Submitted by Howard B. Owens on August 1, 2014 - 12:32pm
Frost Ridge Campground is on the brink of insolvency, the attorney for Greg and David Luetticke-Archbell told Judge Robert C. Noonan during a court hearing today.
He's seeking at least temporary relief from the ban on live shows at the campground in Le Roy.
Today's hearing was held so attorney Mindy Zoghlin, representing the people suing Frost Ridge over live music shows at the campground, could make a motion to re-argue one of the issues under consideration by Noonan.
Attorney David Roach, representing Frost Ridge, would have liked today's appearance to have been a hearing on his motion to dismiss the lawsuits against his clients.
Roach was hoping there would be testimony today on when the Zoning Board of Appeals filed minutes from its September 2013 meeting where it determined Frost Ridge was in compliance with Town of Le Roy zoning law.
Roach tried to make the case during the hearing that Noonan needs to revisit sooner rather than later his temporary order barring live music and alcohol service at Frost Ridge.
Noonan wanted the attorneys to focus on coming up with a time for a hearing on the ZBA filing.
After attorneys met privately and then met with Noonan in his chambers, it was determined that the hearing will be at 9 a.m., Aug. 21.
In the meantime, Noonan agreed to let Roach draft an order that would temporarily lift the temporary restraining order and allow Frost Ridge to hold a live music concert Aug. 9.
That's the date Blackberry Smoke, one of the more popular acts to perform at Frost Ridge each year, is scheduled to return.
In open court, Zoghlin tried to suggest to Noonan that allowing any shows prior to resolution of the ZBA filing status isn't necessary because Noonan has already ordered that if Frost Ridge prevails in the lawsuit, they are entitled to nearly a quarter of a million dollars in restitution.
Of course, even a quarter of a million dollars somewhere down the road won't necessarily help a shuttered business reopen, which is why Roach is pushing for some mechanism to allow the bands to play on.
"The reality they are not facing is where the preliminary injunction effectuates the relief the town is seeking and (in previous cases) courts are loathe to allow preliminary injunctions to provide ultimate relief," Roach said during the hearing.
The big hold up in the case is getting either the ZBA's clerk or the town's code enforcement officer, or both, to testify as to a general time frame of when minutes from the ZBA's meeting in September 2013 were filed.
The town clerk has provided an affidavit attesting to the fact that the minutes were filed, she just couldn't remember when.
If the filing date is proven to be any time before April 8 (even if the exact date is not established), then Roach's motion to dismiss the lawsuits filed by the Town of Le Roy and the Cleere and Collins families could potentially be granted by Noonan.
Under New York law, people who wish to challenge a board's decision have 30 days to file such a challenge. The clock starts ticking when a written, public document memorializing the decision is filed with the jurisdiction's clerk.
Noonan ordered more than two weeks ago that a hearing on the ZBA minutes should be held immediately.
The hearing still hasn't taken place, in part because Noonan's court has been busy, which Noonan admitted, but Noonan also laid much of the blame on the shoulders of the attorneys for not agreeing on a time.
Roach expressed a great deal of confidence that either the town clerk, the ZBA clerk or the code enforcement officer for the Town of Le Roy, should be able to testify that the minutes were filed well before April 8, and probably in 2013.
The threat of losing that motion is apparently what prompted Zoghlin's motion today to invalidate the ZBA's determination favoring Frost Ridge all together.
Zoghlin's motion is for a "jurisdictional defect." In essence, she's arguing that because there is no formal document memorializing the ZBA's decision, and no formal process that Frost Ridge followed requesting a ZBA ruling, the ZBA had no authority to make its determination.
Roach said there's no written law and no case law that support's Zoghlin's position, also for a motion to re-argue a point from a previous hearing to be successful, the point must have been argued in the first place. Roach said that since Zoghlin (and she disagrees with Roach on this) didn't raise the "jurisdictional defect" argument the first time around, she doesn't get to re-argue it now.
"If the court did not have that jurisdictional defect argument advanced before it in response to my motion to dismiss, there's nothing for the court to have overlooked or misapprehended," Roach said. "The court of appeals has ruled that you cannot bring a new argument to a motion to re-argue."
If Noonan grants the order being drafted by Roach to allow live music at Frost Ridge between now and the hearing on the motion to dismiss the lawsuits, Roach said there will be reasonable restrictions attached. For example, there would be a limit on the decibel levels of the show.
"Frost Ridge, and I want to make this perfectly clear, Frost Ridge did not and does not presently have any intent of causing an unreasonable noise disturbance to its neighbors," Roach said.