Harbor Committee Milestone: ‘No’ to Pool Within Wetlands Setback

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

Marking a milestone in its recent history, the Harbor Committee of Sag Harbor on Monday rejected a long pending application for a wetlands permit that would have allowed a pool to be constructed behind an existing house at 36 Fordham Street, 63 feet from wetlands along Ligonee Brook, 12 feet closer than required by the wetlands code.

Opponents of the application, including the Group for the East End, described the 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 argued during the hearing on the case 10 months ago, calling on the board to exercise its authority to protect the environment.

Without any discussion, and without disclosing any part of the decision to the public, the board quickly disposed of the case at the top of its monthly meeting on October 21, voting 5-0 to accept the 12-page draft determination denying the application.

The decision was written by Village Attorney Denise Schoen, the board’s counsel during the time it was weighing the application; she released a copy the following day, when it was also made available by the village clerk in response to a Freedom of Information Law request.

The board’s current counsel, former Village Attorney Fred W. Thiele Jr., recused himself from the case because he lives close by the property.

“We’re disappointed in the vote. We thought it was a good application,” said attorney Brian DeSesa, who represented the applicant, an LLC for which attorney Bruce Bronster is listed as the contact in village building department files. Mr. DeSesa declined to comment further because he had not yet seen the text of the decision.

According to the decision, 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.”

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 for one noted 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.

Ms. Schoen said in an interview in June, when the board voted 4-1 to ask its environmental consultant to draft a decision to reject the application, that the board had never denied an application outright in her eight years serving as its counsel.

In all other problematic cases, the 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.

Mr. DeSesa said during the long course of the hearing that the applicant would agree to install an innovative/alternative (“I/A”) nitrogen-reducing septic system to replace the existing conventional system. But the applicant, he said, refused to relocate the proposed pool closer to the house, as some board members had suggested.

The application called for a 13,881-square-foot wetlands buffer along the creek and revegetation of 2,511 square feet of lawn.

The .84-acre, 36,646-square-foot parcel is a triangular lot that contains a one-story house with attached garage and wooden decking and a gravel driveway. Some 10,508 square feet or about a quarter acre of the parcel is designated freshwater wetlands.

The application called for clearing 981 square feet of vegetation to install a 12-by-24-foot partially in-ground saltwater pool on the northwest side of the house and deck, 15 feet from the northerly properly line and 63 feet from wetlands. Five drywells were to be installed for pool and stormwater runoff. An existing shed only 22.3 feet from wetlands was to have been removed.

Last year, the board seemed inclined to approve the application, with its own environmental consultant, Charles Voorhis, formally recommending approval. “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, Mr. Voorhis said during the December hearing, when Mr. Bragman — representing a neighbor across the creek — first spoke in opposition.

Mr. Bragman, noting the property was listed for sale, 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.

In addition to Robert DeLuca, president of the Group for the East End, the application drew opposition in person or by letter from the Long Island Botanical Society; Save the Great South Bay; Coastal Research and Education Society of Long Island; Kevin McAllister of Defend H20; and the Open Space Council.

“As they described it, this application, taken in the aggregate with other applications that continue the encroachment into minimum setbacks designed to protect fragile wetlands systems,” according to the text of the decision, “would ‘have long-term deleterious impacts to the ecological structure and function’ of not only Ligonee Brook but the neighboring Long Pond Greenbelt, ‘an ecosystem that has been the subject of decades of planning and investment’ to preserve and protect it.”

In addition to posing too much risk to Ligonee Brook and associated wetlands — which, it noted, is the “only stream that supports migration” of alewives and eels to Long Pond — the committee found that clearing and excavating on the site threatened plant communities and habitats.

Among other findings, the committee agreed that the “applicant has not adequately demonstrated that there are no practical alternatives which meet the standards or further maximize the setbacks” required in the wetlands code. “In fact, there is evidence in the record demonstrating that there is an alternative location for the pool … that meets the 75-foot minimum setback.”