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Saturday, December 6, 2014 at 1:50 pm

Noonan denies motion to dismiss in Frost Ridge case

post by Howard B. Owens in business, Frost Ridge Campground, Le Roy, zoning

The failure to publish a public notice prior to a September 2013 Le Roy Zoning Board of Appeals meeting on whether Frost Ridge Campground was in violation of zoning laws deprived neighbors of an opportunity to meaningfully participate in the board's decision, Judge Robert C. Noonan wrote in a ruling issued Friday.

The ruling was in response to a motion by the defendants, Greg and David Luetticke-Archbell, to have a lawsuit thrown out that challenges their ability to host live music concerts at the campground.

"The ZEO (Zoning Enforcement Officer)/ZBA's lack of compliance with the notice requirements was so grievous that no statute of limitations bars this action," Noonan wrote in the decision.

Noonan's ruling means that the lawsuits against Frost Ridge will proceed to trial.

The Luetticke-Archbells are fighting two lawsuits over live music at their natural amphitheater, and allegations that the campground was expanded in violation of zoning codes.

One lawsuit was filed by David and Marney Cleere and Scott and Betsy Collins, the other by the Town of Le Roy.

To date, the case has been a series of motions and hearings, but it appears that Noonan's ruling on this motion clears the way for trial.

Sunday, October 26, 2014 at 2:22 pm

Photos: Carroll and Jones at Frost Ridge close out season

post by Howard B. Owens in entertainment, Frost Ridge Campground, Le Roy, music

Frost Ridge Campground closed out its abbreviated 2014 concert schedule Saturday night with headliner Jason Michael Carroll (pictured above).

Carroll was originally booked for a date earlier in the summer, but it was cancelled following a court order triggered by a pair of lawsuits filed against Frost Ridge. Judge Robert C. Noonan eventually modified his order after the legal process started to drag on.

Joshua Scott Jones, formerly of Steel Magnolia (below), opened the show.

Photos by Peggy Barringer.

Saturday, August 16, 2014 at 12:53 pm

Photos: Fundraiser for Le Roy Fire at Frost Ridge

Today, Frost Ridge hosts its annual fundraiser for the Le Roy Fire Department. 

The event goes until 4:30 p.m.

Just now, they're setting up dual water slides.

The ladder truck rides, however, are over.

There's a basket raffle and food.

Thursday, June 12, 2014 at 11:01 pm

Le Roy residents debate town board over Frost Ridge lawsuit

post by Howard B. Owens in business, Frost Ridge Campground, Le Roy

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.

Saturday, May 31, 2014 at 7:12 am

Frost Ridge, complying with court order, announces change of venue for June 7 show

post by Howard B. Owens in business, entertainment, Frost Ridge Campground, Le Roy, music

Press release:

Jam At The Ridge Presents: Josh Thompson In Concert - Performance Location Change

As you may know, a preliminary injunction has been issued against amplified outdoor concerts at Frost Ridge at this time. To fully comply with the court order and meet our commitment to our guests, the Josh Thompson Concert scheduled for June 7th, 2014 at 5 p.m. (gates open at 4 p.m.) is being moved to:

    J W Jones Hall

    366 Leicester Road
    Caledonia, NY 14423

    Maps:  Google   Bing

The firefighters of Caledonia have been very gracious to provide this space and we thank them from the bottom of our hearts. This location is only 14 minutes from camp and is easy to find. If you have any trouble, please come to camp and get a map.

Ticket-holders, please go directly to the venue at the address above.

Campers, please register at the campground and take the FREE shuttle to the venue.

Thank you to everyone who has helped us keep the music alive at The Ridge.

