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UPDATED: Sag Harbor ZBA Stalls “Legs” Decision; Suggests Compromise

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The “Legs” of Sag Harbor will not be walking anywhere. At least for the next month, that is.

On Tuesday night, the Sag Harbor Zoning Board of Appeals tabled Ruth Vered and Janet Lehr’s application for variances to allow Larry Rivers’ sculpture, “Legs,” to remain on the side of their Madison Street home. While all members of the board, save Michael Bromberg who has recused himself from the case, expressed reservations about the precedent they would set in allowing the sculpture, deemed a structure by the village building inspector, to remain on Lehr and Vered’s property line, chairwoman Gayle Pickering suggested a compromise might be reached in this matter after literal years of debate.

Pickering suggested that Sag Harbor Village attorney Denise Schoen could draft an approval that sets a clear timeline on how long the “Legs” may remain on the side of the residence, which is the former Bethel Baptist Church. She added other requirements could be that the “Legs” could not be lit at night as they have been and that Lehr and Vered could be prohibited from similar installations in the future as a condition of the zoning board’s approval.

At last month’s zoning board of appeals meeting, which Pickering was not present at, Lehr and Vered were supported by dozens of Sag Harbor and East End residents, the two people in the crowd opposed to the “Legs” notably being the women’s neighbors. In addition, Lehr and Vered came to the meeting with attorney Richard A. Hammer, who argued the two-year-old case based on its legal merits.

Hammer challenged the zoning board to consider Lehr and Vered’s right to Freedom of Expression, noting that similar methods of expression are not regulated by the village’s zoning code, such as flagpoles or birdbaths, for example. He added that if the “Legs” were to be considered a “structure,” the board could still state that it does not violate the basic principals in zoning — that is it does not benefit Lehr and Vered while proving a detriment to village residents at large.

Lehr and Vered have also collected over 100 letters of support, although Pickering noted on Tuesday night that many dealt with the “Legs” as art, when the building inspector and the zoning board is charged with reviewing them as a structure.

As a “structure” under the village code, Lehr and Vered need three variances. 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. They sculpture also protrudes into the sky plane 16.7 cubic feet more than allowed under the code.

“Personally, I don’t see how I could approve it,” said board member Anton Hagen. “I have been on this board for a number of years and a variance of that magnitude is significant and would have an impact on the village in terms of the applicants we have looked at before and after this. We are not hostile to art, and to be accused of that is a red herring as far as I am concerned. It is not the issue, so I don’t want to hear that anymore.”

Hagen questioned whether or not Lehr and Vered, who own the Vered Art Gallery in East Hampton, have a commercial interest in keeping the “Legs”

“That the applicant is a professional in that field and that they have an interest in representing themselves is a substantial matter,” said Hagen.

“As it hits home, the idea that we would open this up as far as other applicants coming in, I would have an issue there,” said board member Brendan Skislock. “I would have an issue if I was the second applicant coming in and I could not do the same thing. It is not about art. I am just looking at this as a structure.”

“We are setting a precedent and it is not about the art, it is about the law,” said board member Benedetta Duebel. “We have the right to represent Sag Harbor Village in this thing and if we say yes, what is someone else wants to do it, but it doesn’t have to do with art. I know you don’t know this, but I have traveled the world to look at art, but in this case we are talking about a legal thing.”

Pickering said she aimed to find middle ground, suggesting a limited year basis could be imposed on the “Legs” being house on the side of the house.

“Some people like it, some people don’t and the neighbors hate it,” said Pickering. “I am trying to balance everyone’s interest. I don’t want to see this become a revolving art gallery, but on the other hand Sag Harbor is unique.”

“I don’t want to see a Frank Gehry garage parked a foot froom the property line and called art,” she added.

Hammer approached the podium and said that he has already laid out how this case, and this property, is unique in a number of ways that could make an approval one that would not set a precedent.

