Judge Initially Sides With Property Owner In Challenge To Sag Harbor Village's New Zoning Rules

A State Supreme Court justice last week issued a temporary restraining order prohibiting Sag Harbor Village from applying new zoning amendments to one homeowner’s property, on Bluff Point Road.

The homeowner, Marius Fortelni, also has sued the village for adopting “illegal moratoriums and refusing to vote on his application,” according to Alex Kriegsman, his attorney.

Mr. Fortelni has tried for more than a decade to demolish a 1,200-square-foot home and build a new 5,000-square-foot house on about a half acre. Mr. Kriegsman said the village’s regulatory boards delayed a vote on his application until it was stuck in a 2013 moratorium on developing properties that include wetlands and last summer’s moratorium on new construction, both of which have now ended.

“We believe the village is retaliating against him for speaking out and asking questions about how much public money is being spent,” said Mr. Kriegsman, whose client has asked how much the village spent on drafting the zoning amendments.

At a hearing on June 8, the village will have to prove that the TRO, which was signed by State Supreme Court Justice Gerard Asher on Friday, should not be made permanent.

“Judge Asher, having been involved in all the other lawsuits against the village, knows that these laws are illegal and that there is a likelihood that we are going to succeed,” Mr. Kriegsman said, referring to three cases the village settled with property owners earlier this year. Two of the property owners had filed lawsuits alleging that the Board of Historic Preservation and Architectural Review had purposely dragged its feet on their applications, giving the Village Board time to adopt the six-month moratorium on all construction last summer.

“State law is pretty clear that if you, as a municipality, if you do something illegal and that illegal act forces a homeowner into a new, more restrictive zoning code, that homeowner is entitled to the previous zoning code,” Mr. Kriegsman said, arguing that the most recent moratorium was illegal because it was never filed with the Suffolk County Planning Commission, a step which is required.

“I don’t understand it, because [Mr. Fortelni] has never applied for anything while I’ve been working, and he never came before us other than to demand, or talking about, who is getting paid what at meetings,” said Sag Harbor Village Mayor Sandra Schroeder. “He didn’t file for an exemption from the moratorium. So I just don’t get this. I am pretty bewildered.”

While Village Trustee Ken O’Donnell said he was not yet aware of the TRO last week, he said it did not surprise him. “He has come off as very litigious from the beginning,” he said of Mr. Fortelni. “You have individuals who are trying to make a claim for square footage before, claiming that they were in the process before the new square footage law and building code came into effect, and are going to be looking to make a claim to the old code.”

Mr. Fortelni purchased his home, near Upper Sag Harbor Cove, in 2002. In 2005, he attempted to apply to the Harbor Committee for a wetlands permit, which is required because the proposed construction would have been a few hundred feet away from tidal water, and was told to revise his application to show where equipment would be located—which he said he did. According to the suit, he ended up reapplying to the Harbor Committee twice, in October 2010 and June 2011, for a wetlands permit after no action was taken on his application.

In October 2013, he applied to the zoning board for variances from setbacks from the wetland boundary and side yard, and his application was tabled until March 2014, when the ZBA requested a recommendation from the Harbor Committee.

The Harbor Committee failed to provide the recommendation in May 2014, and in August that year, the committee discussed and adjourned the application again—“in bad faith, so that the petitioner’s application would be caught in the wetlands moratorium next month,” the suit alleges.

The application was also caught in the recent building moratorium after he applied to the Harbor Committee for a fourth time, and the application was tabled again.

The house he wants would not be permitted without a special exception permit under the new house size limits, which cap homes at 4,000 square feet on lots of 25,000 square feet and more.

“It is amazing to me that the village is not settling this case,” Mr. Kriegsman said.

Village Attorney David J. Gilmartin Jr. said this week that he does not comment on ongoing litigation.