Neighbors have logged complaints about the HVAC system on top of the new Harbor Market & Kitchen. Photo by Stephen J. Kotz.
By Stephen J. Kotz
Wrangling over the Harbor Market & Kitchen, whose owners, Paul and Susana Del Favero, have hoped to open in the former Espresso market this spring, continued before the Sag Harbor Village Board this week with little hope for a quick solution.
The ZBA devoted much of a Monday morning work session to the application as well as a major portion of a Tuesday meeting that stretched on for more than four hours before the board called it a night.
The property, at the corner of Division and Henry streets, is owned by 184 Division Street Realty LLC and Abbey Warsh, who have asked the ZBA to rule on whether plans for the market represent the expansion of a commercial use in a residential zone, which would require a use variance. A use variance requires an applicant to meet a higher standard than is typically required for a dimensional variance.
Eric Bregman, the market’s attorney, has argued that plans to move equipment, including an oven and sink, from the first floor to the basement, do not constitute an expansion and should be allowed without a variance.
Meanwhile, Jeffrey Bragman, the attorney representing a group of neighbors, has taken the opposite side of the argument and tried to convince the ZBA that it also has to take into account the movement of a large amount of mechanical equipment to the roof, even though that is not specifically included in the variance application.
The rooftop equipment has set off a storm of opposition from neighbors who say it is ugly and will disturb their peace and quiet, once all the heating and air conditioning units and various vents and exhaust fans start to work.
Although the village’s Board of Historic Preservation and Architectural Review signed off on the plans, the Del Faveros and their architect, Douglas Moyer, in a bid to mend fences with the neighbors, returned to the ARB last month, seeking permission to screen the equipment. But ARB chairman Cee Scott Brown chastised them for failing to inform the board of the extent of their plans. As a result, the ARB has required they bring in a sound engineer to weigh in on how the equipment’s noise can be reduced by that screening.
At Monday’s work session, ZBA member Scott Baker, an architect himself, raised the issue of whether the rooftop equipment, screened or not, will require a separate variance from the village’s pyramid law, which regulates the height of a building based on its distance from the property line.
For now, though, the ZBA is focusing on the single variance before it, with village attorney Denise Schoen saying the board should rely on case law to guide its interpretation.
A separate variance request to extend a wall to provide an additional 28 square feet of space in the basement to expand a basement office was withdrawn this week after Ms. Schoen said, however small, any expansion of the size of the building would require another use variance.
On Tuesday night, Mr. Bregman argued once again that “modernizing or putting in new equipment is not extending the use,” a viewpoint seemingly shared by Ms. Schoen, who said a similar argument was brought up when the ZBA reviewed the Harbor Heights gas station application.
Mr. Bragman, though, was quick to counter, saying basement storage area is not included in a business’s gross floor area, but if it is converted for food preparation, it must be included in those calculations.
He gave the board an affidavit from the former owner of Espresso, who said the basement had been used for storage only from the time they purchased the building in 2008 until they sold it in 2014, which Mr. Bragman said would show that any former use for food preparation had been long abandoned.
Although the ZBA was technically only considering the question of whether the basement could be used for food preparation, Mr. Bragman said it could lose sight of the bigger picture.
He said mechanical equipment had been moved from the basement to the roof, so the basement could be used for a bakery and other business uses.
“The equipment on the roof is related to what they are doing in the building,” he said. “In order for you to examine what is involved in the extension of the use, you need to which equipment is needed and what on that roof.”