There's no dispute that there was live music at the Frost Ridge Campground in Le Roy prior to 2008, and there's no dispute there was amplified music there, either, said an attorney representing the family that brought suit against Frost Ridge seeking to shut down its summer concert series.
Those prior acts, however, do not constitute a prior use of Frost Ridge as a concert venue with amplified life music, Mindy Zoghlin told Judge Robert C. Noonan during a hearing in Superior Court today where Zoghlin and Town of Le Roy Attorney Reid Whiting argued that Noonan should favor them with a ruling barring amplified live music and demanding relief from other alleged zoning violations.
(The record) at best establishes there were people playing music around the campfire and when there were skiers there was amplified music," Zoghlin said.
David Roach, representing the owners of Frost Ridge, David and Greg Luetticke-Archbell, told Noonan that and other points raised verbally by Zoghlin and Reed were addressed in his written memo to Noonan answering their motions for summary judgement, so he wasn't going to belabor the points today.
In the memo, Roach argues that there were live music shows at Frost Ridge under prior ownership that were open to the public.
In fact, Roach argues, that everything from the live music issue, to the camping use of the campground and current structures on the property, all fit within the prior, non-conforming use of the property.
Even if those uses have expanded, he argued, case law favors Frost Ridge.
"Nothing in the record indicates Frost Ridge has ever changed its recreational use or expanded it to something non-recreational," Roach wrote, citing a case known as Hollow v. Owen. "'...a mere increase in the volume or intensity of the use is not necessarily an extension or enlargement of such use.'"
Among the reasons Zoghlin said Noonan should find in the favor of her clients, David and Marny Cleere and Scott and Betsy Collins (Marny and Betsy are sisters and granddaughters of the original property owner), is that a Zoning Board of Appeals (ZBA) determination that the concerts fell within prior, non-conforming use was, essentially, illegal.
Noonan has already ruled that the ZBA failed to provide proper public notice of the meeting in 2013 where the board came to a unanimous conclusion that everything at Frost Ridge, including live amplified music, was permissible because of the historical use of the property.
The property became a ski area and campground in the 1960s and later new zoning laws were adopted by the Town of Le Roy that made the area a residential/agriculture zone.
There's no way, Zoghlin argued, that a concert venue falls within the town's definition of an R/A zone.
Roach argued that Noonan's ruling on the public notice issue went merely to the procedural sufficiency of the notice, but did not overturn the finding. Citing case law, Roach argues that even granting the notice issue, the ZBA had the authority to make the determination.
Zoghlin wants the ZBA determination overturned, arguing that the decision was reached in such a defective fashion that even referring the case back to the ZBA would be inappropriate.
Roach told Noonan that such a ruling would still result in the ZBA taking up the issue again, and the ZBA would likely reach the same conclusion, and then that determination would result in new lawsuits by the current plaintiffs (Cleere and Collins and the Town of Le Roy), so Noonan would then be dealing with four lawsuits total over one single issue.
If Noonan finds the ZBA determination defective, the only reasonable action, Roach said, would be to refer the case back to the ZBA to cure the procedural defect of its original determination (meaning, hold a properly noticed public hearing).
At the end of the hearing, Noonan reserved his decision and promised a written decision soon.
If Noonan doesn't issue a summary judgment in favor of the plaintiff's, the suit will proceed, perhaps, eventually, to a jury trial. If that's the case, Zoghlin said, Noonan should reinstate the temporary restraining order barring live amplified music at Frost Ridge.
Roach said that such an order would put Frost Ridge out of business and therefore impermissibly grant the plaintiff's the ultimate outcome they seek through the lawsuit. He also argued that during the period last summer when concerts were once again allowed at the campground, there were no complaints, no arrests, no disturbances and a deputy was positioned in the neighborhood to monitor noise and found the venue in compliance with Noonan's orders. The town has also established a noise ordinance, rendering moot the need for a restraining order.
So far, six concerts at The Ridge have been booked for the summer.
For our prior coverage, click here.
