“I was shocked when I learned I was in a water recharge overlay, I had no information about this,” said Ilan Rosenthal, the managing member and owner of reTREEt on WNR, a property at 544 Wainscott Northwest Road.
Mr. Rosenthal, a principal at the Redwood Property Group, a commercial real estate firm in Manhattan, purchased the property in 2021, was appealing to the East Hampton Town Zoning Board of Appeals last week to overturn a ruling by Joseph Palermo, the town’s chief building inspector, that the parcel had been overcleared.
Very much overcleared, in fact. The property is legally allowed roughly 16,000 square feet of clearing, but Mr. Palermo’s determination, from July 2023, found that some 24,000 square feet, well over half an acre, had been cleared — 8,032 square feet over the limit.
Aerial photographs show that has been the case since the late 1980s, when the parcel was first developed. Clearing regulations for the water recharge overlay district have been in place since 1984.
Mr. Rosenthal received a stop-work order last year, because he was renovating the property without a building permit, and that’s when it was flagged as overcleared. He told the Z.B.A. he’d started construction because it took too long to get a permit, “It’s supposed to take 15 days and it took over 150,” he said. “My permits are delayed, everything is delayed, I spent all this money on the house and then I’m told it’s illegal.”
The town took him to Justice Court over the clearing issue, and it has been settled, said Rick Whalen, his attorney. “The matter is fully resolved,” Mr. Whalen told the board. “Ilan did not pay any fines.”
If the board does not grant his appeal, Mr. Rosenthal said, he will ask it for a variance to allow the overclearing to remain.
Very few clearing variances have been granted in the water recharge overlay district, however. Under town code, should the Z.B.A. grant this one, it could add restrictive covenants to the determination, limiting the use of fertilizers or pesticides on the property.
Brian Frank, the town’s chief environmental analyst, told The Star in an email, however, that “covenants against the use of fertilizers (or even irrigation) are nearly impossible to enforce.”
Because the property lies over a protected water resource, the charge of overclearing carries extra weight and importance. Tyler Borsack, speaking for the Planning Department and reading from a department analysis, told the board that Mr. Rosenthal’s property, like others in the district, receives a disproportionately large amount of rainwater, which filters through his parcel and back into the aquifer. Less clearing, he said, means less fertilizer and more intact native woodlands and plants, which filter the rainwater before it reaches the groundwater.
“That is precisely why there are stricter clearing regulations in the water recharge overlay district,” Mr. Borsack said. “The trees, shrubs, other understory plants, the leaf litter and all the inhabitants contained within the leaf litter all play vital roles in the recharging of the water.” Nonetheless, he said, the restrictions “still allow for ample room” for a house, pool, and accessory structures.
The gist of Mr. Whalen’s argument was that the Building Department had issued certificates of occupancy for the property twice in the past that didn’t address the overclearing, and thus Mr. Rosenthal shouldn’t be held responsible.
“He bought the property in reliance on those C of O’s,” said Mr. Whalen. “There is a Natural Resources Department memo that accepts 24,000 square feet as the clearing figure. We think we’re entitled to 24,000 square feet of clearing.” That memo, from June 2023, agreed to a revegetation plan that allowed Mr. Rosenthal to get his building permit, but also called for the clearing “to be legalized by the Zoning Board prior to the closing of the permit and issuing of the certificate of occupancy.”
“The fact that they were issued in error does not preclude them from needing to get a variance,” said Mr. Borsack. “The Planning Department recommends, and will continue to recommend, where a C of O is issued in error, that properties be revegetated to the maximum extent possible, and variances only approved when the only option would be to demolish existing structures to revegetate. A high bar should be set for allowing clearing to exceed the maximum allowed in this important area of the town, which is vital to the protection of the town’s sole-source aquifer.”
That said, Mr. Borsack allowed that the Planning Department didn’t believe the property could get back to the 16,000-square-foot clearing figure. “The subject parcel is improved with a large home, an expansive driveway, decking, swimming pool, accessory building, and other structures,” says the department’s analysis.
Mr. Whalen said Mr. Rosenthal would obviously choose to win the appeal and move the legal clearing limit to 24,000, but if a variance were granted, he would agree to 3,900 square feet of replanting, bringing the cleared area on the property to just over 20,000 square feet, a compromise.
“I’m in this house for four million dollars,” Mr. Rosenthal said. “If I don’t have a variance from you guys, I can’t get a C of O, according to the building inspector’s memo. So, because of the town’s previous errors, if I won’t be able to sell the house, I could lose the four million dollars.”
No one called in to speak on the application, and the board closed the hearing and record.
