Sag Harbor Village Attorney Charges Fuzzy Math on Ferry

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Designs for the Ferry Road condominium project created by Robert A.M. Stern Architects.
Designs for the Ferry Road condominium project created by Robert A.M. Stern Architects.

Sag-Harbor-1.0

By Douglas Feiden

The definition of “lot area” — in a nutshell, it’s the total horizontal area of a lot — is typically the special province of planners, land-use lawyers and assorted municipal wonks. But it is about to play a huge role in mapping the future of the Sag Harbor waterfront.

And the way in which total lot area is calculated — by subtracting things like easements, rights-of-way and beds of streets — is best understood by those fluent in the village code. But it now figures in determining the size of the luxury condo complex proposed for the parcels at 1, 3 and 5 Ferry Road and 2 West Water Street.

Greystone Property Development Corp. has been striving to develop the 2.33-acre site with a staggered row of eight single-family houses, evoking an imagined 19th-century whaling village streetscape, along with three additional dwellings inserted into the sprawling white, three-story, 1-800-LAWYERS Building.

But those efforts to transform a broad swath of harbor frontage near a showcase village gateway — by constructing 11 residences, 11 private parking garages and 11 private boats slip — were dealt setbacks during the site-plan review process on Monday, May 23, and Tuesday, May 24.

At back-to-back meetings of the Harbor Committee and Planning Board respectively, Denise Schoen, a Sag Harbor Village attorney who represents both boards, offered a legal primer in both lot area and what the code says about calculating it, and it all boiled down to this:

There has been a “miscalculation of lot area” on the part of the applicant, and as a result, the project could “change dramatically,” she told both boards. That means, without zoning relief, it might not be permissible to build all of the planned 11 residential units.

Here’s how it works and why it matters. “To calculate lot area, you take the overall perimeter of the property and subtract beaches, wetlands, beds of streets, rights of ways, easements and underwater land,” Ms. Schoen told the Planning Board.

But her interpretation of documentation presented by Greystone, which she reviewed with Tom Preiato, the village’s senior building inspector, indicated that only underwater land had been deducted.

In other words, the applicant took its overall perimeter area, which is 84,570 square feet, and subtracted the underwater land, reducing the tally by 3,466 square feet, she said. Based on that figure, the developer proposed 11 units. However, the applicant failed to do enough subtracting, the attorney argued.

“When you read the definition in the code, there are several other factors that have to be factored in with regard to calculating lot area on this parcel,” she said.

For instance, the entire roadbed of the old State Route 114 on the property’s north side would have to be deducted, and so would the easement and right of way that runs between La Superica and 7-Eleven, as well as beach areas fronting the property, Ms. Schoen said.

Since these three areas haven’t been properly subtracted, it could have an impact on the proposed “yield,” which she defined as the number of units available to the developer as a matter of right without seeking zoning relief.

Ms. Schoen said she didn’t have enough data to calculate what the reduction of the yield, or number of units, would be. But she called it as a “big hit.”

“That’s the number-one issue that could dramatically change the project and will have to be addressed first,” she told the Planning Board on Tuesday night.

Presiding over the meeting, Greg Ferraris, the board’s chairman, said, “We should request from the applicant an updated survey to include the metes and bounds of those three areas with an updated lot area and unit calculation.”

Greystone’s representatives at the Planning meeting made it clear that they were keeping their powder dry, for now. “We’ll address all these issues as we go forward,” said Dennis Downes, the Sag Harbor attorney who represents the developer.

Added Marwa Fawaz, a planner at VHB Engineering and Surveying, a consultant to Greystone on the project, “We haven’t received written comments, and once we receive comments in writing, we’ll consult with the client and respond.”

At the Harbor Committee meeting the night before, where Ms. Schoen had made a similar presentation, Mr. Downes gave a brief preview of how Greystone might respond to the issue of lot area and the related calculations stemming from lot area.

“My position is that we’re grandfathered in, and it’s exempt,” he said, adding that the site conditions “existed prior to the definition of lot area.”

A Greystone spokeswoman at the firm’s Manhattan headquarters didn’t immediately offer comment beyond those remarks.

The discussion of shoehorning the 11 condo units, designed by architect Robert A.M. Stern, into the long-derelict site came as the village continues to press efforts to acquire or condemn the entire property for its proposed John Steinbeck Waterfront Park.

At the same time, the Sag Harbor Partnership is unveiling plans for a July 10 benefit on the Long Wharf it hopes will raise at least $50,000 to support the park. Organizers say the funds are being earmarked for the 0.7-acre parcel on the east side of the site the Village already owns.

Meanwhile, in her twin presentations, Ms. Schoen made two other key points about the proposed development:

Jurisdiction

Greystone has argued that the Harbor Committee’s jurisdiction, normally extending 150 feet from a wetlands, is limited because of a clause in the village wetlands law that says lands separated from wetlands by a paved road are exempt from committee purview. Mr. Downes cites old State Route 114 on the parcel’s north rim, saying it cuts off jurisdiction to the south.

“I disagree,” Ms. Schoen says. “Exemption is not absolute.”

She says the rationale in the law for the cut-off is when a clear physical barrier exists between a project and wetlands located across the street.

“If my house was across the street from a wetland, I would be exempt from that wetland, but not from a wetland that’s located immediately adjacent to my house,” she said. “The problem here is that you have wetlands that are not across the street.”

She argues that a line drawn by the developer wrongly extends the exempt area: “There may be a small area out of jurisdiction,” Ms. Schoen said. “But it’s not going to be the entire condo complex. It’s not even close to the entire condo complex.”

Front Yards and Backyards.

The 1-800-LAWYERS Building isn’t defined as a waterfront parcel now. But when it’s merged with the other lots, it will become one, and at that point, its front yard technically becomes its backyard and its backyard becomes its front yard, she said.

In other words, the building as viewed from the street would actually be its rear yard, and setbacks requirements for a front yard differ from those for a rear yard.

“When the lot lines flip, it looks like the building may become non-compliant with respect to setbacks,” Ms. Schoen said. “In order to merge the properties and leave the building where it is, a variance will likely be required.”

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