ADDITIONALLY: The attorneys involved in the two lawsuits over Frost Ridge met in conference Friday in the chambers of Judge Robert C. Noonan. The meeting was primarily to go over the calendar of motions and appearances in the case, but attorney Karl Essler was introduced as legal counsel for the Zoning Board of Appeals. Somehow, the ZBA, which has consistently found that Frost Ridge is a legal nonconforming use within the Town of Le Roy's zoning laws, was not notified it was a party to one of the lawsuits. The ZBA was not represented at a hearing that proceeded Noonan's ruling on the current injunction against amplified music and alcohol service at Frost Ridge. David Roach, attorney for Frost Ridge, said Essler will be permitted to file a written argument in the case without opposition from the plantiff's counsel. It's unclear how the additional information might or might not lead to a modification of Noonan's ruling. No date was announced for the next court proceeding.

Thursday, May 29, 2014 at 12:54 pm

Le Roy zoning board stands by decision allowing music at Frost Ridge, chair says

post by Howard B. Owens in business, Frost Ridge Campground, Le Roy

Le Roy's Zoning Board of Appeals will likely try to retain its own attorney in the Frost Ridge case, board Chairwoman Debbie Jackett said today.

At a hearing May 20, Town of Le Roy Attorney Reid Whiting told Judge Robert C. Noonan that the ZBA didn't have an attorney in court that day because the board chose not to be represented.

He said the ZBA had been served with notice of the lawsuit.

Jackett said the board didn't know it was named in a lawsuit until members read about the court hearing in The Batavian.

The ZBA was named by plaintiffs David and Marny Cleere and Scott and Betsy Collins because the ZBA found in July 2013 that camping and amplified music were permitted uses at Frost Ridge.

The board's position is and was, Jackett said, that camping and amplified music were both permitted uses prior to the area being zoned residential/agriculture in 1967.

The vote was unanimous, Jackett said, and the board's position hasn't changed.

The town board cannot overrule the ZBA's decision.

"Their view is contrary to our view," Jackett said.

Which is why Whiting can't represent the ZBA, she said. 

The ZBA serves both the town and village governments, but the board doesn't feel the village attorney should represent the ZBA since Frost Ridge is a town issue, so the ZBA is scrambling to secure independent legal representation.

The Town of Le Roy will be obligated to pay for the ZBA's attorney.

Frost Ridge and owners David and Greg Luetticke-Archbell are defendants in two lawsuits, one filed by the town and another field by Cleere and Collins challenging their legal ability to both exist as a campground and to operate occasionally as a live music venue.

The plaintiffs maintain that the campground and amplified music violate the current zoning ordinance. Frost Ridge maintains that the property was recreational use prior to 1967 and it's recreational use today.

Noonan issued a temporary injunction May 23 barring Frost Ridge from amplified music and alcohol service on the property, citing the likelihood that the town would prevail on the merits of the case. His decision was based on the May 20 hearing that lacked ZBA representation. 

Since the ZBA doesn't have an attorney yet, it's unclear whether any motion could be brought forward challenging the injunction.

A conference meeting -- where dates will be set for future proceedings in the cases -- is scheduled for tomorrow. Jackelt said she is unsure if the ZBA will be able to retain counsel in time for that court appearance.

Tuesday, May 27, 2014 at 1:03 pm

Frost Ridge issues statement on Judge Noonan's order

post by Howard B. Owens in business, Frost Ridge Campground, Le Roy

Press release:

The Town of Le Roy, NY (Town) has filed suit against Frost Ridge Campground LLC (Frost Ridge) alleging they are in violation of local zoning code. After initial arguments, Judge Robert C. Noonan has ordered Frost Ridge to temporarily suspend “amplified outdoor concerts and alcohol service” until the merits of the lawsuits can be fully addressed.

Of course, Frost Ridge has complied and will continue to comply with Judge Noonan’s Order. In the meantime, Frost Ridge remains open to all its camping guests, and will continue to seek alternative options and potential venues for its live music.

Again, we thank our guests for being patient, as we have had to be patient. We need to allow this process to be worked through. There may be a few bumps along the way, but everyone who knows us will realize that we work through issues to resolve them.

Saturday, May 24, 2014 at 6:36 am

Noonan grants temporary injunction against amplified music at Frost Ridge

post by Howard B. Owens in business, Frost Ridge Campground, Le Roy

There can no amplified music at Frost Ridge Campground, ruled Judge Robert C. Noonan, in a decision handed down yesterday afternoon, at least temporarily.  

