No decision yet on future of live music at Frost Ridge
Submitted by Howard B. Owens on July 11, 2014 - 4:47pm
Judge Rorbert C. Noonan wants more information before he decides whether to dismiss one or both of the lawsuits against Frost Ridge Campground in Le Roy.
In a written decision this afternoon, Noonan held off making a decision on the motion to dismiss the suits as well as on the motion to lift the temporary injunction against amplified music at Frost Ridge.
He's ordered a hearing as soon as possible on the assertion by attorney David Roach that the statute of limitations has expired for challenging the Zoning Board of Appeal's determination in the Fall of 2013.
"While Frost Ridge and the ZBA submitted that such minutes were filed with the Town Clerk 'within a matter of days' after the October 22, 2013 meeting," Noonan wrote, "the Town Clerk submits that she 'cannot pinpoint the date (the clerk of the ZBA) delivered the minutes of the Sept. 25, 2013 meeting to her," and that they are customarily filed only 'sporadically.' Therefore, on the existing record, Frost Ridge and the ZBA have failed to carry their burden of proof on the issue."
The ZBA clerk is currently involved with medical issues, Roach told Noonan during today's hearing, and is therefore unavailable to provide an affidavit on when she filed the minutes.
She is expected to be available in a week, he said.
Frost Ridge is fighting twin lawsuits: One filed by the Cleere and Collins families, who own adjoining property, and one filed by the Town of Le Roy asserting Frost Ridge not only is barred by the zoning ordinance from hosting amplified music concerts, but has grown beyond what was grandfathered in when the current zoning ordinance was adopted.
Under NYS law, any party challenging the ZBA's determination would have 30 days from the time the decision is filed to legally seek to overturn the decision. If it can be proved by the defendants that minutes were filed with the Town Clerk in the Fall of 2013, that would be much more than 30 days and could therefore provide grounds for the lawsuit by Cleere/Collins to be dismissed.
What happens with the Town of Le Roy's lawsuit against Frost Ridge is a little more complicated.
"Nor will the Town's action be dismissed for failure to join the ZBA as a defendant," Noonan wrote. "Although the ZBA may wish to intervene in this case, it is not a necessary party to the Town's action to enforce its zoning laws; and, it is questionable whether the Town is collaterally estopped by the ZBA's determination."
Noonan's ruling seems to back the assertion by the defense that the ZBA made a valid determination that land use at Frost Ridge in 2013 was a legal, preexisting, nonconforming use.
"Thus," he writes, "contrary to the Town's contention, the minutes of the meeting permitting the noncomforming use are sufficient for a proper determination."
No date for a follow-up hearing has been released yet.