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Le Roy residents debate town board over Frost Ridge lawsuit

The Town of Le Roy Board had no choice but to pursue a lawsuit against one of its own local businesses, attorney Reid Whiting said Thursday night during a discussion with town residents of the Frost Ridge legal proceedings.

About 25 Frost Ridge supporters turned out to the board meeting and spoke up during a conversation that lasted at least 90 minutes.

There were no speakers supporting the board's lawsuit.

Frost Ridge is being sued by both the town and two neighboring residents over its very existence as a campground and its ability to hold outdoor music concerts.

The neighbors, David and Marny Cleere and Scott and Betsy Collins, have been pushing the town to enforce its zoning ordinance in regards to Frost Ridge, Whiting said. The two couples made it clear, Whiting said, the town would be sued if it failed to enforce its ordinances.

Such a failure, Whiting said, would embolden others to violate the zoning code and give the town little recourse for enforcement.

"If we ignored the violations, we would be found in dereliction of our duty and we would not be able to defend ourselves in other matters," Whiting said.

Later in the meeting, he said, "We did not act lightly. We did not act recklessly. We did not act without thought. We have a statutory duty to enforce the laws of Le Roy. If we do not, we are at risk. If we're at risk, you're all at risk."

The town board decided to sue Frost Ridge rather than defend its own Zoning Board of Appeals, which determined in 1978 and again 2013 that Frost Ridge was an existing, nonconforming use and permissible under the town's law.

Supervisor Steve Barbeau (second photo) said the ZBA overstepped its authority by making those determinations.

"The issue of whether something is grandfathered in or not grandfathered in is not their decision," Barbeau said. "If in the 1960s a record of music was played over the PA system so now that translates into Molly Hatchett coming in for a concert, if you believe that's the case, that's not something within the purview of the ZBA to rule on."

Both Whiting and Barbeau made the point that the town board was not criticizing the ZBA or arguing with the ZBA. The town did not sue the ZBA. Cleere/Collins sued the ZBA.

Whiting leaned heavily in more than one statement that the town's position obviously had merit because Judge Robert C. Noonan issued a temporary injunction against amplified music and alcohol sales at Frost Ridge.

"Judge Noonan takes precedent over anything the town board does," Whiting said.

When Eilleen Sherman Dries (top photo) said a code enforcement officer, who trained the town's current officer, told her Frost Ridge was a pre-existing nonconforming use, Whiting snapped, "The only thing that matters is what Noonan says."

At the hearing prior to Noonan's ruling, the ZBA was not represented. Whiting told Noonan during the hearing that the ZBA had been served notice that it was a defendant in the Cleere/Collins suit but chose not to be represented. That turned out not to be an accurate statement. Chairwoman Debbie Jackett has since said the board stands behind its determination that Frost Ridge is not violating existing town code.

The ZBA will be represented by its own attorney, paid for by the town, at further court proceedings.

Late in the meeting, Whiting said the town is just a secondary player in the legal proceedings, even though Noonan denied the Cleere/Collins side its own request for an injunction, granting just the town's request for an injunction.

If the other sides in the case were able to come to an agreement, Whiting said, he would not interfere with the agreement, but bring it back to the town board for consideration.

Coming to an agreement was the major request of just about every resident who spoke during the meeting.

"This is revenue we had and now it's going to Caledonia instead of Genesee County," said Lucie Ann Griffis (Disclosure, Griffis is a part-time sales rep for The Batavian). "This is revenue that not only the town needs, but the whole area needs. It's a shame the town board couldn't jump aboard on this and instead of saying what we can't do, saying what we can do.

"It's a shame what's being said about use, about the town not being friendly to business. I'm a lifer here. This is a travesty that we're losing this revenue based on the complaints of just a couple of people."

Carl (who refused to provide his last name) also complained about lost business.

"The town board should be out trying to promote the town and promote business and not take away a business because of some violation of code, because one or two complaints, and shut something down," Carl said. "The board should try and do some something to help them."

A couple sitting behind Carl said they were from Rochester and camp regularly at Frost Ridge, and have camped there since before the current ownership. They both said Le Roy has started to gain a bad reputation in Rochester because of situations like this.

Jennifer Keys also spoke in favor of finding some compromise that could save Frost Ridge.

