The Larry Rivers sculpture “Legs” was given walking papers at the Sag Harbor Village Zoning Board of Appeals meeting on Tuesday. The board denied an application by Janet Lehr and Ruth Vered to legalize the 16-foot sculpture, which was erected three years ago next to their Madison Street home.
According to Sag Harbor Village Zoning Board of Appeals Chairwoman Gayle Pickering, the “Legs” must be removed by September 15.
The battle over whether the sculpture should be allowed to remain on Lehr and Vered’s property, however, may be far from over.
“We have a Plan B that will put the burden of proof on the village,” said Lehr, hinting at possible litigation over the case. “It will be costly and expensive for the village.”
The “Legs” case has captured the attention of local residents, but has also spanned the globe in terms of media coverage, mainly because of the core argument that Lehr and Vered have made — that the sculpture is art, and not something that should fall under the purview of zoning regulations.
But the Village of Sag Harbor’s Board of Trustees denied a request by Lehr and Vered last year to define art under the village code. Village Building Inspector Tim Platt has continuously ruled that the “Legs” are in fact an accessory structure, and as such needed three variances from the zoning board in order to remain alongside Lehr and Vered’s residence, the former Bethel Baptist Church. The “Legs” are located a foot from the property line where 35-feet is required, and are seated at 16.1-feet high where 15-feet is the maximum allowed. The sculpture also protrudes into the sky plane 16.7 cubic feet more than allowed under the code.
In addition to seeking those variances, Lehr and Vered also asked the board to consider nullifying Platt’s definition of the “Legs” as a structure. After a protracted debate on Tuesday, Lehr and Vered were denied on all fronts.
“In all the years I have been here on this board I have never had a variance ask for that much relief,” said board member Anton Hagen, referring to the request for a variance to allow the “Legs” within a foot of the property line where 35-feet are required. “It goes against all other decisions I have made in 10 years on this board.”
“I feel the same,” said board member Brendan Skislock. “If they were looking for one or two feet of relief it would be different.”
The remainder of the board, with the exception of Michael Bromberg who has recused himself from ruling on the case since a family member owns a neighboring parcel, agreed the application should be denied.
In reading the decision, Pickering said deciding whether or not Platt erred in classifying the “Legs” as a sculpture would have required the board to consider whether or not the decision was “irrational or unreasonable.” The code defines a structure as “anything constructed or erected in the ground or upon another structure or building,” and as the board’s decision notes the “Legs” meet the definition of “anything.”
She added that the board’s analysis was also driven by a court case out of the Town of Southold, Miller versus Price, where the town decided that a sculpture of a heron needed a building permit. The town was sued but the decision was ultimately supported on the appellate level of the State Supreme Court.
“We are not persuaded by the argument that a sculpture is ‘art; and therefore somehow exempt from the Village Zoning Code,” reads the board’s decision. “A sculpture can be both ‘art’ and a structure subject to zoning. There is nothing in the Sag Harbor Village Zoning Code that exempts ‘art’ from the definition of a structure. Further, the concept of a local government determining what does and does not constitute ‘art’ would present a constitutional conundrum that government must avoid. ‘Art,’ like ‘beauty’ is in the eye of the beholder and is not something to be legislated.”
As for the rest of the variances, the board had to consider whether the benefit to Lehr and Vered outweighed the detriment to the health, safety and welfare of the neighborhood or community and if it would result in an undesirable change in the character of the neighborhood.
“We are concerned about allowing a structure one-foot from the property line and the precedent that would set,” said Pickering.
She added neighbors have “vehemently opposed the application.” At public hearings earlier this year, Lehr and Vered received ample community support, but neighbors spoke against the application citing the size of the sculpture, the location just a foot from the property line and the fact that it is lit in the evening hours. Because of those factors, the board said the “Legs” would result in an undesirable change in the character of the neighborhood and that the detriment to neighbors and the community outweighs the benefit to Lehr and Vered.
The decision also states that the location of the proposed structure in the historic district is “contrary to the goals of the village to preserve and protect historic character” and that Lehr and Vered have other alternatives in how they display the sculpture.
“Sag Harbor has been a center of culture and the arts,” reads the decision. “It is part of the village’s character and commerce. The arts have thrived in the village’s environment. Art galleries are a permitted use in the village business district. Art studios are a permitted use in the residential district and the display of art on public lands is encouraged. Finally, sculptures may be displayed on individual residential properties provided it is in a conforming location. In summary, there are a variety of options for the display of a sculpture in the village that do not run afoul of the village zoning code.”
While the village attorney, Denise Schoen, suggested the sculpture come down some time in the next 60 days, with the zoning board’s support Pickering said the “Legs” could remain until September 15.
“All artificial lighting of the structure shall be discontinued immediately,” she added.
After the decision was read, while walking out of the room Vered called the board “a bunch of chickens.”
Outside the board room she said the lighting of the sculpture, on the Henry Street side of her residence, provides needed street lighting on an otherwise unlit portion of the village. She also wondered why that lighting was so undesirable when the village is considering allowing a new convenience store and remodeled gas station at Harbor Heights on Route 114, which will come with new lighting on the edge of a residential neighborhood.
“They should pay me to have the lights and the sculpture,” said Vered.
She later returned to the boardroom and questioned two additional variance applications, including one for board member Skislock, saying they should not be approved because the applications did not adhere to the letter of the village zoning code.
“That is what variances are for,” said Bromberg.
After both applications were approved on first hearing, with decisions expected next month, Vered threw up her hands while walking out of the boardroom.
“What a surprise,” she said. “So fast, so fast.”