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Tuesday, August 26, 2014 at 6:15 pm

Frost Ridge case attorneys wrangle with witnesses over what they knew and when they knew it

post by Howard B. Owens in business, frost ride, Le Roy, zoning

Marney Cleere, one of the co-plaintiffs in the pair of lawsuits filed against Frost Ridge over alleged zoning violations and live music at the venue, spent a lot of time on the witness stand today.

Cleere was called to testify in a hearing aimed at establishing when the statute of limitations' clock started ticking on a Le Roy Zoning of Board of Appeals determination that all activities at Frost Ridge are "grandfathered in," and whether that ZBA determination was made properly.

David Roach, the attorney Frost Ridge, and the campground's owners, Greg and David Luetticke-Archbell, called Cleere to try and establish what the Oatka Trails Road resident knew about the Sept. 25 ZBA decision and the day she knew it.

If she knew about it before April 8, it could mean there is evidence to establish that her and her co-plaintiffs did not file their complaint in a timely fashion. Depending on how Noonan interprets the law and case law, that could mean at least a portion of their suit against Frost Ridge could be thrown out of court.

Cleere testified today that she received a copy of the minutes from the Sept. 25, 2013 ZBA meeting on March 26, 2014.

Getting that admission from Cleere took dozens and dozens of questions from Roach and attorney Karl Essler, representing the ZBA, which is a co-defendant in the Cleere/Collins lawsuit.

Frost Ridge is also being sued by the Town of Le Roy.

Roach started his questioning by establishing that Cleere had an e-mail address with a username and password that only she could access.

He then showed her an e-mail from Patty Canfield, the Le Roy town clerk, to her e-mail address.  

Cleere never admitted to having previously seen the e-mail, but said she couldn't say that her e-mail account was hacked or that the e-mail could be fraudulent.

Once, when asked by Roach if the e-mail was sent to her, she responded: "It has my e-mail address on it, yes."

The e-mail is from early October.

It appears to have had three attachments (not included with the printed e-mail used as evidence). Those attachments were supposedly the ZBA minutes from June 11, July 23 and Aug. 27.

Roach quoted Canfield as writing, "I believe they will approve Sept. 25. minutes at next meeting."

Asked if the e-mail from Canfield was in response from Cleere for a copy of the Sept. 25 meeting minutes, Cleere said she would have to review her e-mails to answer the question.

She had no recollection of requesting those specific minutes from the town.

Later in her testimony, Cleere said she didn't request them until March because she didn't know that the minutes existed nor that Frost Ridge was discussed at the Sept. 25 ZBA meeting. Her request was prompted by communications with attorneys from both sides of the dispute, according to her testimony.

Asked several times in different ways if she took any action between October and March to obtain a copy of the Sept. 25 meeting minutes, Cleere responded, "I didn't know of that meeting, so what would have caused me to request those minutes?"

She obtained the copy of the Sept. 25 minutes from Code Enforcement Officer Jeff Steinbrenner, who, according to testimony by himself and other prior witnesses, kept all the minutes in a file in his office.

Cleere also testified -- while being questioned by her attorney Mindy Zoghlin -- that she became angry when she learned about the Sept. 25 meeting in March.

"Obviously, we were furious that we weren't made aware of this meeting," Cleere said. "We didn't understand why we weren't made aware of this, why it took six months."

Cleere said the package of material she received from Steinbrenner contained no application from Frost Ridge, no supporting documents and no notice of public hearing.

Part of what Zoghlin is trying to establish is that the ZBA's determination lacked jurisdictional validity. 

If she can show that the ZBA acted outside the scope of the law, the Sept. 25 determination would be meaningless and, potentially, the statute of limitations question becomes moot.

Zoghlin spent a lot of time today questioning David Luetticke-Archbell about his interpretation of communications from the town, what they meant, what he understood and what he believed, all in an effort to draw a distinction between the campsite zoning issues at Frost Ridge and the issue of live music.

Zoghlin argued that the zoning issues and the music issue are completely separate issues. The zoning issues, according to her, require a zoning variance, while the live music issue requires an area variance, a use variance or a special-use permit.  

If the ZBA wasn't considering live music at its Sept. 25 meeting (and Board Chair Debbie Jackett testified clearly that it did), then the ZBA determination is reduced to only a consideration of campsite placement and use.