"We cannot deny that Frost Ridge is a great source of revenue for our community," Keys said. "I would like to see it worked out so that the revenue stays here rather than going to Caledonia or Batavia."

Barbeau said the town has already tried to reach a compromise with Frost Ridge owners Greg and David Luetticke-Archbell, but at the 11th hour, the owners hired an attorney who withdrew their application for a special use permit for the campground.

"Once they conformed to that, then they could seek out a variance for concerts," Barbeau said. "There was no guarantee at all. It would have gone through the ZBA, then the planning board and then a public hearing and then the town board."

Keys responded, "I don't want to speak for the owners, but since they're not here, it's my understanding that county planning told them you can't do that, that their application (for a special use permit) wasn't valid because they didn't need it. They felt threatened and things blew up and here we are now. I would still hope something could be worked out."

Greg and David are out of town and not available for clarification, but The Batavian has previously spoke to sources who said Greg and David were advised by their attorney at the time that the special use permit was a trap. The issuance of a permit would negate prior rulings by the ZBA and end concerts at the Ridge.

Barbeau said he did try to find a compromise for Frost Ridge last summer and that he convinced Cleere/Collins to hold off on a suit during the 2013 concert season because shutting things down with contracts signed and deposits paid would have been economically devastating for Greg and David.

"I do bristle and I will continue to bristle when people say we didn't try as a town board to do anything to work things out," Barbeau said.

Barbeau said if Frost Ridge had continued with its application, he was confident it would have been approved by the board unanimously and then he was going to propose a town-wide zoning change that would have permitted concerts on any property three times a year -- Memorial Day, the Oatka Festival and July 4.

Frost Ridge hosts concerts at least nine times a year.

"They were gambling (when they withdrew their application) and they gambled wrong," Whiting said.

A man named Steve (who also refused to give his last name), made one last plea for resolution favorable to the town near the end of the discussion.

"This is a no-win situation," Steve said. "If you win the lawsuit, you lose all that revenue from all those people who come to Frost Ridge. "If you lose the lawsuit, you're going to owe the campground all that money, all the while costing me and the other residents a lot of money. You need to get in a room with everybody and work it out."

One audience member kept asking how the supporters could go about getting an item on the agenda at a future board meeting about the board reconsidering its position, and the answer was, there's a public comments section on every agenda.

"I want to know when we can ask you to represent the majority of the people in Le Roy instead of just two people," she said.

Brett DeKruger
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Howard- your bias in the way this article was written is GLARING, just as it was with the Wiss situation.

Jennifer Keys
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I was there (perhaps you were too, Brett?) and the quotes are accurate, though I don't think the tone really captures the tension in the room. This was a very contentious meeting and I don't feel that when reading this. I daresay it was the most contentious meeting I've been too and I went through the pool (added in edit), Robbins Nest and Wiss issues. At the end when given an opportunity to summarize and wrap up one Councilman chose to say that he hoped people understand the issue now and that he won't see us every two weeks to rehash the issue (rewritten in edit). Contentious meeting....

Randy Smart
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"Barbeau said if Frost Ridge had continued with its application, he was confident it would have been approved by the board unanimously and then he was going to propose a townwide zoning change that would have permitted concerts on any property three times a year -- Memorial Day, the Oatka Festival and July 4."

So the question is, why can't a zoning change be made now to allow concerts, why would such a change have to depend on whether or not Frost Ridge submitted an application? The Town Board should have the authority not only to enforce the current laws, but to make changes to the existing laws in order to enhance the lives of its residents. Perhaps this issue needs to be put up for a town-wide vote.

Bob Harker
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I reread the article trying to find the bias Brett referred to. There is none.

As an aside, since music through a PA system is CLEARLY grandfathered, I would play loud rap music every night of the week once the campers are gone. All winter.

But that's just me.......

Dave Olsen
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And that Bob, despite all our differences is why I like you! :>)

Bob Harker
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Brought a smile to my face, Dave. LOL. Back at ya.