Noonan said the Town of Le Roy showed sufficient proof that it would prevail in its lawsuit on the alleged zoning code violation related to an amplified concert venue and restaurant at Frost Ridge.

He denied the same motion made by plaintiffs Cleere and Collins.

In a statement to The Batavian this morning, Frost Ridge co-owner David Luetticke-Archbell asked the public to be patient and understand that from the owners' point of view, Noonan has not been presented with all the facts by the plaintiffs.

"The most recent came from Mr. Whiting when he stated that the reason the Zoning Board of Appeals was not present was because they chose not to be," Luetticke-Archbell  said. "The truth is that they were never notified that they were being sued. He knew, but they did not ... a fact confirmed with them earlier today."

We are unable to get in contact this morning with Whiting nor a representative from the ZBA for comment.

"We just hope people will be patient, as we have had to be patient," Luetticke-Archbell added. "We need to allow this process to be worked through. There may be a few bumps along the way, but everyone who knows us will realize that we work through issues to resolve them."

We've e-mailed Luetticke-Archbell asking for confirmation whether their planned live music show for Memorial Day is being cancelled.

Noonan said in his five-page ruling that prior cases and NYS code gives the town the right to an injunction in the matter of an alleged zoning code violation, a right not available to the other plaintiffs, who have a higher standard to meet.

"As indicated above, the Town has clearly established that the concert venue and restaurant are in violation of the Town's zoning ordinance," Noonan wrote. "Further, the existence of safety hazards, public order and noise concerns creates a balance of equities in favor of the Town."

The town is not required to prove any special public damage in order to receive "injunctive relief," Noonan said, based on prior case law, just that there's the potential to prevail on a violation of it's zoning code law. 

Prior rulings also require Noonan to set a limit on what the town's damages would be if it ultimately didn't prevail in its lawsuit. If the town loses the suit, Frost Ridge could request Noonan to order the town to pay $225,536 in damages.

Noonan sided with the town on the live music and restaurant injunction, but did not order the campsites shut down.

The ruling acknowledges that the town, through the ZBA, may have misled the Luetticke-Archbells in September about whether live music was permissible, or "grandfathered in," only to contradict that ZBA finding the next day when the zoning code enforcement officer issued a letter barring live music.

The injunction was not granted to Cleere and Collins, the ruling indicates, because there is insufficient evidence of irreparable injury.

The ruling leaves open the ongoing disagreement between the town and Frost Ridge over whether campsites at that location are a preexisting nonconforming use, having been in place prior to adoption of the current zoning rules in 1967.

The town claims Frost Ridge was only a ski area, without campsites, prior to 1967. The Frost Ridge owners claim there were campsites on the property prior to 1967 and that the property was considered a "recreation" use, which means all recreation activity -- including live music -- is grandfathered in.

Noonan has ordered all parties back to his courtroom for a conference on the suit at each party's earliest possible convienence. 

UPDATE: In response to our request for clarification on whether live music will be cancelled Monday, David Luetticke-Archbell responded:

No, it is not cancelled. We are however going to comply with the order from Judge Noonan. I did read your article this morning, and would like to offer a correction. The injunction states:

"Therefore, the motion for a preliminary injunction by plaintiffs Cleere and Collins shall be denied; but the motion for preliminary injunction for the Town of LeRoy shall be granted to the extent of 'amplified outdoor concerts and alcohol service.' "

Frost Ridge shall comply with both of these.

Previously: 

Tuesday, May 20, 2014 at 9:29 pm

Attorneys argue fate of Frost Ridge and now await ruling from Judge Noonan

post by Howard B. Owens in business, Frost Ridge Campground, Le Roy

Top photo, Greg and David Luetticke-Archbell, owners of Frost Ridge. Inset, Attorney Reid Whiting, representing the Town of Le Roy.

In a 90-minute hearing, all three attorneys in the Frost Ridge land use lawsuit had a chance to make their case before Judge Robert C. Noonan, who said at the end of the hearing he will rule soon on whether the more than 50 year old campground in Le Roy should be shut down.

