Nov 17, 2015 3:46 PM

The controversial Larry Rivers “Legs” sculpture must come down, according to a new court ruling.

After a legal battle stretching back several years, it appears the Village of Sag Harbor will finally get its way, thanks to a recent decision by State Supreme Court Justice James Hudson. The decision states that the village’s Zoning Board of Appeals in 2012 “properly found that the sculpture was a structure” and was therefore subject to the same regulations as a structure under the zoning code.

The decision notes that it is not the job of the court to determine whether a determination was correct, but that it is its duty to find a “rational basis” for the ZBA decision and to ensure it was not “arbitrary or capricious.”

The judge found that both the zoning board and the building inspector did, in fact, interpret the village zoning code on a rational basis such that “their decisions should not be disturbed.”

Ruth Vered and Janet Lehr, the owners of the 16-foot-tall fiberglass sculpture of a pair of female legs by the artist Mr. Rivers, had it installed on their corner property on Madison Street, which is in the historic district, without a building permit in 2008. Many nearby property owners were opposed to the sculpture because of its size and location, although Ms. Vered said this week that those property owners have since sold their houses.

In 2012, the zoning board denied numerous variance requests on the part of the owners, including one that would have legalized the 
“Legs” and allowed them to stay on the property, just 1 foot from the property line, where the code requires a 35-foot setback.

The attorney for Ms. Vered and Ms. Lehr, Stephen Grossman, argued that the sculpture was solely a work of art and thus the zoning code should not apply to it.

However, the court’s decision states that the ZBA does not have the authority to determine what is art. “That is a question philosophers from Plato to Arthur Danto have debated, and is best left to their province,” the decision reads. Nevertheless, the ZBA in 2012 received more than 400 signatures, as well as letters and emails, from people who argued that the sculpture was in fact a work of art.

On Monday, Ms. Vered said that “every newspaper,” including The Wall Street Journal and The New York Times, supported the sculpture as art and as a form of expression covered under the First Amendment of the Constitution. “He should be supporting freedom of speech and the right of expression, and he is going against the American law, the American rules,” Ms. Vered said in response to the justice’s decision. “The freedom of expression is a part of our constitution, and he should know it better than I do.”

Yet Justice Hudson’s decision claims that Ms. Vered and Ms. Lehr did not establish that the ZBA had violated their civil rights—specifically the right to free speech and expression—by its interpretation of the zoning code and the application of it to the sculpture.

The decision further notes that the zoning code was found to be content-neutral, because all structures in the village are treated the same. According to the Constitution, content-neutral laws are allowed to restrict the “time, place and manner” of speech, as long as they are “narrowly tailored” and serve a “significant governmental interest.” The information itself, or its expression—in this case, the sculpture—had not been restricted, only the way it was communicated, as the issue at hand for the ZBA was that the sculpture was placed in an inappropriate location, the judge found. The significant governmental interest here is said to be to “control the orderly and appropriate placement of structures within the village,” he said.

Ms. Vered said she is not done fighting and she will do “everything” she can to keep the sculpture standing.

“Hopefully, they will come down voluntarily,” Village Attorney Fred W. Thiele Jr., said of the “Legs.” “If not, the village could bring an enforcement action.”