Does the village of Sag Harbor have the authority to require a property owner to put in a nitrogen-reducing “innovative-alternative” septic system when it grants permission to tear down and rebuild a waterfront house and refurbish its pool only 30 feet from wetlands?
Since March, the village code has required so-called “I/A” septic systems for all new construction and major renovations.
But what if the applicant already has in hand a permit from the Suffolk County Department of Health Services — granted before Sag Harbor adopted its the I/A requirement — to install a new, but old-fashioned, passive septic system, which releases far more polluting nitrogen into groundwater and surface waters?
That’s one of the questions that came up before the Harbor Committee on Monday, September 9, when it heard the application of Sandra Farkas for a wetlands permit to rebuild from the foundation up a house at 14 John Street on Upper Sag Harbor Cove and convert a vinyl pool to gunite, 30 feet off the property bulkhead.
The wetlands code, adopted in 2015, requires a 75-foot setback from wetlands for structures and a 50-foot natural vegetative buffer.
The board tabled to the application until its meeting on October 21 to allow its newly appointed attorney, Fred W. Thiele Jr., time to review the matter, including two other cases that came before the board recently that may bear on the board’s review.
In one case, Judy Gilbert’s proposal earlier this year to build an addition at 148 Redwood Road and put in a pool in a conforming location, the committee was told in no uncertain terms last May by Ms. Gilbert’s attorney, Tiffany Scarlatto, that her client didn’t have to put in an I/A septic system despite the recent village requirement.
Ms. Gilbert had a permit in hand for a conventional system that was issued by the county before the village changed the code, Mr. Scarlatto said; and because the application conformed to all wetlands code requirements, and no setback waivers were required, the committee had no leverage with which to bargain.
Board members in May cajoled Ms. Scarlato to ask her client to “do the right thing,” as Lilee Fell put it, and put in an I/A system to protect the cove and bay. Will Sharp, asking the board’s attorney at the time, Denise Schoen, if it had any leverage in the matter, said it “seems like a slap in the face.” Joan Butler, a member of the Friends of Havens Beach who observed the May meeting, called the plan to install a standard septic system “shameful” and “one of a thousand cuts that bleed into the bay.”
The board eventually granted the application, including the installation of the conventional septic system.
In the other case that Mr. Thiele may look into, the committee appears set on denying a wetlands permit for the installation of a new pool behind a house at 36 Fordham Street, about 55 feet from the wetlands of Ligonee Brook.
The more than two-year-old case was on the agenda for a decision again on Monday but was postponed once more as Ms. Schoen, who is now the village attorney advising the mayor and trustees, drafts a decision for the board to vote on.
The Farkas application calls for refurbishing a pool that is even closer to the wetlands than the proposed pool at 36 Fordham. Mr. Sharp commented that the process of converting a vinyl pool to gunite “is not insignificant,” possibly raising questions about its status, once it is refurbished, as a pre-existing, non-conforming structure in the recommended 75-foot setback zone.
Mr. Sharp referred to the proposal as “a complete new house and new pool, and I like the project,” but questioned the plan for a conventional septic system.
Unlike the client and attorney in the Gilbert case, Ms. Farkas’s attorney, Brian DeSesa, said his client was willing to talk about obtaining a favorable decision from the board with the condition that an I/A system be installed.
The panel’s attorney, Mr. Thiele, said “it may be within the discretion of this board to make it a condition” even without granting waivers from the wetlands code. The question, he added, is whether or not the panel has the authority to withhold a permit unless an I/A system is included in the plan “and I suspect that you do.”
In addition to the question of allowing the pool to remain 30 feet from the bulkhead, the board also must consider alternative pathways for pool fencing, one cutting across a proposed native vegetative buffer and the other forming a rectangle around the pool.
Mr. DeSessa said the entire property would be converted to a non-fertilization zone.
