Tag Archive | "Sag Harbor Village Zoning Board of Appeals"

Sag Harbor ZBA Zooms in on Harbor Market

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Market web DSC_0153

The Sag Harbor Village Zoning Board of Appeals has begun its review of the new Harbor Market & Kitchen.


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.”


Lehr & Vered Sue Sag Harbor Village Over “Legs” Sculpture

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Heller_Vered Legs Sculpture Illuminated at Night 6-18-12_5447

When Janet Lehr and Ruth Vered revived their battle in 2010 to keep Larry Rivers’ sculpture, “Legs,” planted next to their home on Madison Street in Sag Harbor, anyone who knew the proprietors of East Hampton’s Vered Art Gallery knew they would not give up a fight to defend what they view as their right to display art.

Earlier this month, they proved just that.

On June 5, Lehr and Vered’s attorney, Stephen Grossman, filed an Article 78 against the Sag Harbor Village Zoning Board of Appeals contesting that board’s April decision to not grant Lehr and Vered variances. Those variances were needed to legalize the 16-foot sculpture, which was erected next to their home in 2008.

It was in 2008 that village officials ruled Lehr and Vered needed a building permit to display “Legs”  alongside their home, the former Bethel Baptist Church on Madison Street in the historic district of Sag Harbor. For almost two years the “Legs” went unnoticed. Then a member of the village’s historic preservation and architectural review board (ARB) pursued the matter after Vered applied to that board for a certificate of occupancy to repaint the historic residence.

According to Sag Harbor Village Building Inspector Tim Platt, the “Legs” are viewed as a “structure” under the village code. There is no provision exempting art from village law and as a structure Lehr and Vered needed four variances, including one that would allow an accessory structure one-foot from the property line where 35-feet is required.

In its decision, the zoning board of appeals cited a Southold court case Miller vs. Price, where that town decided 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.

The ZBA refused to entertain any arguments that the “Legs” should be exempt from the code as it is art, noting it did not believe art should be legislated. Their decision also noted allowing a structure a foot from the property line was not a precedent they wished to set and that neighbors “vehemently” apposed the application.

The decision also states 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.

The board did agree to allow Lehr and Vered to keep the “Legs” through the summer, until September 15, however, it stipulated Lehr and Vered must remove nighttime lighting as it was one of the issues neighbors have with the sculpture.

While the decision was levied in April, as of this week, the sculpture still remained lit at night, although on Monday, Sag Harbor Village Attorney Denise Schoen said the building department was in the process of filing charges regarding the lights.

When those charges would actually be levied, Schoen was unsure.

In Lehr and Vered’s lawsuit, Grossman argues the village cited the case of Miller vs. Price in error, as that case had less to do with a municipality defining art as a “structure” and more to do with a plaintiff failing to exhaust all other remedies before seeking a decision by the court.

“If in fact the sculpture is not a structure then the Board had and does not have any jurisdiction in this matter and it is Petitioner’s contention that both the decisions of the Building Inspector and the Board in this regard are arbitrary, capricious, unreasonable and illegal in all respects,” writes Grossman.

He also argues the board ignored relevant facts and other evidence submitted into the record, “relied on self serving statements of fact and conclusions” and that it contradicted itself in determining the sculpture would not have a substantial impact on the physical and environmental conditions of the neighborhood, but would cause an undesirable change in the neighborhood.

Grossman also argues, given the size of the lot Lehr and Vered own, it was unreasonable for the board to suggest they could move the “Legs” elsewhere.

Lehr and Vered are asking the court to annul the ZBA’s decision, as well as their decision to uphold Platt’s determination that the “sculpture” is a “structure.”

According to Sag Harbor Mayor Brian Gilbride, village attorney Denis Schoen will handle the case for the ZBA. Schoen has until July 5 to review the case and respond to the court.

“This is not an issue of zoning, but a case where people just didn’t like it,” said Grossman in a phone interview on Monday. “I think the board acted inappropriately and my clients could win.”