As Zoghlin repeatedly asked questions to try and get Luetticke-Archbell to discuss these topics as separate issues, often with objections from Roach, the parade of objections eventually flared up, resulting in both attorneys making lengthy arguments to Noonan about why, or why not, the line of questioning was relevant.

"We can't just pull out of thin air the separation of the two issues because the record already states they're one issue," Roach said.

"The record" being a reference to a couple of documents already in evidence, including a letter from Steinbrenner to Frost Ridge that treats live music as just one in many alleged zoning violations.

"The communication that triggered the ZBA hearing didn't come directly from code enforcement (a reference to a supposed copy-and-paste by Steinbrenner of a message from Town Supervisor Steve Barbeau)," Zoghlin said. "That communication, while inartfully drawn, had the effect of mixing up and confusing two issues. ... 

"When we get to the jurisdictional issue," Zoghlin continued a statement or two later, "NYS town law and Town of Le Roy zoning code requires an application so we can avoid this kind of problem, so when the ZBA considers something, they have some type of idea exactly what they are being asked to rule on.

"There's no application here," she said. "To say the documents speak for themselves doesn't really help. To compound the problem, nothing was published anywhere so that anybody in town had any inkling the ZBA might consider a determination. The entire procedure is flawed from beginning to end so that it doesn't determine anything. I don't understand the thought process that says they're not asking for two things that are totally different in a way that makes any sense."

Noonan overruled Roach's objection, but also expressed skepticism about Zoghlin's line of questioning. 

"Maybe I'm missing something," Noonan said. "I realize zoning is a highly technical issue conducted by lay people who sometimes make mistakes in the process, but I don't see how going through the thought process of people gives us any enlightenment that will help me to decide this case when the case is based on documents."

With the hearing completed today, now we wait.

The attorneys will draft memos of facts and case law for Noonan to consider prior to issuing his ruling. Those documents are due Sept. 29. Noonan didn't indicate how long it would be after that before he issues a ruling on these motions.

Without a complete dismissal of the case, there will be more court appearances before the lawsuits are decided.

In the meantime, the Marshall Tucker Band is scheduled to play The Ridge on Sept. 6.

Noonan continued his order lifting the ban on live music at Frost Ridge, which allows the Sept. 6 concert to go forward as planned.

Two shows that were previously postponed because of the restraining order. John Michael Montgomery and Jason Michael Carroll have been rescheduled to dates near the end of October. The fate of those shows may depend on the status of the legal case at that time.

Tuesday, August 26, 2014 at 5:46 pm

A close up view of the Northern water snake

post by JIM NIGRO in animals, nature, outdoors

I was walking along the edge of a meadow last week hoping for pics of butterflies and wildflowers. The last thing I expected to come across was a pair of water snakes. Very large water snakes. Both specimens stretched over 40 inches in length.

Until this day, all water snakes I've encountered were either in the water or at the edge of a lake, stream or pond, their preferred habitat. These two were more than 20 yards from a pond loaded with frogs. A stone's throw in the opposite direction is a narrow, sluggish, alga-covered stream filled with tidbits on the water snake's menu.

Okay, so this pair of snakes was a bit out of their juristiction. No big deal. But a couple of days later I came across them again in the same location. And a third time less than a week later, same thing. Oddly enough, each time I saw them, the smaller snake, if you could call it that, was nearly stretched out while the darker, obviously older snake, was tightly looped, its head hidden in the meadow grass.

Northern water snakes mate around April - June and give birth between August and October. Could the larger of the two have been a female ready to give birth. Was the other the papa or might it have been hanging around hoping for an easy meal? For what it's worth, once the offspring are born there is no nurturing, young are immediately on their own.  

The Northern water snake is active both during the day and night and their prey list quite extensive. Mice, meadow voles, crayfish, frogs, fish, birds and other snakes just to name a few. In turn, the water snake is preyed upon by hawks, owls, herons, fox and possums. On the other hand, given the size of the water snakes pictured here, they may have little or nothing to fear except man.

The meadow and nearby fallow fields, now rife with wildflowers, were teeming with ground nesting bobolinks less than two months ago. I wouldn't be surprised if this pair of well fed serpents took advantage of the nesting season and helped themselves to eggs, fledglings and perhaps adult bobolinks caught off guard. 

This is the larger of the two doing its best to remain concealed. The cloudy  appearance of its eye indicates its getting ready to shed its skin. With age, the water snake's tell-tale markings begin to fade and eventually they will appear dark brown or black.