Gerald Robinson
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I'm not sure i want Frost Ridge shut down but, i can guarantee if this was in the back yards of half the people that wanted to let Frost Ridge continue you'd all be singing a different tune. But, it only affects a few people so everyone's willing to make concessions for Frost Ridge and that's B.S. Best i can tell they were given a chance last year and they decided they wanted to play hard ball. It's also not just the noise violation that they are in violation of, didn't they build some kind of stage that was also never approved? Maybe all the code violations have been written in these articles and everybody knows that already but, i didn't completely read this one or the last article. What happens if LeRoy turns their back on the building permit thing and the stage collapses? Do we get sued then, is the revenue worth that risk?

"It only matters what I can prove! So please, don’t tell me what I know, or don’t know; I know the LAW"

Bob Harker
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Gerald, you are certainly entitled to your opinion, but given the results of the poll your opinion is in the really small minority.

I do take exception though to your thinking you can read the minds of others that have commented on this subject. I for one, and I'm sure there are many others, would offer the owners the use of my land any time at no charge. Not only do I enjoy the type of national artists that they bring in, the influx of money to the community that the concerts bring is much needed.

And I firmly believe that the stated wishes of the community FAR outweigh the complaints of a couple of individuals.

Jennifer Keys
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I've actually commented on that on my FB page. When we lived in Rochester we knew lilac festival week (10 days) would be noisy and crowded, so we could live with it or go away during that time because it is a great source of revenue for the city. We have the same thing with Oatka Fest. Idk if you can hear it where you are, Gerry, but we can and we can hear all of the people walking by in the middle of the night after the annual party that we aren't invited to. It's all good. It's one weekend when we could leave if I didn't want to Tri the Oatka. I still contend things can be worked out to everyone's satisfaction, but maybe I'm just optimistic.

Emma Morrill
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Bob, justice and the rule of law have nothing to do with how the majority may -- or may not -- vote in a non-scientific online poll (thank goodness). In this nation, laws also exist to protect the interests and rights of minority voices -- and that's a very good thing. I realize that it's not a popular opinion on these pages, but I'm with Gerald on this.

I've got nothing against Frost Ridge (heck, I've never even been there), and I hope that some sort of compromise will ultimately be worked out in the courts to allow them to remain operational. However, as I see it, the town of LeRoy had no choice but to enforce the *laws* on their books, particularly when they are being pressed by citizens to do so; it doesn't matter a lick if those citizens happen to be in the minority. If the zoning laws have only been enforced selectively in the past, that's a very big problem. The laws either need to be changed (now, via the courts), or they need to figure out some way that Frost Ridge can continue to hold concerts in compliance with those laws.

It seems, from what I'm reading, that Frost Ridge did have a chance to make some sort of compromise, but they chose to fight. That's fine, and it's their choice... but now that fight is playing out. I honestly can't comprehend what's so difficult to understand -- or to accept -- about that fact.

Brett DeKruger
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And for the record, I am all FOR the concerts at Frost Ridge. When the rules are followed and the proper measures are in place.

Bob Harker
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Emma, let me first apologize to you publicly for a couple of rude comments I made toward you in a previous "debate". It was completely out of character for me, and just wrong.

That said, I agree that the rule of law does - and should - protect all. My point is that the town of Leroy's own Zoning Board of Appeals has stated unequivocally that Frost Ridge operates it's business legally, including the concerts.

It ticks me off that TWO **slightly** inconvenienced individuals can cause such a ruckus in the community. I think there are 8 (maybe 9) concerts a year. How does this possibly cause such a intrusion into one's life for it to all come to this? I fault not only the two individuals, but mostly the town board. From my understanding of all the various reports if they had done their due diligence by simply communicating with members of the ZBA I don't think this would have escalated into such a now region wide division.

I too hope a compromise can be reached, and again offer the use of my land for use for the concerts.

Brett DeKruger
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What "personal attack"???? Again showing your bias Howard. You couldn't write a fair and honest article if your life depended on it.

Kyle Couchman
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Don't forget Bob that these 2 individuals also happen to be related to the former owner and perhaps these two have some jealously and resentment issues for their Grandmother selling instead of handing it down.

Emma Morrill
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Thank you for being gracious, Bob. No need to apologize to me, however. I really don't recall specific rude comments from you that were directed at me. Here, at The Batavian, my opinion is almost always in the minority, so I'm pretty used to getting jabbed when I pop in to comment. Thanks, though, for being polite.

Smile

Bob Harker
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I didn't know that, Kyle. Thanks for the info.

"Hmmmm. And the plot thickens."

