A proposed local law adds a new wrinkle to the controversy surrounding outdoor concerts at Frost Ridge Campground.
The Le Roy Town Board last Thursday, voted unanimously to withdraw from a 2004 intermunicipal agreement that established a joint town/village Zoning Board of Appeals.
Instead, Local Law No. 3 would establish a new, three-member town Zoning Board of Appeals effective Jan. 1, 2016. The Town Board would appoint two people to a new ZBA.
A public hearing on the proposed law is scheduled for Dec. 10.
“We feel as a board … that it would be in the best interest of the town going forward, to have a new, objective, impartial ZBA,” Town Supervisor Steve Barbeau said this week.
The current ZBA determined in September 2013 that concerts were a prior, non-conforming use — or “grandfathered” — at the Conlon Road campground because they predated the creation of a residential-agricultural zone in the area. That decision led to a pair of lawsuits filed by the town and the Cleere/Collins family against Frost Ridge and its owners, David and Greg Luetticke-Archbell.
Supreme Court Justice Robert C. Noonan ruled in April that failure to issue a public notice of the meeting invalidated the ZBA’s 2013 decision. Noonan’s ruling returned the matter to the ZBA for consideration.
Barbeau said the resolution approved last week was prompted by three considerations:
— The ZBA will eventually determine the legality of concerts at Frost Ridge;
— It is “likely, or at least possible” that whoever receives an unfavorable decision will file a lawsuit; and
— The Town of Le Roy will be obligated to defend the ZBA’s decision, either for or against Frost Ridge.
“Is it likely the same ZBA can be totally objective in reviewing the same issue going forward?” Barbeau asked.
The answer, he said, is no.
“That’s something any attorney could potentially seize upon,” he said.
The Town Board took several issues into consideration, Barbeau said.
The first was that Noonan’s determination that the 2013 meeting was improperly conducted — “the issue that cost the town a lot of turmoil and a lot of money,” Barbeau said — reflects poorly on the current ZBA. The board has nevertheless been “vehement” in supporting a decision he said was made without consulting the town attorney, without carefully weighing evidence and with no public input.
The ZBA has also retained its own legal counsel at cost to the town while insisting the elected Town Board has no oversight of the matter.
“A blank check,” Barbeau said. “They’ll hire who they want and we’ll pay for it.”
Another issue relates to ZBA member Robert Scott, who was appointed by the Village Board earlier this year. His candidacy for town supervisor in this month’s town election was supported by Frost Ridge owners, Barbeau said.
Barbeau said a final matter is unrelated to Frost Ridge but has arisen since litigation began.
“There’s quite a bit of evidence that one or more members of the ZBA, either directly or indirectly, have suggested the Town Board has no authority to issue special use permits with conditions attached … and that any such issuance is subject to appeal back to the ZBA.
“That’s 100 percent, totally inaccurate,” he said.
There are currently five members of the ZBA. Two members — Debbi Jackett, who chairs the board, and Marty Brodie — were appointed by the Town Board, as was Ken Mattingly, who serves as alternate. In addition to Scott, village appointees are Thomas Spader and Charles VanBuskirk.
Members serve five-year terms. Jackett’s term expires at the end of 2017, and Mattingly’s term expires in 2018. Brodie’s term expires this Dec. 31.
If the Town Board agrees to create a new, three-member ZBA, it would thus also appoint two new members. Terms would be for three years.
As a courtesy, village Mayor Greg Rogers was informed of the Town Board’s plans before last week’s vote, Barbeau said. Dissolving the shared ZBA would not affect the town Planning Board or the code enforcement officer, whose position is funded by both municipalities.
“If we have a separate, smaller ZBA that’s only concerned with town code and not village code, and they have a three-year term instead of a five-year term, it would be more effective and efficient overall,” Barbeau said.
“Not that there won’t be litigation, but we’ll know the process was done correctly and the opinion was impartial and objective,” he said. “It makes it a lot easier to defend the ZBA, and it makes it a lot harder for a petitioner to find fault with the ZBA.”
Frost Ridge owners and supporters reacted with derision after Thursday’s vote.
David Luetticke-Archbell called the move to replace the ZBA “purely political.”
“This was referred back to the Zoning Board that is currently in place,” Luetticke-Archbell said. “To try to change (the ZBA) and then appoint people immediately prior to a decision simply to affect the outcome — that’s not what the rule of law is all about.”
Noonan’s decision that handed the issue of Frost Ridge concerts back to the ZBA was issued in April. The Luetticke-Archbells have been trying to obtain a hearing since then — without success, he said.
A series of issues — problems with paperwork or legal notices, or absences of ZBA members or attorneys — have kept postponing action on the Frost Ridge application. (See additional note, below)
“We’ve done our part to try and get this done, and each time, there’s been an obstacle put in the way,” Luetticke-Archbell said. “The Zoning Board, as far as I know, has not had anything to do with these delays.”
There’s at least one point of apparent agreement: Whatever the ZBA ultimately decides, the matter will return to Supreme Court.
“Truthfully, if (the existing) zoning board says ‘no, we’ve changed our position,’ I could probably accept that,” Luetticke-Archbell said. “But to put another board in that you’ve handpicked? I can’t really say.”
David Luetticke-Archbell, owner of Frost Ridge Campground, submitted the following statement to clarify and expand on why Le Roy’s Zoning Board of Appeals has not met to reconsider the issue of concerts at the campground:
The ZBA members were not absent. I was told they were, but they were all in attendance for the August meeting. The attorney who could not be present was (counsel) for the Cleeres. That attorney felt it was adequate to send an alternate to court on her behalf in February 2015, but insisted on taking a holiday on September 22nd stating that the date needed to be rescheduled.
The other pertinent information missing from this article is that (town Code Enforcement Officer) Jeff Steinbrenner failed to publish the public notice for a July date. This was the second time this happened. The first time was for the original date in September 2013 and one of the primary reasons Judge Noonan cited for remand this time. By the way, it was Jeff Steinbrenner who failed to publish the public notice for September 2013 as well. The “problems with paperwork or legal notices” is that Reid Whiting, attorney for the town, doctored up the public notice on August 27th, 2015, by changing the wording to be different from what was in the application from Frost Ridge. This led the way for appeal due to the notice being defective.
This notice was actually two notices. A correct version sent to Frost Ridge and a doctored up version sent for publication. Both of these are signed by the Town Clerk, who was out of the office for two weeks while these were being written. By the way, the town attorney, Reid Whiting, performs his duties at the direction of the Town Board Supervisor (Steve Barbeau). This is the same attorney, that Steve Barbeau claims should have been consulted by the ZBA for the initial interpretation. The same (counsel) who stated in court that the ZBA did not wish to be present, when the fact is that they were not properly notified that they were a party to a suit. They didn’t find out until they read it in the news. They could not utilize the Town Attorney because they were being sued on the same issues as Frost Ridge and that would be a conflict of interest.
Jeff Steinbrenner, the Zoning Enforcement Officer, is an employee of The Town Of LeRoy and reports directly to the Town Board Supervisor, Steve Barbeau.
If there is any question about who is delaying this interpretation, these facts all point to Steve Barbeau.