Sag Harbor ZBA Hears Schiavoni Building Permit Case

Only the presence of a police officer in the back of the nearly empty meeting room provided any hint that fireworks had been anticipated when the Sag Harbor Zoning Board of Appeals on Tuesday was asked to weigh in on the validity of a building permit issued to David Schiavoni to reconstruct a building his family has owned on Long Island Avenue for decades.

That building permit, issued on October 31 to Schiavoni’s company, VACS Enterprises LLC, has been challenged by developers Adam Potter and Jay Bialsky, who own neighboring properties through limited liability corporations.

They and several other neighboring property owners went to court in mid-October seeking to overturn the building permit. A State Supreme Court justice issued a temporary restraining order and sent the matter back to the ZBA to hear the case.

The dispute has come to symbolize the conflict being played out between longtime local families and outside developers with large bankrolls who have been acquiring property in the village.

ZBA Chairwoman Jeanne Kane said the village had requested that a police officer be present because an overflow, and potentially partisan, crowd was expected. But only Schiavoni, his parents, Gabe and Diane Schiavoni, a friend, Gary Rubertone, and Schiavoni’s lawyer, Alex Brown, were in the audience.

Potter and Bialsky’s attorney, Tiffany Scarlato, attended via Zoom.

Nonetheless, Kane began the hearing by requesting that speakers be civil and respectful.

“I, and the entire ZBA, understand that 31 Long Island Avenue has been both controversial and emotional for many in the village,” she said. “The role of this board is to hear the facts regarding he property, not the individuals.”

The case has revolved around a letter, written by then-village attorney Fred W. Thiele Jr. in 2008, assuring the Schiavoni family that they would be able to rebuild in place and in-kind without the need to go through the review process after they allowed their building to be razed during the environmental remediation that took place at the neighboring National Grid gas ball property.

David Schiavoni, who eventually took over the property, later filed applications first for a three-story building and later a two-story building. Earlier this year, after failing to gain approvals for either of those projects, he withdrew his application and requested a building permit to rebuild.

Scarlato has argued that Thiele did not have the authority to write the letter, and even if he did, it could not be construed as permanent, because, among other things, the zoning has changed several times over the years.

And Scarlato said that former Building Inspector Thomas Preiato, in a letter notifying Schiavoni that he would need variances to proceed with one of his applications, had imposed an April 2018 deadline for the assurances in Thiele’s letter to expire.

In the meantime, she said the village issued the building permit without the approval of the Village Board, which now has authority over large projects in the newly created waterfront overlay district; site-plan approval from the Planning Board; a certificate of appropriateness from the Board of Historic Preservation and Architectural Review; the approval of the Harbor Committee; or a Suffolk County Health Department approval for its wastewater treatment system.

Scarlato later added that Schiavoni’s plans appear to be designed to accommodate a convenience store — more than a year ago, he said he had struck a deal to provide a new location for 7-Eleven — and that fact alone should require a more comprehensive planning process before a permit should be issued.

“Tonight isn’t about whether a property can be rebuilt by a longstanding community family,” she concluded. “It’s about how a permit was granted and, more importantly, the precedent that issuing a permit in that matter sets.”

Schiavoni’s attorney, Kevin Brown of Melville, painted a starkly different picture.

“This is about a property owner’s right to restore a building that lawfully existed before that right was taken away in 2008,” he said. “But for National Grid needing to remediate the property, the building would still be there today.”

The application for a building permit was unique, he said, because the building had been demolished to help clean up a toxic site, and the Schiavoni family “cooperated for the benefit of the entire village so toxic soil could be cleaned up.”

Although the Schiavonis always intended to rebuild, their path was obstructed repeatedly along the way, Brown said, first when the property was rezoned from village business to office district in 2008, and later when it was caught in the moratorium surrounding the creation of the new waterfront overlay district. The property only received an exemption from that moratorium in December 2021, he said.

The family received notice that the property was free of toxins in February 2020, he added, arguing that a three-year limit on restoring an abandoned use should have begun on that date.

Brown also argued that Scarlato was wrong about many of the approvals she had said the building permit required before being approved. He said the building, as proposed, was slightly smaller than what was there previously and did not require Village Board review. Likewise, he said, Suffolk County Health Department approval was not yet needed because the permit is only for a building “shell.” That Health Department approval, along with other approvals, could be applied for after the shell was rebuilt, he said.

Brown dismissed the other arguments Scarlato made, saying, for instance, that his client had the right to correct any mistakes in the building permit application and that her arguments about negative impacts on the surrounding neighborhood were not based on empirical data.

Gary Rubertone, a friend of David Schiavoni, also spoke. Rubertone praised Schiavoni’s family, which he said, had come to Sag Harbor “in the ’40s and built this town. Now the people from the city come out with the money, and they destroy it.”

He said he was at 31 Long Island Avenue with Schiavoni when a property owner from across the street, whom he did not identify, vowed to prevent Schiavoni from rebuilding.

“When I see someone threaten my friend that I’ve known for 40 years and tell him he will keep him in court for as long as he can because he has the money to do it — that’s unfair,” he said.

“I would just like to make one correction,” said Gabe Schiavoni from the audience. “My family has been here 119 years.”

The ZBA agreed to keep the hearing record open until January 4, when it will hold a special work session with Brown and Scarlato at 9 a.m. to review their submissions. The court required the board to make a determination in the case by January 31.