ZBA Will Reject Height Variance for House at 11 Carver Street

The house at 11 Carver Street that Mark Madden wants two extend upward more than 5,000 cubic feet. Peter Boody photo

A month after his attorney defiantly threw out compromises hammered out over the past year, the Sag Harbor Zoning Board of Appeals on Tuesday unanimously agreed to reject Mark Madden’s controversial application for a height variance to allow a modest house at 11 Carver Street on Chatfield’s Hill to be renovated in a way that would penetrate the pyramid law’s “sky plane” by 5,238 cubic feet. The board agreed to grant variances only to clear the way for a proposed pool and garage.

After chairman Tim McGuire called for modifications to reduce or eliminate the need for off-street parking variances, the board also on Tuesday debated how to define the “degree of non-conformity” of the Schiavoni family’s proposed two-story retail and office building to be erected on the vacant parcel south of the post office at 31 Long Island Avenue. The building will replace an aged one-story retail structure that was demolished by National Grid to clear the way for a soil decontamination project that has now been completed.

Also on Tuesday, the board rejected Barbara S. Ainsley’s application to legalize a retaining wall that was built at 9 Palmer Terrace without a permit and in violation of side and rear-yard setback requirements.

In the Madden case, which has sparked opposition from neighbors, Mr. McGuire made a point of refuting attorney Alex Kriegsman’s assertion last month that the panel had granted sky plane variances at 47 Terry Drive and 27 Harding Terrace as large as the one his client was requesting. Ignoring Mr. Kriegsman’s objections, Mr. McGuire read a statement noting differences in those cases that made them irrelevant or not comparable to 11 Carver Street.

“It’s clear you’re more concerned with public pressure than New York State law,” Mr. Kriegsman said as he was leaving the meeting room after the board voted 5-0 to have its attorney draft a denial for the height variance while granting variances to allow a pool and garage in the front yard of the unusually narrow parcel.

Last month, Mr. Kriegsman — apparently accepting the prospect of a lawsuit to reverse the board’s likely “no” vote — stunned the panel by announcing that his client wanted to throw out height reductions he’d negotiated with the board a year ago and revert to his original application.

“I find it disturbing being asked to talk to the neighbors rather than consider New York State law and the village code,” Mr. Kriegsman told the board at its September meeting. It wasn’t “reasonable, feasible or appropriate,” he said, adding later it was “illegal for us to be told we have to get input from neighbors.”

Board member Susan Mead, explaining her view of the case on Tuesday, said the proposed renovation “will create an undesirable change” in the neighborhood, that there were alternatives already explored that did not require such a large variance, and that any hardship was self-created because “there was another solution. Unfortunately, it was withdrawn.”

During the continued hearing on the VACS Enterprises application on Tuesday, Mr. McGuire told the Schiavonis’ attorney, Dennis Downes, that the need for a variance for 10 off-street parking space was “symbolic of the non-conformity increase” that the new retail and office structure will create. He noted that the old building contained 4,300 square feet in one story; the proposed structure will contain more than 10,000 square feet on two floors.

“If you can make an effort to adjust the building so the need for 10 spaces is lessened or reduced,” he said, the board would be more likely to look favorably on the application under the terms of a policy letter drafted by then-village attorney Fred W. Thiele Jr. in 2008, before National Grid demolished the former structure.

Mr. Thiele wrote that the Schiavonis would be entitled to “an in-kind replacement of the building and use … In short, they may construct an identical replacement of the building and retail uses without any additional approvals from the village.”

But the fact that part of the property has been rezoned from village business to office district has complicated the issue, Mr. Downes said. He also argued that the zoning code allows a second floor “as a matter of right” so it will not increase the proposal’s degree of non-conformity over the original structure. The only increase in non-conformity, he argued, will be an additional 450 square feet or so of floor area in the structure’s footprint.

“Let our attorney talk to the building inspector,” said Ms. Mead, for direction on how to interpret the code and the circumstances, as well as case law. As the board’s attorney, Elizabeth Vail, put it, “We need to know locally how the building inspector handles” the question of adding a second floor on what had been a non-conforming structure.

In addition to rejecting the Ainsley application for variances to legalize a retaining wall that was built without a permit, the board also agreed to reject variances in another case intended to legalize structures erected with no permit: a deck and an 8-foot-fence that were put in the waterside front yard at 18 Bluff Point Road. The board said it would allow a 4-foot fence but not the 6-foot fence the applicant, listed only as “McGuire” on the meeting agenda, offered to have by reducing the height of the 8-foot fence there now.