The owner of a cottage in East Hampton Village, who has been going through the approval process to add 300 square feet to her small cottage for years, is no closer to get a building permit.
On Friday, the village board declined to grant Roseann Birritella's request, which would satisfy the Suffolk County Department of Health — the last hurdle in a four-year battle, according to her attorney Trevor M. Darrell.
He told the board at a hearing that the owner of Cottage 6 at Bayberry Close, a residential co-op at 92 Ocean Avenue, needs the village to authorize a .25 of a Pine Barren credit from the Town of Southampton in order to have relief from a septic design that the expansion causes the cottage to exceed water usage by 75 gallons per day, according to health department calculations.
Pine Barren credit program of transferable development rights began in 1995 as a way to preserve and protect the region's natural resources.
Darrell said a unique set of circumstances exist. Bayberry Close is a pre-existing, non-conforming residential cooperative consisting of 10 individual cottages on 2.5 acres dating back to 1969. Each cottage is owned separately, but are regulated by the co-op's by-laws, which limit occupation of the cottage to 265 days a year, limit the age of the people allowed to stay in them, and even prohibit washing machines and dryers on the property.
Located in the village's Historic District, each property owner has to appear before Village Zoning Board of Appeals to make changes to a cottage.
When the current owner bought Cottage 6, it was mold-ridden and in major need for repair, Darrell said.
Tom Wolpert, a civil engineer with Young and Young in Riverhead, told the board that his client's initial application to the ZBA was denied. The architect scaled back the plan to expand the house from 554 square feet to 854 square feet. The ZBA granted the owner a Special Permit and Area Variances for the reconstruction and extension on Sept. 24, 2010.
Though the cottage will remain a one bedroom, even with the additional 300 square feet, the plans were forwarded to the county health department when the contractor applied for a building permit. Wolpert said this was the first time the Bayberry Close property was sent to the health department for review.
The health department deemed the 2.5 acre property is over-density, Wolpert said.
According to a letter Darrell filed with the village, the health department determined "the water density of this parcel must be calculated by treating the cottages as year round cooperative units and not, as mentioned above, summer cottages with restricted water usage and occupancy constraints."
He said the county's method of calculation has no mechanism to differentiate between such a property and a traditional single building multi-unit co-op.
However, Darrell said, the health department verbalized its willingness to approve the water and sanitation systems — a much more sophisticated system that then existing one from the 1960s — if the village accepted the Pine Barren credit. "We can't do it without the quarter credit," he said.
In 2010, the village took a stance on the use of Pine Barren credits for commercial development and notified the health department of its position. Gene Cross, the village's planning consultant, said the board has taken a position in its Comprehensive Plan, as well.
Village trustees were concerned doing so would create a precedent, something which Darrell felt would be unlikely, as he could find no other example of a similar residential co-op that was built before zoning codes and health department requirements. "Future owners could be put on notice that no other one would get this," he said referring to the Bayberry Cottages.
"We would be naive to think that someone isn't going to come to us and ask someday and say, 'You did it for them, why not for us?'," said Deputy Mayor Barbara Borsack.
A former zoning board member, familiar with the property, said she worried about the property, which is densely developed and so close to the Hook Pond watershed. Each cottage has been added on 50 to 100 square feet here and there, she said. "I think it's time for it to stop and I think this is a good way to stop it," she said.
The other board members agreed that while they understood the unique position the owner found herself in, they didn't want to set a precedent.
Darrell said his client is left with few viable alternatives. Her other options, which he said aren't economically feasible, are to purchase an undeveloped property within the village and give up the development rights to get the Pine Barren credit or build a sewage treatment plant for the property.
"I'm extremely sympathetic," Mayor Paul Rickenbach Jr. said of the owner's situation. "We live in the real world, not the ideal world," he said.