Proposed East Hampton Town legislation that would automatically deny building permits that had not been reviewed within 90 days from the submission of a completed application will be the subject of a public hearing next Thursday, but it has already raised legal questions.
“The proposed amendment is to make the building permit application process more efficient and predictable while still respecting the law and public safety,” reads the introduction to the draft legislation, which would amend Chapter 102-8 of town code.
“If the application conforms to the code, a permit will be issued,” it reads. “If the review is not complete within 90 days, the applicant can seek relief from the zoning board of appeals or Suffolk County Supreme Court. In no event will an application be deemed approved.”
This is quite different from the decades-old provision of the code that it seeks to amend.
The current code is fairly nebulous. It asks for an application to be approved or not “within a reasonable time, and in all events within 15 days.” It makes no mention of automatic acceptance or denial if that time frame is not met.
In practice, the 15-day time frame is rarely achieved. However, recent and well-publicized delays during the building permit issuance process have resulted in a couple of lawsuits making use of the 15-day time frame with some success.
Joseph Macari and Kim Staller sued the town this spring after they waited six months for their permit. The town was ordered to review the permit, which was ultimately issued. They were represented by Jon Tarbet, a landuse lawyer.
“East Hampton Town deserves credit for recognizing that the existing building permit timeline needs improvement,” Rob Connelly, a former town attorney who is now a partner with Romer Debbas, wrote in his firm’s Hamptons Newsletter. “Establishing a realistic deadline for Building Department action is a meaningful step toward addressing the problem.”
“The more difficult question is what should happen when the town fails to meet that deadline,” he continued. “The goal should be a timely decision — not simply a timely denial.”
He says it’s not clear if a denial is a “determination” that the Z.B.A. could review or if the Z.B.A. has the authority to compel the Building Department to complete a review, among other questions.
“The proposed procedure could have an unintended result: Instead of shortening the permitting process, an applicant whose permit has not been reviewed within 90 days could find [themself] commencing litigation simply to obtain the review it sought in the first place,” wrote Mr. Connelly.
The hearing will be held as part of the East Hampton Town Board’s 6 p.m. meeting. A full agenda for that meeting was not yet available by press time.
