By Kathryn G. Menu
Two attorneys approached the Sag Harbor Village Harbor Committee earlier this month, making cases for why they believe their clients are not required to provide wetland buffers of native vegetation — a tool the committee has been using for years to help improve water quality in Sag Harbor.
And the committee’s village attorney, at least partially, agreed with them.
On Monday, January 13, attorney Dennis Downes returned to the committee for the second time to argue on behalf of the Madeline Smith Trust on John Street. That applicant is seeking a wetlands permit for the construction of a one-story addition, screened porch deck, a new septic system, pervious driveway, new drywells and a retaining wall for the septic system. As a part of the application, the Trust has offered to plant a 25 foot buffer to a wooden bulkhead on the property, but will not plant over a pebble beach. Traditionally, the committee has argued they have a right, via the village code, to require those coming before them with a wetlands permit to plant a minimum 25 foot buffer to flagged wetlands.
“My reading of it, in my opinion, is you have no jurisdiction to require the pebble beach be re-vegetated,” said Downes.
Downes argued the board cannot require planting of an area that is not already planted and that the way the code currently reads they can only demand supplemental plantings for areas already preserved for natural vegetation.
“In granting, we have to look at the role of ecological systems in the whole area,” countered committee chairman Bruce Tait.
Downes said without a nexus — or a connection — between what is happening in terms of water quality and the upland project, which in this case is restricted to home renovation, the board cannot demand more than what his client is already offering.
“You have a right to request a buffer if you feel it is necessary to protect the wetlands,” added Downes. “We are providing you that buffer.”
Tait countered he does not believe there is any way to maintain the pebble beach without a chemical application.
Madeline Smith, present at the meeting, said the family never used chemicals on the area. She added that the 25 foot buffer was mandated by the Department of Environmental Conservation, as was the pebble beach.
“That to us is such a meaningful, valuable part of our property,” said Smith. “I know your intentions are good but from where I sit it feels so onerous for this little cottage.”
“I understand the hardship of this application and what we are dealing with here, but I am just concerned personally, if this is the case, that our wetlands laws have been written with so many loopholes in it they are meaningless,” said Tait.
While committee members, including Stephen Clarke, said they were on the fence about what they should do for this case, committee member Dr. Tom Halton disagreed.
“I feel there is no detrimental affect to the environment in leaving that alone,” he said.
Sag Harbor Village Environmental Planning Consultant Rich Warren asked the board to table the application while he looked into the DEC permit. It will be revisited at the board’s February 10 session.
However, when looking at the application for a demolition and new construction project at 11 Yale Road, attorney Tony Pasca made similar arguments to Downes, although in this case offered no buffer to wetlands at all.
That application calls for the demolition of an existing one-story home and detached garage which will be replaced with a one-story home in the same location, although the applicants plan to use the former garage space for living space. The new residence will also have a covered front porch entry, new decking, an ungraded sanitary system and gravel courtyard.
The project has the support of neighbors, pleased the new homeowners will not expand to a second story.
“My first impression is you didn’t make any effort to deal with the wetlands issue at all and that is where I stand,” said Clarke.
Pasca noted his clients have just 15 to 20 feet of property between the house and the bulkhead.
“We don’t believe we have any obligation to bring it up and we don’t believe you have any ability to ask us to do this,” said Pasca.
He argued the committee cannot have a blanket requirement, but must consider what improvements are being made on each lot, in each case.
“So if you had grass going to the bulkhead and 1,000 feet, you could keep all of that,” asked Tait.
“If the project isn’t making anything worse,” replied Pasca. “You can’t say, ‘This is a great improvement, but we want you to make an even greater improvement.’”
“Without adverse impacts, your analysis of the project needs to change,” he continued later.
Homeowner Adam Schwartz said he never would have bought a home he thought he and his son couldn’t have a game of catch in, a luxury eliminated if the whole of the yard was devoted to native plantings. He added the biggest detriment to the environment that could take place on this property is the addition of a second floor — something his family is not entertaining despite being told by agents they were, “leaving a million dollars on the table.”
Schwartz offered a three-foot buffer as a concession to the committee, despite Pasca’s arguments, which the board accepted with Tait voting against the proposition.
The committee is hosting a special work session, on February 7 at 10 a.m., to discuss issues with the wetlands code and talk about potential revisions.
“It needs to be streamlined and a lot more user friendly for the board and the public,” said village attorney Denise Schoen, who agreed with Pasca that the way the code is currently written the committee cannot demand a blanket 25 foot to 75 foot buffer of plantings to wetlands for every application that comes before it. However, said Schoen, village and state law do allow the board to set conditions for its approval provided they can show a nexus between, in this case, water quality and the detriment of a specific project.
“We need to be able to look at something from a scientific basis and say, ‘In this case this person is doing something that will definitely have an impact on water quality’,” she said.