The two plaintiffs in the dispute -- the Town of Le Roy in one lawsuit; and David Cleere, Marny Cleere, Scott Collins and Betsy Collins in the other -- are seeking a temporary judgement to stop the campground from hosting any concerts and to bar camping altogether at the facility.

David Roach, representing the owners of Frost Ridge, David and Greg Luetticke-Archbell, said even a temporary order would potentially drive the campground out of business.

A shutdown would lead to more than $100,000 a month in lost revenue, as well as put at least 38 people out of work, according to court documents filed by Roach. The campground has at least $1.8 million in local economic impact accounting for $148,000 in sales tax revenue for the county.

At issue is whether the campground constitutes a legal, nonconforming use in the current residential/agriculture zoning district and whether concerts at the venue are covered by that existing variance.

There are very few points the two sides agree on.

The land now occupied by Frost Ridge (purchased for $174,000 by David and Greg in 2008, according to mortgage documents on file with the county) was originally owned by Janet McPherson Frost, the grandmother of two of the plaintiffs, Marny Cleere and Betsy Collins.

In 1957, the land was leased to John Mattern for winter skiing.

At some point, Mattern added camping. Roach maintains in court documents that campsites were first installed in 1963. Reid Whiting, attorney for the Town of Le Roy, and Mindy Zoghlin, attorney for the other plaintiffs, maintain there is no proof of campsites on the property prior to 1967.

That year is significant because that's the year the area was rezoned to R+A. Prior to that, according to the Luetticke-Archbell team, the land was considered a recreational use area by town planners.

In 1972, the McPherson Family sold the land to Frost Ridge, Inc.

In 1998, the owners of Frost Ridge at the time sought to clarify the zoning of the land and asked the Zoning Board of Appeals for an interpretation of the code.

The ZBA declared the property a nonconforming preexisting use and, as such, legal as a campground (the defendants maintain as a "recreational facility," which would include music entertainment). The ruling also barred any expansion of the campground without zoning and planning board approvals. The owners were not allowed to add buildings or amenities.

Whiting told Noonan today that the ZBA reached the conclusion in error because it was told incorrectly that there were campsites on the property prior to 1967.

The assertion that there were campsites prior to 1967 is merely a self-serving claim by the current owners, who couldn't possibly know whether it's true because they didn't live in the area at the time, Whiting said.

Neither Whiting nor Zoghlin shared what Cleere and Collins, who apparently grew up in the area, might know about campsites prior to 1967.

In 2002, the site was sold to Lei-Ti Too, LLC.

Lei-Ti applied for and received building permits to add buildings to the property as well as an above-ground pool and an in-ground pool.

These approvals were granted in apparent contradiction of the 1978 ZBA ruling.

Whiting said that these building permits, given in error, do not mean the current town board has no right to now enforce the local zoning ordinance. Zoghlin agreed.

"The long and the short of it is a building permit cannot grant rights in violation of zoning laws even if the permits were granted illegally," Zoghlin told Noonan. "Improperly granting a use doesn't prevent the town from later correcting the error."

She cited a case in New York City where a builder was ordered to remove the top 12 floors of a newly constructed building after it was found he received permission for the taller building in error.

David and Greg Luetticke-Archbell purchased the property in October 2008.

Whiting and Zoghlin claim they've increased the number of campsites.

Roach said, actually, they've reduced the number of RV sites from 167 to 157 and maintained the count of 30 tent sites.

What has perhaps caused a misunderstanding by the plaintiffs, Roach told Noonan, is that Luetticke-Archbell have run the business more successfully and attract more guests. More RVs at the campgrounds make it look like there are more campsites.

In July 2013, the Frost Ridge owners went back before the ZBA asking about the campground's nonconforming-use designation.

The ZBA -- and the county planning board -- determined it was a legal nonconforming use.

Whiting told Noonan the ZBA should not have reached that conclusion without consulting with the town's attorney, which is Whiting.

