Proposed amendments to 11 chapters of the East Hampton Town Code will come up for public hearing next Thursday, starting at 7 p.m., in East Hampton Town Hall. The amendments stem from revisions the town has found necessary in Chapter 45 of the code, which covers enforcement. They would assign new titles and define the specific powers of those who are charged with enforcement of state and town law. If approved, the Ordinance Enforcement Department title of chief investigator would be removed and replaced with ordinance enforcement officer.
The changes reflect a series of town efforts, dating back to the McGintee administration, intended to “correct and clarify” the wording of Chapter 45. They also come after two attorneys, representing business owners who have run afoul of the code, have charged that many of the town’s enforcement actions have been illegal, and after a $55 million lawsuit against the town was filed in a case involving Thomas Ferreira, a Montauk mechanic. Former Supervisor Bill McGintee and the town board who served with him are named as defendants.
Thomas Horn, a former town fire marshal and safety inspector who is now an attorney, and Lawrence Kelly, who is representing Mr. Ferreira, believe the code is seriously flawed and have lobbied town officials for its revision. Mr. Horn points out that, in 2007, the town board had proposed legislation to create the position of chief investigator, having recognized problems in the code. The legislation was neither adopted nor sent for ratification to the New York Department of State, which would have been required.
In the four years between 2007 and last year, new titles and duties were added in the Ordinance Enforcement Department. Dominic Shirrippa was director of code enforcement from 2006 to 2010, when Betsy Bambrick, who has the post now, was appointed. Mr. Horn said there is nothing in the code empowering them.
The amendments to be considered next Thursday affect enforcement under state as well as town law. That the town code needed clarification with regard to state law had been brought to the town’s attention in September by Richard Smith, an officer of the Department of State, who came to East Hampton at the request of Mr. Horn. Meeting with Ms. Bambrick and Robert Connelly, a town attorney, Mr. Smith is reported to have told them the town code referred to the wrong statue, the state building code instead of the building maintenance code.
Mr. Horn said he had called on the Department of State in connection with some 120 summonses alleging state and town code violations at Maidstone Cottages (on Bruce Lane in Springs). As a result, 100 of the citations were declared invalid, Mr. Horn said.
In June 2011, the town had amended Chapter 102 of the town code (building construction) to acknowledge the applicability of the New York State Fire Prevention and Building code. And, in July, the town board established a committee to review the existing town code “in order to identify areas of potential conflict with the New York State Code.”
“Until the town made its attempt to fix things in June of 2011 they should have been living under the code as it existed from about 1999. Inspectors were never part of the code. A director of code enforcement was never part of the code,” Mr. Horn said.
Not only Mr. Horn, but Lawrence Kelly, a former federal prosecutor who filed the $55 million lawsuit against the town, has been working behind the scenes on behalf of his clients.
For example, on June 18, Patrick Gunn, an assistant town attorney and public safety division administrator who oversees animal control, fire, building, and code enforcement, sent a memo to Town Justice Catherine Cahill regarding “unconstitutional issues asserted by counsel.” The counsel in question was Mr. Kelly, whom Mr. Gunn acknowledged meeting. The memo, which was obtained by The Star, said Mr. Kelly was claiming that the court had “for some time been denying defendants charged with town code violations their constitutional rights, including, but not limited to, speedy trial provisions.”
Mr. Gunn’s memo reported that, in Mr. Kelly’s opinion, defendants had been denied their right to trial until curative action was taken and confirmed. “He believes that by requiring defendants to undertake affirmative acts before trial creates an unconstitutional burden and an admission of guilt,” Mr. Gunn wrote. However, Mr. Gunn assured Justice Cahill that nothing of that sort had happened under his watch.
“I can’t imagine that the court or any of the town departments which file charges with the court ever took such a position . . . those departments divulge themselves of authority over the cases once charges are filed and presented to the town attorney for prosecution,” Mr. Gunn wrote. Justice Cahill, who released the memo, did not comment on its contents.
On the other hand, Mr. Horn said that, as in the Maidstone Cottages case, the court could ask about health and safety. If claims of unsafe conditions were inaccurate, “property owners can be forced to correct things that don’t need to be corrected before being granted a trial.” The court has to depend on the knowledge and authority of code enforcers, he said.
Mr. Kelly had filed the $55 million lawsuit in May. It alleges that summonses issued to Mr. Ferreira, which led to the removal of equipment, cars, and car parts from his property and a tax lien, were issued illegally because code enforcers did not have the proper authority and had used the wrong statutes. Mr. Kelly said the June 2011 attempt to address the issue “fixed only half the problem.”
On several occasions, Mr. Kelly has warned the town board that illegal enforcement could bring a “financial Armageddon” down on East Hampton in the form of other lawsuits.
Mr. Gunn disputes Mr. Kelly’s claim that enforcement has been illegal, while Supervisor Bill Wilkinson has said research into the charge had satisfied his “subordinates” that enforcement powers and protocols were correct.
“We’re talking about enforcing state code, building and fire stuff, and we’re talking about town ordinances. In order to enforce state code, the people must be empowered in local law to do so explicitly. It was anything but, before. They are now going to identify who can do state code, and at the same time make it clear who can enforce local ordinances. This fix should go a long way to doing both things,” Mr. Horn said.
In addition to the Ordinance Enforcement Department, the chapters of the code affected by the proposed amendments cover appearance tickets, beaches and parks, bicycles, skates and surreys, building construction, commercial gatherings, filming, local waterfront revitalization program consistency review, peddling, waterways and boats, and zoning.