Jennifer Ross
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Brett, If you are so unhappy with what you read in The Batavian you are certainly welcome to go elsewhere.

Jennifer Keys
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I thought it was just sarcasm, thus the smile. Smile

Bob Harker
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Something you would consider objective and unbiased, Brett - like The Huffington Post, or MSNBC.

Tim Miller
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"You couldn't write a fair and honest article if your life depended on it."

Why, yes, Howard... what possible personal attack could have ever been generated by that reader?

Brian Graziaplena
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This scenario sure seems to me to be a perfect time for a jury trial and the defense going for a Jury Nullification.

Did you know that, no matter the evidence, if a jury feels a law is unjust, it is permitted to “nullify” the law rather than finding someone guilty? Basically, jury nullification is a jury’s way of saying, “By the letter of the law, the defendant is guilty, but we also disagree with that law, so we vote to not punish the accused.” Ultimately, the verdict serves as an acquittal.

- Jury Nullification is the term given to the process where the jury of a criminal case acquits the defendant regardless if he has broken the law in question. The jury would do this in a case where they judge the law to be unjust, therefore the jury can vote to find the defendant innocent since the jury found the law itself to be immoral, unfair, unjustly applied, or unconstitutional. By voting to acquit, the jury therefore nullifies the law.

Emma Morrill
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Jury nullification? Do you mean like how white juries often acquitted white defendants for lynching or murdering black victims, during the pre-civil rights era in this nation? Do you mean how all-male juries sometimes acquitted men for abusing -- or even murdering -- their wives, in the bad old days? No thanks. What if juries started ignoring or "nullifying" laws that protect *you* or your rights? I, for one, would rather not live by mob rule.

Why don't we simply let this play out in the court now? If the law needs to be changed, let that happen; the court may, indeed, come up with some sort of reasonable solution or compromise... or even a revision in the zoning code.

Seriously. What's with all of the premature hysteria? Nobody has closed Frost Ridge.

Dave Olsen
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Lynch Mobs, Wife Beating, Murder? That's a heck of a leap from zoning codes and a few concerts per year.

Emma Morrill
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You don't think that calling for "jury nullification" over a zoning code dispute (a dispute that is still to be decided by the courts) is a bit of a leap... or, at least, a tad extreme?

That's kind of my point. People are putting the proverbial horse before the cart by getting frenzied over what *may* be a resolvable dispute. I guess we'll see. Meanwhile, though, I'll take the orderly rule of law over mob rule, any day.

Kyle Couchman
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Emma....."jury nullification" is part of the "rule of Law". In this case I think it's entirely reasonable. The 2 families that pushed this issue, besides having had past interests in these very same "variances" benefit their family at one point seem to have bullied the village into this lawsuit to help them.
Your characterization of this being akin to Civil rights trials over murder, or wife beatings and murder are a bit melodramatic and oversimplified. There was a variance in place, the town chose not to recognize it ..."All of a sudden" No one is asking you to live by "Mob Rule" As stated before Jury nullification is part of the US legal system therefore part of the orderly rule of law.

I think things like this need to be dealt with transparently and involve the town as a whole. The repercussions of this legal frivolity will dig deep in the village, town and county pockets if Frost Ridge is closed or is prevented from doing business. As well as the ZBA now having to defend itself using taxpayers money as well.

I'm thinking the only winners here are the lawyers collecting their fees. Even the sound engineer that the Cleeres and the Collins'es hired said that the noise is less than rain on their properties and the creek running near the house.

These two families aren't willing to compromise therefore it wont be resolvable. Especially now that the are leading the town board on a leash to back them.

Dave Olsen
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I do not. Jury nullification should be used anytime the jury feels the laws being used are unjust or unconstitutional. Don't forget that 12 or 6 people (depending on jury size) who have the facts of the case have to agree. That's not mob rule, that's citizens being responsible and all reaching the same conclusion.

Emma Morrill
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Okay, Dave, you make a good point about the fact that an entire jury would have to be in agreement to employ jury nullification, thereby limiting potential abuse or misuse. And there have been rare instances when jury nullification has been effectively used to stand up against laws that limit people's liberty (i.e., juries that "nullified" charges against defendants who violated The Fugitive Slave Act).