"The ZBA met in an informal session," Whiting said. "They did not seek my involvement. They didn't seek my counsel. They didn't interact with the planning board or the town board. I'm not hear to slam the ZBA. They're good people doing their best, but in these difficult matters, they should step back and seek the advise of counsel."

Both Whiting and Zoghlin argued that claims by the defendants that the statute of limitations has expired on the plantiff's legal standing to challenge the ZBA determination is faulty. Zoghlin said that by state law, the clock doesn't start ticking until the ZBA notifies the town clerk, and the town clerk was never notified.

Roach told Noonan that as an experienced municipal attorney, he finds Zoghlin's assertion unreasonable and out of step with actual practice throughout New York. New York law is complex and boards such as the ZBA are populated with volunteers and everyday citizens who do not know the nuances of every state law. It would be unreasonable to expect such boards to comply with every bit of minutia in state code, and in fact, he said, there's case law to support that conclusion. If the failure of a board to notify a clerk of a decision was upheld in the manner asserted by Zoghlin, there would be municipalities throughout the state that could find prior decisions challenged going years back. The clock started ticking on the statute of limitations, Roach said, when the decision was published in the board's minutes.

It was notable, Roach told Noonan, that there was no attorney in the courtroom representing the ZBA, even though the ZBA is named as a defendant in one of the suits.

Whiting said the ZBA was served but chose, by their non-attendance, not to be represented.

Roach responded, again citing his experience as a municipal attorney, that Whiting had the responsibility to ensure counsel was retained to independently represent the interests of the ZBA.

In June 2013, the town board passed a noise ordinance that prohibits unnecessary noise after 9 p.m. and prohibits noise that can be heard across a property line.

Whiting argued that one reason Noonan should grant the injunction against Frost Ridge is that the Cleeres can hear concerts on their property.

Roach argued in his court papers that the ordinance was clearly passed with the sole purpose of targeting Frost Ridge.

Greg and David claim Frost Ridge has hosted live music shows going back to at least the 1970s. Roach produced a photograph showing a large loudspeaker that was installed decades ago. Greg and David claim such loud speakers were all over the property at one time.

Roach said among his exhibits is a poster advertising a concert by the Ghost Riders in the 1990s.

The defendants claim they've had live music shows every season since 2009.

They've also produced two thank-you notes written by Marny Cleere in 2011 thanking them for tickets to a show and for running a good campground.

Zoghlin said the notes are being taken out of context. She also said her client doesn't remember being bothered by -- or even knowing about -- shows prior to 2011. The shows have gotten bigger and louder with each successive year since 2011, Zoghlin said.

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.

Zoghlin said these claims by Roach were hearsay and shouldn't be used as evidence.

The Luetticke-Archbells want to be good neighbors Roach said, and when they heard that the Cleeres had claimed to be bothered by the noise, they reduced the output of their loudspeakers on two different occasions and are prepared to lower the output again to 100 decibels.

 "The Cleeres have never come to my clients directly and said, 'we have a problem with the music,' " Roach said. "Not once. They've gone to the town, but never to my clients."

While the plaintiffs assert the concerts have grown bigger and louder, Roach said the Frost Ridge owners have actually reduced the volume of the loudspeakers and that no concert in the entire history of the "Jam at the Ridge" series has ever drawn more than 400 to 500 people. While conceivably, the venue could accommodate 5,000 music fans, no concert in modern times at Frost Ridge has ever drawn even a fraction of that size crowd.

As part of his answer to the complaints filed by the plaintiffs, Roach attached affidavits from 10 neighboring property owners who all stated that Frost Ridge doesn't disturb their peaceful enjoyment of their property and specifically rejected the contention by the town that Frost Ridge is a public nuisance and is doing irreparable harm to the neighborhood.

The signers are Mark Buchman, Janet M. Whitney, Paul Klein, Karl Kleik, Deborah Kerr, Drionna Hall, Barbara Buchanan, Doreen Paladino, Carrie Poray and Ameka Cooper.

Whiting dismissed the complaints in his argument before Noonan saying that all of the signers lived too far away to truly be affected by Frost Ridge and that this case "isn't a popularity contest." He said no number of duplicative affidavits would address the substance of the alleged zoning code violations.