Though non-venomous, the northern water snake is a feisty sort, it will strike when cornered and bite repeatedly if handled. The bite of large water snake can be painful and its saliva contains an anticoagulant which will cause the bite to bleed profusely. In the South they are often mistaken for copperheads and water moccassins and as a result are sometimes killed on sight.  

Tuesday, August 26, 2014 at 5:43 pm

Rotary learns about how the National Weather Service in Buffalo works

post by Howard B. Owens in batavia, Rotary, weather

Jason Franklin, head meteorologist with the National Weather Service in Buffalo, spoke today at the Batavia Rotary Club meeting. He shared information about the technology the NWS uses to help it measure weather and forecast what might be coming.  

Asked how the Weather Channel gets its forecast compared to the NWS, Franklin said, "We work in partnership with them, provide a lot of information to them, like other media, and they provide us information. We work together because our primary mission is to make sure you're safe. To make sure that the companies are getting the information that they need in order for them to do the best that they can. We're all in this together."

Tuesday, August 26, 2014 at 4:45 pm

Lack of posts today

post by Howard B. Owens in thebatavian

Sorry for the slow flow of news on our homepage today.  I was not expecting to be tied up in court just about all day for a Frost Ridge hearing (and it's a pretty good bet, based on his comments, that Judge Noonan wasn't expecting it to take as much time as it did).

So there's a story coming on that, and I have at least one other post to write.

Tuesday, August 26, 2014 at 4:14 pm

Nominations sought for 2014 Health and Humanitarian Award of Genesee County

post by Billie Owens in The Jerome Foundation, UMMC Foundation

Press release:

The Jerome Foundation and United Memorial Medical Center Foundation are seeking nominations for the 30th annual Health and Humanitarian Award of Genesee County.

The award recognizes outstanding men and women whose volunteer efforts have improved the physical, emotional or spiritual well-being of the greater Genesee County area.

“We are fortunate to have many caring and committed volunteers devoted to the sick or to those in need, and helping build a stronger, healthier community for all of us,” said Justin Calarco-Smith, president of The Jerome Foundation.

He noted the significant accomplishments of Judith Ridley, the 2013 Health and Humanitarian Award recipient, who volunteers countless hours with the Le Roy Pantry and Help Fund, the Le Roy Volunteer Ambulance, and the Friendship Club at the Greens in Le Roy.

Nomination forms are available from UMMC Foundation office at 127 North St., calling 585-344-5300, or online at www.ummc.org. Organizations or individuals may nominate candidates.

Consideration will be given to actual accomplishments achieved through volunteer service and subsequent improvements to quality of life. Nominations should be submitted on or before Sept. 26.

The 2014 award winner will be honored at a luncheon on Friday, Dec. 5 at Terry Hills Restaurant.

Tuesday, August 26, 2014 at 4:09 pm

Portion of Terry Hills' green fees this weekend will go to 'Folds of Honor' to help vets' families

post by Billie Owens in labor day weekend, veterans

Press release:

Terry Hills Golf Course, located on Clinton Street Road in Batavia, will be participating in a community event to benefit the families of service men and women.

All weekend long, Terry Hills will be donating a portion of our proceeds from Greens Fees to the Folds of Honor organization, as a participant in Patriot Golf Day. This organization provides educational scholarships for children and spouses of military service men and women killed or disabled while serving our nation. In one year alone for Patriot Golf Day, we were able to raise $4,000!

This is such a GREAT opportunity for golfers to get their rounds in this weekend but in doing so, help raise money for those in need!

Tuesday, August 26, 2014 at 9:39 am

Big rig wreck in Le Roy, wires down, roadway blocked

post by Billie Owens in accidents, Le Roy

A tractor-trailer accident is reported at 8745 Lake Street Road in Le Roy, in front of Dr. Vladimir Gaspar's office. It is blocking the roadway and several wires were pulled down. Le Roy fire and medics are responding. National Grid has been advised, no ETA given.

UPDATE 10:53 a.m.: The Le Roy assignment is back in service.

UPDATE: Both doctor Gaspar's office and Urgent Care will beclosed for the remainer of the day so repairs can be completed of the damaged electrical lines.

Monday, August 25, 2014 at 7:18 pm

Onion crop looking good for 2014

post by Howard B. Owens in agriculture, mucklands, onions

There's some big onions growing in the muck of Genesee and Orleans counties.

A photographer lining up his focus on a particularly bulbous specimen observes, "I don't remember seeing any onions this big last year."

