Martha Moves Fast

The trees are gone, but the lawsuit will continue.

On Friday morning, after months of hearings, Martha Stewart received permission from the East Hampton Village Zoning Board of Appeals to remove or prune 14 shrubs and trees installed on a disputed property line by her Georgica Close neighbor, Harry Macklowe, and to dismantle associated wiring and lighting.

Fifteen minutes after the board passed the resolution, despite a last-minute restraining order, some of the trees were no more.

An Appellate Division judge, Fred T. Santucci, had issued the order that same morning. The judge's office faxed it to the Water Mill office of Michael Walsh, Mr. Macklowe's attorney, which faxed it on to the Macklowe residence.

Immediate Removal

Too late. When Mr. Walsh, who had been at the Z.B.A. meeting, delivered it at the site, "20 people were busy ripping out trees," he said.

East Hampton Village Police reported a call at 11:39 a.m. from Don Bousson, a caretaker for Mr. Macklowe, complaining that cutting had begun. Police said the official notice to desist had been given by the time they arrived.

Ms. Stewart claims as hers the wetland on the boundary of the two properties, near where the trees were planted. On Friday, the Z.B.A. agreed with her.

Mr. Macklowe challenged the claim in State Supreme Court last month, but his request for a preliminary injunction was denied.

Appeal Filed

On Friday, Mr. Macklowe's lawyers filed an appeal, which produced the temporary restraining order, although it was "rendered moot," noted Leonard Ackerman, Ms. Stewart's attorney, by the immediate removal of the trees.

"We will continue to defend this lawsuit," said Mr. Ackerman on Monday. "I did not realize until Friday afternoon that Mr. Walsh had been to the appellate court."

Mr. Walsh criticized Gene Cross, the village planning consultant, during the board meeting before heading off to the site. Mr. Cross had assured the Z.B.A. that he had visited the Stewart property to approve the "flagging" of the trees involved as "consistent with the resolution."

Advance Flagging

Mr. Cross said yesterday that Ms. Stewart's landscapers and environmental consultants had flagged the site on Nov. 6 and that the Z.B.A. had asked him to determine that the approved plantings were flagged.

"Anticipating activity after [Friday's] meeting, and knowing that I was responsible" for the removal of the right plantings, he said he visited the site at about 10 a.m. on Friday. The Z.B.A. passed its enabling resolution shortly after 11.

"Mr. Cross had prior knowledge" of the board's action, Mr. Walsh said. Otherwise, "how would he have known if the flagging was consistent with the resolution if the resolution hadn't been passed yet?" The lawyer apparently felt that had the flagging not been okayed in advance, the restraining order would have arrived in time to prevent the tree-cutting.

The Z.B.A. voted unanimously to grant Ms. Stewart permission to renovate her main house, retaining its original footprint, to renovate a studio, to install a 10-by-60-foot lap pool, four feet deep, and to install three patios of cobblestone and brick set in sand. A request for a cantilevered deck was denied.

Counterclaim

William Johnson, the Z.B.A. chairman, observed that Ms. Stewart "wishes to preserve and protect Georgica Pond and surrounding wetlands."

Ms. Stewart's applications were filed under the name of Travertine Corporation; Mr. Macklowe's, under KAM Hampton I Realty Corporation.

Mr. Walsh said he expected a decision on Friday's appeal by Thanksgiving. Ms. Stewart, meanwhile, has counterclaims pending against Mr. Macklowe, including a suit charging the real estate developer with trespassing.

On Friday, Nov. 22, the Z.B.A. will hold another hearing in the case. Mr. Macklowe has appealed the village building inspector's April 23 issuance of a certificate of occupancy to Ms. Stewart.

No To Home Office

In other action Friday, the Z.B.A. denied Edward Barlow's request to build a garage containing a home office onto his nearly century-old Lee Avenue house.

Mr. Barlow, who owns community newspapers in Maryland, Virginia, and Delaware and operates broadcasting companies as well, told the board he works by telephone and fax "here more than in New York." He has owned the house since 1980.

William Buckley, a neighbor, objected, noting that his house was "only 60 feet behind the 20-foot hedge which he has allowed to grow to conceal what they plan to build."

The required side-yard setback is 25 feet. Mr. Barlow had asked the board for a variance allowing him to build within 16.5 feet of his neighbor.

"Build Elsewhere"

"I'm sorry to talk this way, Ed," Mr. Buckley said, "but if there's going to be an ordinance let's maintain it."

Joan Denny, a board member, agreed with Mr. Buckley, saying there was "enough area" to build elsewhere.

In another case, the board agreed to allow Candace Phillips to keep 30 feet of an existing lawn behind her house near Briar Patch Road.

A permit granted in 1989 required a scenic easement extending about 80 feet from the edge of a wetland, with a "no-mow zone" of about 60 feet. Within that zone, said Mrs. Phillips, a lawn was "inadvertently" created.

Monitor Plantings

The board directed that part of the lawn within the scenic easement be revegetated with indigenous plant-ings, leaving a modest buffer zone between the wetland and the remaining lawn.

"I'd like to see no fertilizers applied to the 30 feet of lawn," cautioned Mrs. Denny.

The board asked Mr. Cross to monitor the plantings.

Besides Mr. Macklowe's appeal on Friday, Nov. 22, the Z.B.A. will reconsider Peter Wolf's application for a freshwater wetlands permit and variances to allow him to modify a "teahouse" on his property on a private road off Briar Patch Road. Among other things, Mr. Wolf, a land-planning consultant, seeks to add a roof and replace an existing ramp with a step and deck. The board denied a previous application, citing potential damage to the wetlands.

Icahn Case

The board also will hear from Nathan Halpern, who is appealing the coastal erosion permit that enabled Carl Icahn to build a concrete patio on a dune in front of his Nichols Lane residence. The village building inspector granted the permit for the patio, which lies within the erosion hazard area.

A third continuing case is that of Marion and Louis Edwards, who want to subdivide their land on Main Street and Fithian Lane, nearly two acres, into four parcels. They need a variance to allow a second residential structure on the lot - a barn that is being renovated - to stay there until the subdivision is completed.

The hearings will start at 11 a.m. at the Emergency Services Building on Cedar Street.