By Stephen J. Kotz
The top-to-bottom review of the proposed Harbor Market & Kitchen continued on Thursday, February 26, when the matter was taken up by the Sag Harbor Village Zoning Board of Appeals.
This time the focus was on the bottom—specifically the basement—of the former Espresso Market at the corner of Division and Henry streets and whether changes proposed to it constitute the expansion of a commercial use in a residentially zoned neighborhood.
Eric Bregman, the attorney for the market’s owners, Paul and Susana Del Favero, insisted they did not, while Jeffrey Bragman, the attorney representing a group of neighbors, argued the opposite position, with both men taking the occasional verbal swipe at their opponent.
After listening to well over an hour of testimony, an obviously frustrated ZBA, whose members asked the attorneys to wrap up their arguments, voted to adjourn the hearing until March 17.
It was the second time the market was placed under the microscope this week. On Monday, the village Board of Historic Preservation and Architectural Review focused on the roof of the building, where the appearance of new heating and air conditioning units, has provoked an outcry among neighbors who say it is ugly and noise from various compressors and other equipment will disturb their peace and quiet.
Although the Del Faveros had already received ARB approval for the renovation of the building, they agreed to come back this week to discuss screening the rooftop equipment after neighbors complained and the ARB said it had not known the extent of the changes proposed for the roof.
In his presentation on Thursday, the Del Faveros’ attorney, Mr. Bregman, said that the village had already issued a building permit for a series of changes to the interior of the first floor, but that building inspector Thomas Preiato had declined to sign off on the movement to the basement of some food preparation equipment, including a sink and oven, pending a ZBA ruling on whether or not such changes represented an expansion of a commercial use.
Mr. Bregman said the basement had been used for food preparation since the building housed Federico’s market back in the 1970s.
“If you add a refrigerator, that doesn’t change the use or expand the use. If you have an espresso machine that doesn’t change the use or expand the use,” Mr. Bregman said.
ZBA members seemed to agree with that line of reasoning. “Making your business more successful doesn’t mean you are expanding a nonconforming use,” said the board’s attorney, Denise Schoen.
The second variance request is for the use of a plan to expand the basement of the building by 28 square feet by rebuilding and putting a ceiling over a walled-in pit that is under a deck on the side of the building, so a bathroom can be moved into it and an office expanded.
Although Mr. Bregman said “there is no other economically viable use for that area other than what is proposed,” Ms. Schoen countered that it was still an expansion of the building’s square footage and she would recommend that the ZBA treat it as a request for a use variance.
Speaking on behalf of the neighbors, Mr. Bragman agreed with Ms. Schoen that the basement expansion should require a use variance, but he added that in deciding whether the commercial use was being expanded, the ZBA needed to determine whether more floor area was being used for it. He said adding equipment to the basement was, indeed, an expansion.
Although the ZBA said it would not weigh in on the rooftop equipment, Mr. Bragman said it was germane to the application. “Placing all the mechanicals on the roof is a dramatic change of use,” he said. “I think logic suggests the reason they put the equipment on the roof was so they could get more space inside the building.”
As he did at the ARB meeting, Mr. Bregman again accused Mr. Bragman of wrongly suggesting that the Del Faveros acted in bad faith. “These people are completely cooperating” with the village, he said, “and this innuendo is what you do when you don’t have a case.”
“I’m telling you the narrative the counsel just gave you is a fantasy,” replied Mr. Bragman.
“These applicants owe this village a big-time explanation of what is going on inside that building,” Mr. Bragman said. When they appeared before the ARB, “they did not talk about the 800-pound gorilla in the room, the equipment on the roof.”
“This is a very dangerous precedent for this board. It holds the possibility that anyone who has a flat roofed building can up stuff up there and expand their use,” he said.
Douglas Moyer, the architect for the project, had the last word. “I just want to say that the previous comments are very unnerving,” he said of Mr. Bragman’s criticism, insisting once again that all work approved was included in plans he submitted with the application. “There was no attempt at deception,” he said. “I live in Sag Harbor too, and I plan to for a long time.”