Outside of the fact that Larry Rivers was an artist who resided in Southampton and is a part of the East End’s artistic history, Hammer argued that the amount o support Lehr and Vered have received, which is filed with the zoning board as evidence, was indicative of the fact that there is a value to this structure remaining in the Village of Sag Harbor.

Hammer said he would not suggest a time frame for the “Legs” existence, as that would be under the purview of the zoning board to make a formal suggestion. However, he added that it was his belief that the “Legs” should not have a time frame associated with it. Hammer said using the balancing test the zoning board is required to use with each application he believed he had shown the “Legs” are a benefit to the community and should be able to remain for an unprescribed period of time.

“I think we have demonstrated the benefit of this structure,” said Hammer.

Hammer also took exception to the notion that Lehr and Vered commercially benefited from the “Legs,” noting that the zoning board does not review the financial benefit of residential applications.

“It just so happens my clients have an artistic background,” said Hammer, noting that as an avid fisherman he decorates his home with fishing artifacts, but it is not in any way meant to commercialize or sell his interest in fishing.

He added that he does not believe this should be reviewed under zoning as art because it is a form of freedom of expression, protected under the Constitution, but that the village building inspector has laid out this path for Lehr and Vered to keep the “Legs” and that is what they are trying to do.

As a “structure” under zoning, Hammer said the zoning board was ultimately tasked with weighing the overall good or detriment of an application and “make a community based decision.” He said removing the lighting was something his clients were amenable to if that was a condition of approval.

Neighbors Jennifer Houser and Charlie McCarron both opposed the “Legs” at last month’s meeting. Houser raised the issue of the lighting, but also of the responsibility the village must take in protecting its historic district.

In an impassioned plea to the zoning board on Tuesday night, Vered charged that McCarron uses his residence as a rental and hopes to sell it, but that ultimately both were just two people who didn’t like the “Legs” as opposed to the hundreds who have signed petitions and sent letters of support to the board.

“I think we have had a tremendous amount of support and I think it does count,” said Vered. “There is no such thing as one size fits all or we would not have a board like this.”

Pickering said once more she would like to see a compromise and asked attorney Schoen to write a draft resolution to that affect for the board’s review.

The matter was tabled until the board’s April 17 meeting, which will begin at 6:30 p.m.

Vered’s Case Has Legs; Decision Tabled Until March

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Tara Newman purposefully drives or walks past Janet Lehr and Ruth Vered’s Madison Street home each day, to admire Larry Rivers’ sculpture, “Legs,” and she is not alone.

“This is art, no question,” said Newman during a Sag Harbor Village Zoning Board of Appeals meeting on Tuesday night. “Larry Rivers’ was not just some local guy, and this is not just some sculpture, but the work of a world renowned artist.”

Newman was one of scores of people who came out mostly in support, though some opposed, the longstanding application of Lehr and Vered to legalize the 16-foot sculpture by the Village of Sag Harbor’s standards under its zoning code.

In a village not unaccustomed to debate, or art for that matter, in the last two years this story has evolved into a discussion about the right of a property owner to display expression as a Constitutional right versus whether a sculpture like the “Legs” should be defined as a structure.

For the first time since 2008, on Tuesday night, an attorney, Richard A. Hammer of Montauk, known locally as “Andy,” represented Lehr and Vered in their quest to keep the “Legs” planted next to their home, the former Bethel Baptist Church.

Hammer challenged the zoning board to consider Lehr and Vered’s right to Freedom of Expression, noting that similar methods of expression are not regulated by the village’s zoning code, such as flagpoles or birdbaths, for example. He added that if the “Legs” were to be considered a “structure,” the board could still state that it does not violate the basic principals in zoning — that is it does not benefit Lehr and Vered while proving a detriment to the health, safety and welfare of residents in Sag Harbor.

