Sympathy for Alzheimer’s Patient Collides With Water Protection Rules

Dan Gasby, the husband and business partner of B. Smith, the former restaurateur who has Alzheimer’s disease and has a history of going missing, sought permission from the East Hampton Town planning board on Feb. 13 to allow the couple’s property to remain overcleared of vegetation so Ms. Smith could have open space to walk outside while remaining in sight of those in the house. “I wanted to create a park-like setting so she wouldn’t get discombobulated or lost,” Mr. Gasby said.

The property of nearly 11 acres in Northwest Woods is located in a water recharge overlay district, an area the town code subjects to regulation to protect the purity of rainwater that replenishes the underground aquifer. More than 68,000 square feet of vegetation were cleared from the site, where only 45,000 square feet is permitted.

The owner of a property in a water recharge overlay district can receive a special permit for excess clearing if the parcel exceeds 300,000 square feet in size, if no more than 15 percent of the lot is cleared, and if the clearing would not negatively impact underground drinking water, wetlands, wildlife habitats, rare vegetation, or a view from public land.

Madeleine Narvilas, a lawyer representing Mr. Gasby, said that her client’s property meets each of those requirements. Board members were not convinced, and asked Richard Whalen, another member of Mr. Gasby’s legal team, to prepare a memo explaining why the clearing does not put the water supply at risk. 

 Ms. Narvilas noted that the planning board, in 1995, had granted the property’s previous owner a special permit to clear 50,500 square feet to install a tennis court, and had not cited any concerns about water then. She then invited Mr. Gasby to share his reasons for clearing even more of the land.

 Before he did that, Mr. Gasby explained why he and his wife had bought the property in 2017. The couple had previously lived in a waterfront home in Sag Harbor Hills, he said, but he soon realized that, because of her diagnosis with Alzheimer’s, “living on the beach, by the water, was a dangerous situation — she was constantly escaping.”

She would wander on Route 114 or Hampton Road, he said, and the Sag Harbor police would frequently pick her up and bring her home. Sometimes, however, “if she saw someone who looked like me, she would get in the car with them,” he said.

During his search for a safer home for his wife, Mr. Gasby said, he was drawn to their current residence because nearly four acres of the property are fenced.

After buying the house, he cleared part of the property, he said, to install a fenced run for their five dogs. “My wife and I never had children, so the dogs became like surrogate kids,” he said. “She walks back and forth to the dogs, and  I wanted to have a clear sightline to see her, and for her to see the dogs.”

Board members were clearly moved by the presentation. Eric Schantz, a senior planner in the planning department, said he, too, sympathized with Mr. Gasby’s reasons for overclearing, but reminded the board that a special permit would apply to all future owners of the property. The dog run, he said, might eventually become a lawn requiring upkeep that would be harmful to the environment. Marguerite Wolffsohn, the planning director, also warned against the whittling away of water protection measures.

Randy Parsons, a board member who was attending his first meeting since being rescued from a fall into the icy waters of Napeague Harbor on Feb. 3, also had reservations about granting the permit. “We’re being asked to ratify over- clearing after the fact,” said Mr. Parsons, who recommended that Mr. Gasby attempt to revegetate the property to the 50,500-square-foot clearing allowance granted in 1995. He also suggested adding a provision to a special permit that would make the clearing permissible only for the duration of Ms. Smith’s life. 

Samuel Kramer, the board’s chairman, said he was not sure that such a provision would be legal, and was wary about creating a new loophole for those seeking to overclear land. Mr. Kramer said he sensed his colleagues’ “strong desire . . . to do something that allows this situation to be addressed in a humane way.” Still, he urged members “not to open up a door that we might not be able to close.”