Roach argued that all of the signers are either close neighbors or direct neighbors of Frost Ridge. Ameka Cooper, for example, lives directly across the street from the concert venue on Conlan Road.

The Cleeres did have a couple of supporters in the courtroom audience today: Jen Gilligan, who lives around the corner from Oatka Trail, and Steven Osborne, who said he lives on the other side of the hill from Frost Ridge. Both said they are bothered by the noise from concerts.

"It's loud," Gilligan said, "and when I put my children to bed, with the air conditioner on, I can still hear the thumping and the beating."

She said she's been to the Cleere's house during the day during band rehearsals and witnessed tables rattling from the noise.

Osborne said the noise problem got worse last year and really upset his wife.

"I don't have a real problem personally with the concerts, but the decibel levels are way up high," Osborne said. "I don't know if there is (a solution that works for all parties), but from my perspective as an old fart that I am, the law is the law and if they're not doing what the law says, then they need to change what they're doing or change the law. Isn't that the way it works?"

Noonan told all parties they can expect a quick decision on the request for a preliminary injunction. A ruling on the injunction either way won't, per se, settle the lawsuit. Regardless of who prevails or to what degree, the suit could, in theory, go forward, even to a trial stage.

Clarification from yesterday's story: We indicated the Le Roy Fire Department had found minor code violations. The items cited by the Fire Department were not in fact violations, but recommendations.

Monday, May 19, 2014 at 11:36 pm

Town of Le Roy lawsuit aims to end 50 years of camping and concerts at Frost Ridge

post by Howard B. Owens in business, Frost Ridge Campground, Le Roy

Greg Luetticke and David Luetticke, 
owners of Frost Ridge Campground
(file photo)

The Town of Le Roy has filed a lawsuit that, if successful, would put Frost Ridge Campground out of business.

Frost Ridge, according to the suit, is a cancer on the community.

The chief complaint in the suit is the summer concert series in the facility's natural amphitheater, but the complaint also says the campground violates the town's zoning law, and it has since 1967.

The defendant's uses and occupancy of the property, the suit states, "corrupt the general area so as to destroy the peaceful and quiet enjoyment of residents of the Town in the vicinity, having endangered, impaired and imperiled and threaten to endanger, impair, imperil the health of the public."

The campground, that paragraph continues, "(has) caused and will cause irreparable injury to the health, safety and welfare of the residents of the town."

No evidence of such harm is stated in the complaint, which was filed May 2.

While the suit purports to represent all the residents of the town, the town's own Frost Ridge file -- a copy was obtained by The Batavian through a FOIL request -- lists only one neighboring couple as ever filing any written complaints about Frost Ridge.

"By reason of the foregoing, Plaintiff and residents and taxpayers of the Town will continue to suffer great and irreparable harm, damage and injury from the further continuance of the public nuisance, which cannot be caused to cease except by the injunctive order and in a court of equity," the suit states.

Frostridge, operating under various names over its long history, was opened as a winter ski resort in 1957 and has included campground sites since at least 1961, according to the town's documents.

It's currently owned by David Luetticke and Greg Luetticke, who purchased the business in 2008 and moved from San Diego to Le Roy to operate it.

In 2012, David and Greg started a summer concert series, but records show they weren't the first owners to host live music at the campground.

Last summer, David and Marney Cleere started complaining about the concerts and since then the Town has built a long paper trail of town board meetings, zoning board meetings, attorneys' letters, accusations and counter claims as the town has sought to block David and Greg from bringing some of the nation's biggest country stars to Le Roy.

A hearing on the suit is scheduled for 9 a.m. in the Genesee County Supreme Court in front of Judge Robert C. Noonan.

The lawsuit takes direct aim at the concerts and an alleged plan by David and Greg to open a bar and grill called The Barn on the property.

It also accuses the previous owners of operating and expanding the property as a campground illegally.