Down two members — ZBA Chair Gayle Pickering was away for Tuesday’s meeting and Michael Bromberg, who has relatives with homes nearby, has recused himself from hearing the application — the zoning board ultimately decided to table the application. By doing so, they will allow a 10-day period for new public comment, and give Pickering time to review the record and become involved in the decision making process.

The next zoning board of appeals meeting is scheduled for March 20 at 6:30 p.m.

However, on Tuesday night it was clear Hammer gave the board a lot to consider, and while the crowd packed into the second floor meeting room of the Municipal Building, including members of the media brandishing video cameras, so did two neighbors who opposed the “Legs” and the impact it has had on their properties.

Hammer presented the zoning board with a petition in support of the “Legs” remaining on Madison Street 430 names strong. He also offered 62 letters of support including from Larry Rivers Foundation Director David Joel, David Levy of the Sotheby’s Institute of Art and Helen Harrison of the Pollock Krasner Foundation.

Hammer called on the zoning board to vote against building inspector Tim Platt’s determination that the “Legs” were a structure, noting that as the village code reads, a structure could be virtually anything from a birdhouse to a flagpole or pergola or even a seasonal decoration. When speaking to Platt about the code’s lack of definition when it comes to what is excluded in the definition of a “structure,” Hammer said Platt informed him it fell to his common sense.

Hammer questioned whether the village code was in fact designed to regulate a case like this.

“If everything is a structure, common sense has to prevail on what is regulated and what is not,” argued Hammer. He noted in East Hampton and Southampton towns, sculptures are allowed under code with a building permit designed, not to prevent it from being erected, but to protect the health, safety and welfare of residents, as all codes are meant to ultimately do.

The “Legs,” he continued, have no accessory benefit to Lehr and Vered, not providing storage, shade or lighting, for example, and other than their existence do not have a function associated with their residential property as is common with accessory structures.

“It’s a vehicle for the exercise of a fundamental right of free speech and expression and an integral part of the Sag Harbor community,” said Hammer to the cheers of many in the crowd.

Hammer further argued that if Vered and Lehr were required to move the sculpture to conform with village standards for a sculpture this would be regulating the content of free speech into a backyard.

Displays by veterans groups, or others, continued Hammer, are expressions not relegated to backyards.

Sag Harbor Village Zoning Board of Appeals acting chairman Brendan Skislock said the zoning board could not look at this application in terms of art, but as it has been defined as a structure. He asked Hammer for decisions or cases in the village with similar setback concerns.

As a “structure” under the village code, Lehr and Vered need three variances. 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. They sculpture also protrudes into the sky plane 16.7 cubic feet more than allowed under the code.

Hammer questioned whether the benefit to Lehr and Vered outweighed any detriment on the community or a violation of the character of the community. Under those standards, even as a structure, the board could approve the “Legs” to stay, said Hammer.

He added unlike non-conforming decks, it would be difficult to find a comparable example to the “Legs” in Sag Harbor.

“To play devils’ advocate, and maybe this is fine, but what if someone two blocks away was going to come in and ask for a variance and say, ‘I am only one foot away from the property line and you gave this structure an approval’ and then you had 10 more homes, 20 more homes or 150 more homes come in,” said Skislock.

Hammer said while he understood concerns over precedent setting, in this case it could be something to celebrate if 150 homes erected sculptures similar to Lehr and Vered, although he questioned how the sculpture could ever be compared by another attorney to a garage a foot away from the property line — something that could increase noise, odors or light and affect neighbors.

Sag Harbor Village Attorney Fred W. Thiele, Jr. urged Hammer to focus on the “Legs” being considered a structure, noting there is case law that backs the village up.

“The second part is more pragmatic,” he said. “What I think is art and what you think is art and what everyone in this room thinks is art is going to be different. The last thing you want is for government to determine what art is.”

Hammer said that in addition to the “Legs” not impacting neighbors in a negative way, Rivers was a renowned local artist and that should be considered as well.

