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Nov 16, 2011 9:11 AMPublication: The Southampton Press

Sagaponack Will Not Contest Lawsuit Challenging Coastal Law

Nov 16, 2011 11:59 AM

Sagaponack Village will not contest a lawsuit challenging the validity of some of its development restrictions along the oceanfront.

After consulting with the village’s attorney, Anthony Tohill, village officials decided not to respond to the lawsuit filed in September by Anthony Petrello, a property owner who has plans to build a house near the ocean dunes in the village.

Mayor Don Louchheim said the village is not fighting the lawsuit because the State Department of Environmental Conservation, also named in the suit, dictated the terms of the law to the village, drawing out its adoption by years and convoluting the intended management of the shoreline. The move will leave the fight to the DEC, should the department choose to oppose the lawsuit.

“We are not going to expend taxpayer funds to justify something that the DEC made us do,” Mr. Louchheim said this week. “It is the DEC that required us to adopt a Coastal Erosion Hazard law, which included regulations over the adjacent areas that precluded us from doing it through the regular zoning code. We could have had these regulations in place in our zoning code long ago.”

The lawsuit challenges the validity of the village’s Coastal Erosion Hazard Area law, which took effect in June of this year. The law mirrors regulations put in place a decade earlier in Southampton Town that effectively prohibit any development within 125 feet of the crest of the ocean dunes.

Mr. Petrello and his wife, Cynthia, own 9 acres of land in Sagaponack, including an oceanfront lot that is currently home to a former migrant worker cottage nestled in the dunes. The Petrellos have proposed razing the cottage and building a 4,500-square-foot house in its place. The village’s ARB has approved the designs of the house, and it conforms to all the village’s size restrictions. But the village’s coastal development law would preclude the project, or at least force it to be substantially redesigned.

The basis for the suit filed by the Petrellos’ attorney is that the state’s own Coastal Erosion Hazard Area law, on which the local laws are based, is less restrictive than the village and Southampton Town law, and that the state should not have allowed the local municipality to adopt more restrictive codes. The state laws only prohibit construction within the dune system itself; the village law, like the Southampton Town law that preceded it, extends the building restrictions into what is known as the adjacent area, extending 125 feet landward. Southampton Town is not named in the suit.

The town adopted its coastal area law in 1988 and updated it in 2001 to extend to the adjacent areas, requiring that any new construction or substantial expansions or renovations to a house within the hazard area would require that the house be moved away from the ocean. The intention of the law was to begin shifting development away from the ocean so that protective dunes would have the space to migrate with expected sea level rise.

Prior to the incorporation of Sagaponack Village in late 2005, its coastal areas had been under the jurisdiction of the town’s laws. After incorporation, the village began drafting its own law, at the instruction of the DEC. But it took nearly four years of drafts and redrafts—drawn out by long periods of unresponsiveness by the state agency, Mr. Louchheim said—before the DEC approved the village’s law. In the interim, the DEC served as the administrator of the village’s CEHA, using the less-restrictive state guidelines.

Mr. Louchheim said the village is unaware to what extent, if any, the state plans to defend the basis for its certification of the village CEHA law. He said the village is not ruling out future action but is satisfied to let a judge determine once and for all what the local CEHA laws should and should not dictate, and to then address development restrictions beyond that as it sees fit through the village code.

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