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.”