“I don’t share your vision for Sag Harbor where you stated you would welcome the development of 150 such structures in Sag Harbor in the future,” said board member Anton Hagen. “You state the precedence setting nature of our decision would further that goal you see as positive and I disagree with that.”

Both Skislock and board member Benedetta Duebel agreed with Hagen’s concerns about setting a precedent, with Skislock offering that perhaps the village code should be revised.

Sag Harbor resident Brian O’Leary, who said he knew Rivers dating back to 1983, said the artist would likely be amused that his sculpture could be banned in Sag Harbor.

“Sag Harbor should be proud his beautiful, whimsical sculpture lives in our village,” said O’Leary. “If the building was still a church and there was an equal size crucifix hanging on the wall, would you be asking the congregation to take it down?”

David Joel, the director of the Larry Rivers Foundation said he was concerned that through this debate the work of a great artist was being deemed “not art.”

“They have been documented in books, documented as art,” said Joel. “You don’t have to go reaching into some strange atmosphere to determine this art.”

“If it’s art, it shouldn’t be before this board,” said Hagen.

“I agree, 100 percent,” said Joel.

“We have no standing then,” said Skislock.

“Maybe you should recognize this should not come before you and you should not be in the uncomfortable decision of having to decide this,” said Joel. “The precedent you are setting here is the precedent of this is not art.”

“The issue being lost here is no one has said you cannot put up a sculpture in the Village of Sag Harbor,” said Thiele, after Duebel noted if a sculpture meets setbacks it is allowed as a structure.

“You have the ability to say this is not a structure,” added Hammer. “You could simply say this is not a structure, it’s art and kick it back to the board of trustees.”

However, not all supported Lehr and Vered, including Jennifer Houser, a former trustee and local businesswoman, who owns two houses facing the “Legs”

“This is not, for me, about art,” she said. “This is about living in the historic district of Sag Harbor and clarifying the codes that have been put in place. Again, this is not about art, but the precedent it sets.”

Houser, who said the “Legs” are illuminated at night, said she believes this has become a business opportunity for Lehr and Vered, and asked the board to uphold the standards of the historic district.

“I think the precedent you might want to consider not setting is censoring art in Sag Harbor,” said resident Duncan Hale, who wondered if he would soon be cited for the stone statue he has in his yard, three-feet from the property line.

“For the future of Sag Harbor and the artistic community, I am concerned there is a fear of what will happen if, God forbid, another person chooses to put another sculpture into their yard,” said artist and businesswoman Elizabeth Dow, who recently purchased the former Sag Harbor Methodist Church which she is converting into her textile design studio. “I believe if someone is to erect some sculpture of a certain size there should be a building permit for safety’s sake.”

However, Dow said with the confusion about the definitions of “art” and “sculpture” it should not be up to this board and they should dismiss it.

Noyac resident Charles McCarron, who owns a neighboring residence to Vered and Lehr, said he opposed the sculpture being lit. He noted that in order to do anything in Sag Harbor Village, including shingle a house, a permit is needed and he questioned why this should be different.

“I don’t know if it is art or not, but I don’t like them and I am a neighbor,” said McCarron. “Jennifer doesn’t like them and she is a neighbor.”

After the hearing, Vered was elated by Hammer’s performance, and said ultimately the application should stand on its own rather than the board choosing otherwise out of concerns for the next application.

“In this country, every decision should stand on its own and is important,” she said. “That is the kind of freedom we want — not to have everyone in one bag and thrown out. This is a beautiful country and everyone is judged by what they have done and not lumped into one place.”



“Legs” Headed Back to Zoning Board

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Homeowners Janet Lehr and Ruth Vered are expected to come before the Sag Harbor Zoning Board of Appeals this February or March. When they do, whether or not the famed Larry Rivers “Legs” striding across their residence on Madison Street should even be subject to zoning will be a question raised by Lehr and Vered’s new attorney, Richard A. Hammer.

