Submitted by Howard B. Owens on July 11, 2014 - 11:32am
The owners of Frost Ridge are expecting to find out this afternoon whether their 2014 concert series will be held at the campground this year, or whether they must continue to hunt for alternative venues.
This morning, attorney David Roach asked Judge Robert C. Noonan to vacate his preliminary injunction of May 24 that barred amplified music and alcohol service while a pair of lawsuits are pending against Frost Ridge.
Roach based his motion on the fact that the Le Roy's Zoning Board of Appeals wasn't represented at May's hearing and now that the ZBA is represented in the case, new information has been presented to Noonan that shows the ZBA determined that Frost Ridge was being operated in 2013 within the bounds of its status of a nonconforming, preexisting use.
At the May hearing, Town of Le Roy attorney Reid Whiting said the ZBA declined to be represented in the suit (ZBA members didn't even know about the suit at the time) and he presented what's known as a "verified answer" by Supervisor Steve Barbeau that stated the ZBA determination was invalid.
Today, Roach filed an amended verified answer (the answer is in response to the lawsuit by the Cleere and Collins families) from the ZBA itself that states that live music and food service are grandfathered in at the campground.
On the basis of that change, Roach argued that Noonan's injunction was granted without the proper factual information and should therefore be vacated.
"It is no longer clear -- as the court preliminary held -- that my clients have committed a zoning violation," Roach said. "With the ZBA's amended verified answer, the weight of the evidence has shifted such that it is now clear my clients are in compliance with the zoning code as a prior, nonconforming use."
Mindy Zoghlin, attorney for the Cleeres and Collins, argued that the ZBA's minutes don't help Frost Ridge.
"The ZBA minutes say they were asked to review the need for a special-use permit," Zoghlin said. "Dave outlined the history of the campground, and just the campground, as established prior to the zoning law being passed. After his presentation, the ZBA board discussed the issue of the campground, and just the campground and whether it is grandfathered in. It's not clear from the minutes what they're talking about."
Zoghlin said her clients have no issue with the existence of the campground or music at the campground. They are against it being used as a live music venue.
"We're not challenging the decision that the campground is a preexisting use," Zoghlin said. "That's a mischaracterization of the argument and a misunderstanding of what the court ruled the first time around. What we're saying is they can't legally expand the campground unless they go to the ZBA and apply for and receive a special-use permit for expansion."
Whiting made only a brief statement to Noonan and said the defendant's reliance on the ZBA determinations are puzzling to him because he thinks the ZBA rulings produce very unfavorable results for Frost Ridge.
"In 1998, the ZBA ruled clearly there can be no expansion of any structure and can be no change in use whatsoever. On both measures, the campground has aggressively and significantly sought to expand both uses and structures on the campground."
Roach countered later that the ZBA's positions clear that in 2013 they knew what was going on at Frost Ridge and that based on testimony and personal knowledge of board members, the use in 2013 (which included concerts and food service) was grandfathered in.
Noonan could decide, Roach suggested, to kick the issue back to the ZBA to hold a hearing and define exactly what it meant by campground and what it considers to be a prior, nonconforming use.
Both lawsuits -- the one filed by Cleere and Collins and the one filed by the town -- against Frost Ridge should be dismissed, Roach said, because the statute of limitation (in this case, 30 days) long ago expired for challenging the ZBA decision.
Zoghlin told Noonan that the defendants have failed to provide proof of when the determination was filed with the Town Clerk, and without that proof, there is no evidence that the statute of limitations has expired.
She also said the record is incomplete because for the 2013 determination, there was no application filed by Frost Ridge for a decision.
"There's no forms filled out," she said. "There's nothing in writing."
Roach said Frost Ridge owners Greg and David Luetticke-Archbell relied on the ZBA's 2013 determination to go ahead and book concerts for the summer of 2014. They could potentially be out of tens of thousands of dollars if the preliminary injunction isn't lifted.
Noonan said he will issue a written decision at 3 p.m. today.