"I haven't seen onions this big in 15 years," responds Paul Mortellaro, co-owner of Mortellaro Brothers in Elba.

On the one hand, the heavy rains of spring created near optimal growing conditions, especially for the onions that were started as transplants. On the other, heavy rain caused some flooding and damaged portions of some fields.

"You're not going to get 100 percent of your crop on 100 percent of your land, but I haven't seen a crop like this in 10 years," Mortellaro said.

Over the next few weeks, local onion farmers will be reaping that harvest. Already, several hundred acres of onions have been crated and bagged.

Much of the success so far of the onion crop is really the near ideal growing conditions of the middle of summer, where enough rain fell to feed the onions, but cool weather and enough dry days allowed perfect growing conditions.

The muckland farmers still have potential weather problems to worry about before the growing and harvest season is over. Mortellaro recalled one year when a severe hail storm came through and heavily damaged the crops of a couple of farms unlucky enough to have their fields right in the line of the main part of the storm.

But if conditions remain good, 2014 will go down as an excellent year for local onions.

A Mortellaro field. Once onions are ready for harvest, a machine pulls them from the ground and sets them back on the soil so the onions can dry before being harvested.

A big onion in a Torrey Farms field.

Mortellaro onions ready for harvest. As part of processing, the dry outer skins are removed, so they'll have a nice shine on store shelves.

Dried onions in a Torrey field being harvested.

Workers at Torrey Farms crate harvested onions. At the Torrey plant, workers arrange three rows of 20 crates each, with enough space between to drive a truck through. Trucks come in only minutes apart, giving workers very little time between loads to get the trucks empty. Mortellaro said it's a difficult job, hot and dusty and constant motion.

Crates full of onions at Mortellaro's processing facility.

Torrey Onions

Not onions. Beets. MY-T Acres land at Transit and Chapell roads, Byron.

Monday, August 25, 2014 at 3:32 pm

Jacquetta Simmons seeks modification of restitution order

post by Howard B. Owens in batavia, crime, Jacquetta Simmons

Out of jail and out of work, Jacquetta Simmons, the young woman who punched an employee at Walmart on Christmas Eve 2011, is seeking a modification to the restitution order levied against her.

Her victim, Grace Suozzi, is entitled to reimbursement on $2,000 in medical expenses, Judge Robert C. Noonan has said. Simmons has been ordered to make monthly payments of $100.

According to statements made by Noonan from the bench today, Simmons is seeking a suspension of restitution payments.

While Simmons appeared in County Court today, she did so without her attorney.

She had written Noonan asking for the hearing, but her attorney, Earl Key, wasn't notified of today's court appearance in time for him to be in Genesee County Court.

Noonan rescheduled the appearance for Sept. 10.

Asked if she was looking for work, Simmons told Noonan she has applied for jobs.

Noonan told her that when she appears Sept. 10, she should have prepared an affidavit on her financial standing and outlining steps she's taken to find work.

For previous coverage of Jacquetta Simmons by The Batavian, click here.

Monday, August 25, 2014 at 2:06 pm

Sewer repairs scheduled tomorrow at Franklin and Davis in the city

post by Billie Owens in batavia, road work

Tomorrow, Aug. 26, the city Bureau of Maintenance will be doing a sewer repair at Frankin Street  and Davis Avenue, just east of Williams Park. Motorists can expect traffic to be reduced to a single lane at times.

For questions call, the bureau at 345-6400, ext. #1.

Monday, August 25, 2014 at 1:48 pm

Natural gas with ill effects prompts evacuation of Bank Street apartment in the city

post by Billie Owens in batavia

The rear apartment at 103 Bank St. was evacuated due to natural gas in the residence with ill effects. The caller was National Fuel. Medics are on scene.

Monday, August 25, 2014 at 11:39 am

Law and Order: Man accused of stealing knife at Walmart, using it as tool to steal other stuff

post by Howard B. Owens in batavia, alexander, crime, Darien, Le Roy

Christopher James Clark, 34, of Pearl Street, Batavia, is charged with petit larceny. Clark allegedly stole a knife at Walmart and then while inside the store allegedly used it to try and open packages containing drill bits. He tried to abandon the alleged stolen property under the vehicle in the parking lot when police arrived.

Carrie M. Capizzi, 30, of West Main Street, Batavia, is charged with felony DWI, aggravated unlicensed operation, 1st, driving without an interlock device and open container. Capizzi was stopped at 10:01 p.m. Thursday at 12 City Centre, Batavia, by Officer Chad Richards.