Hammer, known locally as Andy, is a Montauk attorney with the firm Biondo and Hammer, and a former East Hampton Town Assistant Attorney, whose law practice focuses on land use and zoning. He was hired by Lehr and Vered to handle their years long case with the Village of Sag Harbor in attempt to keep the Rivers “Legs” sculpture, which has reached almost iconic status in the village, on the side of their home.

According to Sag Harbor Village Attorney Denise Schoen, Hammer has filed an application with the village’s building department that will be referred to the zoning board of appeals.

The applicants, art dealers and collectors who run the Vered Gallery in East Hampton Village, first erected the sculpture in 2008. Then building inspector Al Daniels notified the women the sculpture would need a building permit to remain. Sag Harbor Village Attorney Fred W. Thiele, Jr. also issued an opinion that the sculpture should in fact be deemed a structure under the village code, and therefore would have to meet all the requirements of the village code without relief from the Sag Harbor Village Zoning Board of Appeals.

For over a year, the issue remained unaddressed. Lehr and Vered never filed for a building permit and the “Legs” remained. However, in 2010 when they sought to replace windows and rotting wood, and repaint the historic former church, which they have restored, the Sag Harbor Village Historic Preservation and Architectural Review Board (ARB) revived the debate.

Thiele reaffirmed his position in 2010 that the sculpture should in fact be deemed a structure and called it unreasonable to expect the Village of Sag Harbor to define art, which is what it would have to do to exempt the “Legs” from the zoning code.

In May of 2011, the zoning board of appeals denied Lehr and Vered’s application without prejudice, leaving the door open for them to re-file and argue the case again. After several months, in a letter dated December 23, Lehr and Vered received notice from Sag Harbor Village Building Inspector Tim Platt stating they needed to remove the sculpture from the side of their residence within 30 days or face potential citations from the Village of Sag Harbor.

On Monday, on the 30-day deadline, the “Legs” remained and Schoen said in light of the new application she was unsure whether or not Platt would cite Lehr and Vered or if he would wait to hear the outcome of the zoning board of appeals case.

On Wednesday morning, Platt declined to comment.

In order to comply with village codes for accessory structures, Lehr and Vered would need to gain four variances — one to permit the sculpture to sit a foot from the property line where 35-feet are required, another for the height of the sculpture, which at 16.1-feet is just 1.1-feet higher than allowed by village code, a third to comply with the village’s pyramid law and a fourth that allows an accessory structure in the front yard, illegal under village code.

If approved by the zoning board of appeals, the sculpture would also have to receive a certificate of appropriateness from the Sag Harbor ARB as it has been erected in the historic district.

On Wednesday morning, Hammer said he was just recently retained and was still reviewing the case.

“I would say, at first blush, I feel this is not a zoning related issue and a curious file in terms of how they got in front of the zoning board of appeals,” said Hammer.

“My feeling is the structure is clearly an artistic expression of some form and I am not sure whether or not it should be regulated as a structure from a zoning perspective,” he continued. “I am not sure what distinction makes this different from any other artistic expression, whether that be a fountain or a flag or a plaque.”

Hammer said he would like to hear a well thought out response from the village about what does distinguish the “Legs” from other forms of artistic expression.

“My initial feeling here is by saying it is allowable — but has to meet a setback — is regulating the context of free speech,” said Hammer. “By saying, we think your artistic expression is okay, but we will tell you where it is allowable, now you talking about regulating the context of the structure.”

That being said, Hammer said he hopes that an intelligent dialogue can emerge about the case, and that it should not be a case viewed on whether or not anyone likes the “Legs,” but rather whether Lehr and Vered have the right to express themselves freely.

“I don’t think, looking at the structure, that this is a situation where public health, safety or welfare issues are at hand,” said Hammer, noting it does not impede traffic flow or other issues that would dictate this a question of zoning.

Hammer said the case was interesting because it does involve artistic expression and revolves around a sculpture created by an artist who once lived in Southampton and displayed the first cast of sculpture at his studio, much to the chagrin of River’s neighbors.