There have, however, also been instances of abuse, as I noted above (i.e., all-white juries acquitting white defendants who were on trial for lynchings). So... it would seem that while "jury nullification" can be an important and useful tool, it should also be employed only in rare and extreme cases, where the law itself clearly violates moral imperatives of constitutional law, not recognized by statute. It's an exceptional action for exceptional cases.

A local battle over zoning laws and restrictions does not rise to that level. And, once again, law is not based on "majority rule" -- nor should it be.

Kyle, how do you know that the families were unwilling to compromise and that this issue will not be able to be resolved? Do you know these people, personally (that's a sincere question)? It seems completely speculative to me, because (from what I have seen) we haven't heard from the original complainants. I have seen accounts that suggest that Frost Ridge pulled away from negotiations -- thereby essentially choosing to fight the court battle -- in order to garner a more favorable outcome. I don't definitively know that to be the case, however, and I admit that I may be misinterpreting the details.

In any case, I really can't understand why everyone is so dead set against letting the court battle proceed. We don't even know (do we?) that this would be a jury trial case. Either way, it seems quite likely to me -- although not guaranteed -- that some sort of reasonable resolution is likely to come out of the trial.

Dave Olsen
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Nullification should happen when indicated, whether rare or everytime. I would prefer it to be rare.

Frank Bartholomew
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Emma, have you ever served on a jury? If you have, you would understand a couple of things that happen during the seating process.The prosecution and the defense frame their questions to perspective jurors, and choose the jurors who answered
the questions to their liking, or at least favorable to their arguement.

What I'm saying is, it would be damn near impossible to pick a rigged jury in this
day and age similiar to what you suggested in your last post.

Bea McManis
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Brian brought up jury nullification. Emma feels that this event does not raise to the level and gave her reasons. Frank questions Emma's qualifications for offering an opinion and schools her on the roles the lawyers play.
Howard puts it all in perspective.
So goes the world at the Batavian.

Emma Morrill
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I actually have served on a jury for several weeks, Frank (in Binghamton, NY... not yet in Batavia), and my husband is an attorney who has practiced trial law, so I'm quite familiar with the concepts being discussed here. Hung juries -- or juries that fail to convict due to one or two conscientious hold-outs -- are not the same animal as a jury nullification. I also realize that jury nullification would, by design, be fairly rare today (that, I think, is a good thing). I'm speaking about the concept theoretically.

Had I served on a jury looking at evidence against Rosa Parks, I'd like to think that I would have championed jury nullification, for such an exceptional case and against such an egregious law. However, something so relatively trivial and mundane as a zoning or code dispute, hardly rises to the occasion of such extreme measures. In my opinion, to call for jury nullification in this particular case is to replace a principled stand with a call for mere anarchy.

Emma Morrill
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In any case, the jury nullification debate is probably moot in this Frost Ridge case. My husband (the lawyer) says that if it's a "special proceeding" claiming that the zoning board (or the zoning board of appeals) abused their discretion, then there's no right to a jury trial, under the *New York Civil Practice Law and Rules.*

Kyle Couchman
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Sorry Howard, My bad as I misunderstood the article part posted below....

The Cleeres have claimed that they can't sit outside their home on concert nights, the noise is so loud, and that when they try to go inside and close the windows, the walls shake because of the noise.
Roach argued that this assertion is merely anecdotal and the plaintiffs have failed to produce any empirical evidence that the volume of music has ever reached a nuisance level.
Meanwhile, he said, his clients hired a professional sound engineer to measure the noise levels on a concert night and found at the Cleere's home a noise level of 51 decibels, "which is 11 decibels above a rain drop and 7 decibels less than the nearby creek."
The Frost Ridge owners also requested a deputy come to the property one night and go to the Cleere residence and see if the noise rose to the level of a nuisance. The deputy, they said, found no problem with the noise level.

Thought that Roach was representing the Plaintiffs while Whiting was representing the Town of Leroy. Gotta admit this was confusing at first.

As for Emma's question to me on how do I know that the plaintiffs are unwilling to negotiate anything. Well going straight to a court and threatening the Town of Leroy with a lawsuit generally is a show that they dont want to compromise. They supposedly never directly spoke to Frost Ridge and went straight to litigation. Pretty obvious that they want their way ONLY.

Kyle Couchman
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Got it now Howard Smile

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