §55-7(A); Village of Westhampton Beach Code §197-64(C); & Village of East Hampton Code §104-11(A), among others.

In recent months, the Village of Sag Harbor and the Village of Patchogue enacted moratoriums aimed at halting large-scale residential development, and in Patchogue’s case, including multi-family residential development.  Both Villages learned that enacting moratoriums is not only subject to referral to the Suffolk County Planning Commission (“SCPC”) pursuant to General Municipal Law § 239-m but also, moratoriums can be subject to intense scrutiny by constituents and other governmental agencies, such as the SCPC.

What is a Moratorium?

Moratoriums, a word that brings angst to landowners and developers, are used by municipalities to temporarily control development while they study and potentially adopt changes to their comprehensive plans or to their land use regulations.   Often described as a means to preserve the status quo, a moratorium can halt all development in a community or can be tailored to a specific land use or aimed at a specific zoning district.  Moratoriums can include exemptions that allow some development to continue. For example, a municipality may exempt applications that have already been approved but not yet started.

Municipalities adopt moratoriums for several reasons: (1) prevent a rush to develop; (2) prevent inefficient or impractical growth; (3) address new types of land use not currently covered by their comprehensive plans or land use laws; (4) prevent hasty decisions that could adversely impact landowners, developers or the public; and (5) prevent construction that may be inconsistent with a future land use plan. If a municipality adopts a moratorium, it should make sure it is temporary, is for a reasonable time frame, has a valid public purpose,  balances benefits and detriments of the moratorium, adheres to the procedure for adoption of local laws and ordinances, and contains a time certain when it expires.sag%20harbor%20sign[1]

Sag Harbor’s 2015 Moratorium Did Not Comply with GML § 239-m

The Village of Sag Harbor enacted an 180-day moratorium on July 14, 2015, that temporarily suspended the Village’s authority to process and/or grant approvals for building permits for certain one-family detached dwellings.  The moratorium was triggered by the recent development of one-family homes of “a size and scale that are inconsistent with the historic and rural character of the Village” and conflict with the purposes of the Zoning Code. Id.  In other words, the Trustees were concerned about the explosion of McMansions being built in the community.

The Village wanted time to consider gross floor area requirements and enacted the moratorium to preserve the status quo and avoid overburdening Village planning staff and boards.  The moratorium contained an exclusion that allowed the construction of homes that had been issued building permits before June 9, 2015.  It also allowed homes not exceeding 3,500 square feet to be constructed on lots of 20,000 square feet or less, or not exceeding 5,000 square feet on lots larger than 20,000 square feet.  It also excepted from coverage, alterations or improvements to existing one-family detached homes that did not constitute “substantial improvement.”  Id.

Although this moratorium was filed with the New York State Department of State, news reports note that constituents, unhappy with the moratorium, argued that the Village did not refer the moratorium to the SCPC for a determination of regional significance as required by GML § 239-m.  That could have been fatal to the moratorium.

Sag Harbor’s 2016 Moratorium Did Comply with GML § 239-m

On January 12, 2016, the Village of Sag Harbor enacted a local law that put in place “temporary interim building restraints on building permits for certain one family detached dwellings pending the conclusion of the Planning Update and SEQRA Process for the enactment of permanent regulations for development and redevelopment of residential dwellings.” Id. The 2016 local law states it replaces the previously-enacted July 2015 moratorium and will be in place until permanent rules are adopted.  According to news reports, this local law was referred to the SCPC and that the SCPC  determined it was not of regional significance.  The Village also filed the 2016 local law with the New York State Department of State

Like the July 2015 moratorium, the 2016 local law contains exclusions.  Any application that received an exemption under the 2015 moratorium and any application that meets the interim development standards in the 2016 local law are excluded from the restraints contained in the 2016 local law.  Whether the 2016 local law results in a construction boom of single family detached homes using the interim building restrictions or turns out to be, in effect, a moratorium, remains to be seen.

Patchogue’s 2015 Moratorium Complied with GML § 239-m But Was Met With Harsh Criticism

imageRYN72OD9Since 2008, the Village of Patchogue has been a pioneer in land-use revitalization and redevelopment.  The Mayor reports that more than 600 people have moved to the 2.2 square miles comprising the confines of the Village.  Population estimates are said to be in the range of 12,500 people.  However, along with these pioneering efforts to rebuild and revitalize the Village’s main street and to promote multi-family downtown living, the Village is experiencing parking, traffic. utilities and general health, safety and welfare obstacles.

In response to the housing explosion, in 2011, the Village enacted its first 180-day moratorium on new apartment houses, garden apartments, townhouses, residential uses and buildings over three stories in certain of its zoning districts, including all floating zones.  Id. At that time, the SCPC approved the moratorium upon condition that (1) the Village investigate whether there are less burdensome alternatives to the moratorium and (2) the production of hard evidence supporting the necessity for the moratorium.