Kathleen E. Gonzalez, 52, of West Main Street Road, Batavia, is charged with petit larceny. Gonzalez is accused of stealing three packages of steak from Save-A-Lot in Batavia.

Lizbet D. Cramer, 37, of Lewis Place, Batavia, is charged with two counts of endangering the welfare of a child. Cramer allegedly left her 4- and her 15-year-olds unattended. The 4-year-old was allegedly abandoned at Austin Park for at least one hour before police were notified.

DaShawn A. Butler, 34, of Walnut Street, Batavia, is charged with harassment, 2nd. Butler allegedly issued a verbal threat of harm to another person.

Brandon N. Benz, 19, of Clinton Street, Batavia, is charged with endangering the welfare of a child and forcible touching. Benz allegedly had inappropriate contact with a person under age 17 while at a playground at Jackson School at 4:33 p.m. on Aug. 11.

Nefetiria L. Turner, 32, of South Main Street, Batavia, was arrested on three warrants for alleged failure to appear on charges of unreasonable noise charge, aggravated unlicensed operation and harassment, 2nd. Turner posted cash bail and was released.

Deavin Herman, 20, of South Main Street, Batavia, is charged with petit larceny. Herman allegedly stole a bicycle from a location on Walnut Street.

Shane Zimblis, 43, of Hutchins Street, Batavia, is charged with unlawful possession of marijuana. Zimblis was allegedly found in possession of marijuana during a warrant arrest.

Scott Allen Cratsley, 43, of Oak Street, Batavia, is charged with dog running at large. Cratsley's dog was allegedly seen running at large by Officer James Defreze and Sgt. Dan Coffey. That breed of dog, a St. Bernard, has allegedly been seen running at large several times previously.

Alexander L. Jordan, 19, of Pine Terrace, Macedon, was arrested on a warrant for alleged failure to appear on a third-degree menacing charge. Jordan posted $500 police bail and was released.

Michael S. Garrett, 23, of Washington Avenue, Batavia, turned himself in on a warrant for alleged failure to appear on a parking on city streets ticket issued March 18.

Forrest Ansel, 24, of Cone Street, Batavia, is charged with petit larceny and criminal contempt. Ansel allegedly went to the residence of a protected person. He allegedly stole property of that person.

Lawrence William Worsley, 34, of Presbyterian Street, Knowlesville, is charged with disorderly conduct. Worsley allegedly became verbally and physically abusive while at the Viper ride at Darien Lake Theme Park at 6:20 p.m., Sunday.

Jared Lewis Long, 44, of Clinton Street Road, Stafford, is charged with unauthorized use of a motor vehicle. Long allegedly took the Chevrolet Equinox of his girlfriend without her permission. The vehicle was returned to the residence and Long was ordered to stay away from the residence. He was later found by Sheriff's K-9 in a field behind the residence. 

Jessica Lynn Hill, 29, of Leonard Street, Mattydale, is charged with DWI, driving with a BAC of .08 or greater, failure to yield right of way and license restriction violation. Hill was stopped at 10:45 p.m. Thursday on West Main Road, Batavia, by Deputy James Diehl.

William Allen Roll, 54, of Clinton Street, Attica, is charged with harassment, 2nd. Roll allegedly punched another person in the face at 3:54 a.m. Saturday while at an apartment on West Main Street Road, Batavia. Roll was jailed on $500 bail.

Karen A. Lemaster, 54, of Batavia, is charged with driving while impaired by drugs, 1st. Lemaster was stopped at 4:30 p.m. Saturday on Ohio Street, Village of Medina, by State Police.

Rhonda L. Reisman, 42, of Batavia, is charged with DWI and driving with a BAC of .08 or higher. Reisman was stopped at 2:35 a.m. Sunday on Route 33, Stafford, by State Police.

Brian C. Reynolds, 33, of Rochester, is charged with DWI and driving with a BAC of .08 or greater. Reynolds was stopped at 11:32 p.m. Thursday on Route 20, Alexander, by State Police.

Erica A. Cook, 26, of Webster, is charged with DWI and driving with a BAC of .08 or greater. Cook was stopped at 11:45 p.m. Thursday on Route 20, Alexander, by State Police.

Zachary W. Plath, 21, of Le Roy, is charged with DWI and driving with a BAC of .08. Plath was stopped at 12:20 a.m. Friday on Route 20, Alexander, by State Police.

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