Real Estate and Business

Ocracoke Real Estate:
Enforcing building regulation upfront makes sense

By B.J. OELSCHLEGEL

Real estate agents in the state of North Carolina are obligated to know and disclose all material facts with regards to the sale of a parcel of real property. A “material fact” is generally defined as “any fact that is important or relevant to the issue at hand.”

This obligation of real estate law creates a circumstance in which agents have to know and understand the regulations and laws which will affect the state of ownership for a buyer. The North Carolina Real Estate Commission is adamant about protecting the buyer from the condition of “buyer beware.” My point for discussing this piece of real estate law is the observation that many of the rules and regulations, for which my profession is obligated, are dropping through the cracks of the building permit process in Hyde County.

Those details rise to the surface when I find myself in conversation with the building inspector and hear him complain about being caught between a landowner and the neighbor. The landowner secured a permit for a shed which ended up being built either too close to or over the lot boundary. Without markers and lines drawn on the ground, how was the inspector to know whether the regulations were being met?

This is only one instance about which I feel that we can take the knowledge of these rules and create a system that can guarantee that all material facts are collected and used to regulate the development on the island, as they are written in the law.

We’ve all complained about how we have a lot of rules but no enforcement. I would like to propose a system in which we enforce the regulations upfront and not after the fact. It should be obvious that the path of least resistance for enforcement would be before the project got underway. Imagine the legal potholes that the county could sidestep if the responsibility for abiding by the rules was taken in the beginning.

On page 4, item No. 12, in the most current version of The Ocracoke Building Ordinance, there is a requirement for the applicant, for a building permit, to “certify that the applicant will comply with all other laws and regulations which relate to the development of the subject property.” What a pothole or more like a loop hole! If the applicant does not comply with this aspect of the permitting process and the inspector does not know to demand additional documentation, then the applicant is home free. The permit is written and the laws are ignored. Laws are written for the good of the community. This permitting system falls short of protecting the community. The burden of righting the wrongs is then greater with incredible costs of time, energy, and liability.

It makes sense to propose a revamping of the Hyde County building permit package. It is my contention that a survey should be an obligation of every permit packet. The current Ocracoke Permit Application Checklist does call for a “plot plan drawn to scale showing all existing structures, set backs, lot size and square footage, impervious surface coverage and parking.” This plot plan is exactly that -- a plan on a piece of paper indicating the intention of the applicant to follow the rules laid out in The Ocracoke Building Ordinance. The intention to do the right thing needs to be transferred to the earth on which the structure will be built.

This is not the first time that I have called for a survey requirement. Three to four years ago, the suggestion was voted down because of the cost to the landowner and the amount of time that it would take to secure the survey. It is my belief that we should obligate the landowner, on the front end, to guarantee that all building regulations are being met.

I quizzed a reputable surveyor on the question of what is termed a “re-establishing of the original points.” It is a middle-of-the-road option between the two opposite opinions with regards to surveys. If a landowner were to plan on building a house, the first step would be to ask a surveyor to set the corner markers; this is often done by driving an iron stake down into the ground and then leaving a wooden stake above ground. (It is always wise of a landowner to make a cement marker at these points.) A string is then pulled between the two corners, to mark the boundary line. Setbacks are measured from this boundary mark. Once the pilings were in, the surveyor would return to set the elevation of the first floor joists, for flood insurance purposes.

The house gets built and five years later, the landowner wants to build a shed. If the original corners are no longer obvious, a surveyor could be called back to “re-establish the corners.” When I inquired what kind of expense would be incurred, since the surveyor did not have to redraw a map, I was told that in Dare County every building permit required a brand new survey. With that regulation, the planning boards in Dare were trying to make sure that impermeable surface coverage would not exceed the limits with this new structure, that new structures had not been added illegally since the last permit/survey, or that a neighboring property had not unknowingly built over the property line. It seems to me that Dare County set up the survey to act as a safety net, guaranteeing that all rules are being met.

Surveys are one alteration that I would like to make to our permit package. The other has to do with environmental regulations. In an effort to protect a buyer in a sales contract, agents will often include a condition in a contract stating that the buyer requires a letter from each of the environmental agencies, indicating that the agency does not have jurisdiction on that parcel of land. Agents have learned a lot about environmental policies, but they are not the regulators and have seen the changes in interpretation. What better way to protect your buyer and cover one’s reputation? It is my opinion that the same requirement should be a condition for receiving a building permit.

With building inspectors turning over so quickly in the county, I also wonder if the permit package could be written to include a check list which would focus the attention of any inspector to each and every point in our building ordinance. That seems like a major but worthy undertaking for our planning board. With the amount of concern that we each have for enforcement, it would make sense for us to create the systems which would aid the county and guarantee that the rules, adopted by this community, are being enacted.

(B.J. Oelschlegel has lived on Ocracoke Island for 30 years and has worked in the real estate business for 26 years. She is a broker with Ocracoke’s Lightship Realty and a real estate columnist for The Ocracoke Observer. You can reach her by e-mail at bj@ocracokelightshiprealty.com)