“If Jackson Pollock sculptures were displayed in Springs would this be an issue,” wondered Hammer.

No More Legs at Vereds

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By Kathryn G. Menu

After several months of discussion, on Tuesday night the Sag Harbor Village Zoning Board of Appeals officially denied Janet Lehr and Vered’s request for variances to keep the Larry Rivers’ “Legs” sculpture on the side of their Madison Street residence, although they did so without prejudice, meaning a new application could be filed to legalize the sculpture.

However, it is unclear if Lehr and Vered will file a second application. On Wednesday morning, Vered declined to comment on what she plans to do moving forward.

Vered and Lehr’s fight to keep the “Legs” has been an on-and-off debate for over two years, as the Village of Sag Harbor has entertained the couple’s request to legalize the sculpture in the historic district, but not as art, rather as an accessory use.

Without approval from the zoning board of appeals (ZBA), Lehr and Vered must either take the “Legs” down or face continual fines from the village building department.

At the March ZBA meeting, Vered had offered the board a covenant where she and Lehr would agree to remove the “Legs” sculpture in two years time. To reduce the number of variances they would need to keep the “Legs,” Lehr and Vered’s representative Clayton Munsey had previously offered to lower the sculpture reducing its height on the side of the residence, as well as remove a concrete patio in the back of the house to reduce the total lot coverage on the property.

The concept appeared appealing to members of the ZBA, many of whom have been vocal in their concern about the application setting a precedent allowing accessory structures to be constructed on a property line if the “Legs” application was approved. However, village attorney Anthony Tohill said a new application would have to be filed with the board for that plan to be considered.

The vote to deny Lehr and Vered’s application was almost unanimous. Board member Michael Bromberg has recused himself throughout the application from weighing in on the issue.

“Legs May Walk”

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By Kathryn G. Menu

Ruth Vered and Janet Lehr’s quest to keep Larry Rivers’ “Legs” sculpture erected on the side of their Madison Street home may lead to a promise that those “Legs” will do some walking, right out of Sag Harbor Village.

On Tuesday, February 15 representative Clayton Munsey discussed several options for keeping the “Legs” at the couple’s home, the former Bethel Baptist Church in Sag Harbor, including the possibility for a provision that the sculpture’s stay at the residence could include a sunset provision.

Vered and Lehr’s fight to keep the “Legs” has been an on-and-off debate for over two years, as the Village of Sag Harbor entertains the couple’s request to legalize the sculpture in the historic district, but not as art, rather as an accessory use.

On Tuesday, that debate continued, with Munsey offering good faith efforts on the part of the couple to reduce the number of variances they would need to keep the sculpture, which was erected in 2008 without a building permit.

After meeting with Sag Harbor Village Building Inspector Tim Platt, Munsey said Vered and Lehr were willing to offer concessions, including lowering the height the 16-foot sculpture to 15-feet, within village code. The couple would also be willing to remove a concrete extension at the rear of their building to reduce lot coverage to allow the “Legs” to stay.

Two other suggestions — that the sculpture does not need a use variance as the property will remain residential and not change its use, and that Platt suggested the board should approve the setback variance as the residence is pre-existing, non-conforming to zoning laws — were dismissed by Sag Harbor Village Attorney Anthony Tohill.

Tohill said it is not that the property needs a change of use, but that the “Legs” are not typical or customary for a residence in a residential zoning district.

Tohill added that under current law, Vered and Lehr would have a “difficult burden of proof” to gain a use variance for an accessory use like the sculpture.

“They would have to demonstrate they cannot get a reasonable return on their property by not having the “Legs,” he said.

Munsey said he did not believe Vered and Lehr would be amenable to a discussion about a timeframe for their existence at the house.

“So, those ‘Legs’ could be walking,” said Gayle Pickering, chair of the ZBA.

“But if you approve them, they could be relocated to any residential property in the village,” noted Tohill.