"In June 1998, the Zoning Board of Appeals (ZBA) held a public hearing concerning the upcoming sale of the premises by Frost Ridge, Inc., to Molly Perry," the suit reads. "The ZBA determined, erroneously in the view of the current Town Board, that the use of the premises as a campground was a preexisting nonconforming use and thus could continue to be used as a campground after her purchase of the premises."

The property sits within a residential/agriculture zone that was established in 1967. The R/A zone in the Town of Le Roy typically allows only for single-family homes or various types of agriculture use, according to the suit.

The campground has undergone several expansions that violated even a nonconforming use allowance, if such a use were even permitted, which it doesn't, the suit states.

And now what David and Greg have done, and want to do, with their country music concerts and proposed restaurant and continued family camping fun is a cancer that must be eradicated, the suit alleges.

"The size and scope of the planned uses are unsuitable and inappropriate for the area, constituting a maligancy which cannot be allowed to metastasize any further," the suit reads.

The suit was written and filed by Le Roy attorney Reid A. Whiting.

In recent years, Frostridge has booked such name acts as Marty Stuart, the Little River Band, Restless Heart, the Nitty Gritty Dirt Band, Connie Smith -- a 2012 inductee of Nashville's Country Music Hall of Fame, Jerrod Neimann, Jo Dee Messina and Phil Vassar as well as rising stars like Blackjack Billy.

Last year's line-up included a homecoming show for Alexander native Krista Marie and her band The Farm.

The ampitheter can accommodate up to 5,000 people, making it a much smaller venue than Genesee County's only other notable concert venue, Darien Lake. But even so, while Darien Lake's concerts require a substantial law enforcment presense and dozens, if not more than 100 arrests, might be reported following a show, there hasn't been a single arrest reported at Frost Ridge related to a concert since 2011.

There is no immediate information available on the local economic impact of Frostridge, and David and Greg said they could not talk with the press on advice of their attorney. But from previous conversations with The Batavian over the past view years, we know they book thousands of guests every season as well as attract tens of thousands of tourists to Genesee County for their concerts.

Each season, they employ nearly 40 people for concerts and camping.

The town's file on Frost Ridge also contains an apparent notice from earlier this year of violations and an order to cease certain activities, listed by code number. It's signed by the town's code enforcment officer, Jeff Steinbrenner.

David Roach, attorney for Frost Ridge, responded March 17 and stated the notice was dubious in meaning, sweeping in scope, constituted discrimintory enforcment because only Frost Ridge is targeted and runs counter to findings in 1989 and 2013 by the town Zoning Board of Appeals that the campground was operating legally as a preexisting, nonconforming use.

Roach accuses the town of merely perpetuating a political agenda driven by the Cleeres.

"We are aware that one married couple, David and Marny Cleere, just last year expressed their displeasure for the first time with the ongoing 50-plus year tradition of live music at Frost Ridge," Roach wrote. 

He continues, "they in fact demand the town 'abate the violations of the Town Code,' in what seems like a frontal assault on Frost Ridge's very existance. If not entirely arbitrary and capricious, the town's intended action against Frost Ridge may be construed as furthering the Cleere's personal agenda, which has absolutely no legitimate bearing on Frost Ridge's compliance with the Zoning Code."

The suit also alledges that the campground's current use and configuration constitutes a serious fire hazard to the surrounding area, campground guests and the campground's owners.

The town's file on Frost Ridge contains a Jan. 9 letter from the Le Roy Fire Department finding five minor possible fire safety violations, including problems with signage, no site map and no letter in the department's file on how many permanent residents there are at the campground.

The campground sits on two parcels of a combined 31 acres with an assessed value approaching $130,000.

Marty Stuart performing at Frost Ridge, Sept. 2011.

Alexander native Krista Marie peforming at Frost Ridge, August 2013.

Blackjack Billy performing at Frost Ridge, June 2013.

Phil Vassar performing at Frost Ridge, July 28. During his performance, Vassar praised Frost Ridge. He praised the setting. He praised the hospitality. He praised the acoustics of the venue. "This is a special place," Vassar told the crowd after his fourth song. "We play a lot of places around the country and there's no place else like this."

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