Denied Permit, Owner of 36 Fordham Seeks to Overturn Wetlands Code

36 Fordham Street property seen from Ligonee Brook area. Peter Boody Photo

The owner of a modest house at 36 Fordham Street, who was denied a wetlands permit to build a pool in the backyard overlooking Ligonee Brook is suing the village, not only to win permission to put in the pool but to throw out the entire wetlands code of the Village of Sag Harbor.
Bruce Bronster, an attorney and real estate entrepreneur, has asked the New York State Supreme Court to overturn the village Harbor Committee’s historic October 21 decision as arbitrary, capricious and “an abuse of discretion” that deprives him of the use of his property — standard legal language for any challenge of a municipal board’s decisions.
But going a step further, he also asked the court for a declaratory ruling that the entire village wetlands code, adopted in 2015 to set review procedures for all construction within 150 feet of wetlands, is null and void because it “is not in harmony” with the state’s rules for regulating wetlands.
Before the Harbor Committee issued its denial, Mr. Bronster notes in his suit, the DEC issued a state permit for the pool based on a finding that the nearest wetlands boundary was 24 feet further away from the proposed pool location than the distance the village used in its deliberations.
Using the state’s boundary instead of the village’s, the pool’s location would clear the 75-foot setback recommended in the wetlands code by 12 feet, according to the lawsuit; the village, however, considered the pool site 63 feet from wetlands or 12 feet inside the 75-foot buffer.
“The purported wetlands map as applied to the premises is arbitrary, capricious, unreasonable, exclusionary, discriminatory, confiscatory, unconstitutional, unsupported by any evidence and voice and ineffective,” Mr. Bronster claims in his suit claims, which was filed November 22 in state Supreme Court in Riverhead by attorney Adam P. Briskin of New York.
The October 21 Harbor Committee decision marked the first time in memory that the panel had ever denied a permit. In all other problematic cases, applicants and the board have negotiated alternative plans to minimize the required setback waivers and maximize environmental benefits, such as wider buffers and more native plantings in fertilizer- and pesticide-free non-lawn reserves.
Over the course of a review process that took two years, opponents of the 36 Fordham application, including the Group for the East End, described Ligonee Brook as a delicate wetlands ecosystem and habitat that connects Sag Harbor Cove to Long Pond in the Long Pond Greenbelt preserve.
“This is a case where the answer should be ‘no,” attorney Jeffery Bragman, representing a neighbor on the other side of the brook, argued during the hearing on the case almost a year ago, calling on the board to exercise its authority to protect the environment.
The board found “that there are some waterfront properties, such as this one, which are so important for the continued health and vitality of our wetland systems that allowing development within the required minimum setbacks is simply not appropriate because the potential negative environmental impacts of such development are so significant it is impossible to adequately mitigate it,” according to the text of its decision.
For at least some members of the board, a key factor in their denial was the applicant’s refusal to locate the proposed pool closer to the house to increase its distance from wetlands.
Chair Mary Ann Eddy said in June that the applicant “has chosen not to pursue” the “practical alternative” of placing the pool adjacent to the house. “If they had, I think my vote would be different,” she said.
In his lawsuit, Mr. Bronster notes that the Harbor Committee’s own environmental consultant recommended approving the application. Addressing the board’s finding that he had failed to consider an alternative location further from wetlands, Mr. Bronster argues that the “proposed location of the pool is in the only area of the backyard where the pool can be placed and still be in the backyard, which is the only common and logical place to build the pool.”
The alternative location, which he said was first suggested by the opposing neighbor across the brook, Philip Susswein, is in the front of the property and “is not only illogical, it would require removal of mature trees … This is also where the dry wells are proposed to contain stormwater runoff and adjacent to where the septic system is proposed. The other ‘alternative’ location is also within plan view of the street and immediately adjacent to the neighboring property.”
Mr. Bronster notes that during the hearing process he reduced the size of the pool and moved it further away from wetlands twice. He also agreed during the hearing process to install an innovative/alternative (“I/A”) nitrogen-reducing septic system to replace the existing conventional system and called for a 13,881-square-foot wetlands buffer along the creek and the revegetation of 2,511 square feet of lawn.
Last year, the board seemed inclined to approve the application. Its environmental consultant, Charles Voorhis, formally recommending approval, commenting in December, “I’m still having trouble with this little corner at the end of Fordham Street having an impact” on the environmental health of the whole area. But attorney Jeff Bragman entered the case and asked for the board to think again. Noting the property was listed for sale, he said that allowing the applicant “to make a few extra bucks” because of a pool permit “is a lot less important than the point of the [village’s wetlands] legislation,” which is intended to protect wetlands, he said.