In 2013, the Village once again requested an 180-day moratorium on change of use, an increase in the intensity of use or an increase in occupancy in the D-3 Business District to meet the parking requirements set forth in the Village Code.  The SCPC, although reluctant to grant another 180-day moratorium, approved the referral.  Id.

In 2015, for the third time, and now reaching a moratorium of 540 days, the Village requested a further 180 day moratorium to provide Patchogue with time to evaluate and consider the impact of multi-family housing on parking, traffic, health, safety and general welfare toward a “carefully considered comprehensive plan.” Id. Although the SCPC staff report recommended disapproval of the Village’s request finding that the Village had not moved forward with a plan despite the prior moratoriums; the SCPC granted Patchogue’s request following a meticulous and careful recitation by the Mayor detailing the pioneering efforts and overall success of the Village’s efforts to revitalize an otherwise stagnant downtown.

The Village of Patchogue is in many ways a trailblazer and a model for downtown revitalization and multi-family development.   However, as any trailblazer knows, growth and divergence are never easy or without criticism.  Although Patchogue followed the proper procedure in referring its moratorium request to the SCPC,  all eyes will be on the Mayor and the Village to ensure that this moratorium, will, in fact, be the last.

Conclusion

It would be wise for all municipalities to take note of the Suffolk County Planning Commission’s developing scrutiny in connection with multiple requests to extend moratoriums.  The Commission’s comments are a reminder of the importance to seriously consider the impact of land use development, of whatever kind, on the municipalities’ overall ability to (1) serve land owner’s desires to develop their property and (2) the municipalities’ ability to serve those development needs as they apply to nature and character of the community, parking, traffic and the overall health, safety and general welfare of the community.

 

 

 

There is a movement afoot among Long Island municipalities to regulate or, in some cases, ban the planting, growing or cultivation of bamboo within their communities.  To some, bamboo is an exotic evergreen plant that creates an attractive and effective privacy screen.  To others, however, it is an aggressive, invasive plant that causes ecological harm and significant damage to property, if not properly contained.  The fast-growing roots, or rhizomes, of certain varieties of bamboo plants have been known to buckle driveway surfaces, puncture swimming pool walls, and compromise underground sanitary systems and utility lines.

The Town of Smithtown recently became the first Long Island Town to adopt sweeping regulation on the planting and growing of bamboo.  Smithtown’s ordinance provides that “no owner, tenant or occupier of property anywhere in the Town of Smithtown shall cause, suffer or allow bamboo to be planted, maintained or otherwise permitted to exist within 10 feet of any property line, street, sidewalk or public right-of-way.  Violators of this law are subject to monetary fines and may be ordered to remove the bamboo.  In certain instances, the Town may enter onto the violator’s property and remove the bamboo and assess the cost thereof against the property by adding it to the property’s tax bill.  The Towns of Brookhaven and Hempstead, the City of Long Beach, and the Villages of Woodsburgh and The Branch, have all followed by passing similar legislation.  At the present time, the Towns of Oyster Bay and Islip are considering the adoption of their own bamboo regulations.

Several years earlier, the Fire Island Villages of Saltaire and Ocean Beach adopted local laws regulating the planting and growing of bamboo.  Saltaire’s law prohibits the planting or growing of bamboo anywhere within the Village.  The local law, however, contains an exception for bamboo that was planted or otherwise permitted to grow prior to the effective date of the local law, provided that the property owner takes measures to prevent the bamboo from invading or spreading onto adjoining or neighboring properties.  According to the Village Code, violations of the local law are subject to a fine of up to $250 per day, in addition to civil and criminal penalties.  Last year, the Village of Babylon adopted a local law that was very similar to the one adopted by Saltaire.

However, not all Long Island municipalities have seen fit to regulate bamboo.  This past December, the Village of Sag Harbor voted to withdraw proposed legislation regulating bamboo from further consideration.  After two public hearings, at which the Village Board heard from both proponents and opponents of the proposed legislation, the Board unanimously determined that the situations in which bamboo causes problems between neighbors were too varied to legislate.  This past summer, a proposed law regulating bamboo in the Town of Huntington was defeated by a split vote of the Town Council.

While governmental regulation of bamboo is undoubtedly welcomed by those who are threatened by, or suffered from, a neighbor’s invasive bamboo, such regulations are only enforceable by the municipalities themselves.  For those who wish to take matters into their own hands, a property owner may trim any invasive bamboo roots or limbs at the property line, provided that the trimming is done in such a way that does not permanently injure the bamboo or adversely impact the bamboo’s physical integrity.  A victim of invasive bamboo may also assert claims based on traditional trespass and private nuisance[1] and seek recovery of money damages for the consequences of the trespass and/or an injunction against future trespass or nuisance.


[1] See, e.g., Yager v. Thompson, 1 Misc.3d 902A (District Ct., Nassau Co. 2003), affirmed, 8 Misc.3d 138A (App. Term 2005).