The current Zoning Board of Appeals in Le Roy will conduct a hearing on an application by Frostridge Campground for live music concerts by Dec. 18, Interim Supreme Court Judge Mark Grisanti ruled this morning, and any further interference by the Town of Le Roy board will constitute contempt of court.
Almost as soon as the case was called and the five attorneys from the two opposing camps were standing at their tables, Grisanti expressed dismay that even though Judge Robert C. Noonan ordered such a hearing seven months ago it still hasn't taken place.
Reid Whiting, attorney for the Town of Le Roy, blamed Frostridge and the ZBA for the delay.
"Frostridge has been sitting on its hands for seven months and for some reason the ZBA did not give proper public notice," Whiting said.
David Roach, attorney for Frostridge, clearly couldn't believe what he was hearing.
The delay was certainly the fault of the town board, Roach said, first by firing the original ZBA attorney, throwing the process into confusion, then by rewriting the ZBA's public notice so that it no longer reflected the true nature of the hearing.
"We come here with clean hands," Roach said.
After months of delay, there was an election in November, and Supervisor Steve Barbeau retained his seat. At its first meeting after the election, the town board decided to end its inter-municipal agreement with the Village of Le Roy for a joint ZBA and scheduled a public hearing to disband the ZBA and appoint a new, town-only zoning board.
Grisanti ordered the town not to conduct that meeting as scheduled Dec. 10.
"I know what's going to happen (if they meet)," Grisanti said. "I can see the town putting up some other kind of roadblock."
Grisanti also ordered Jeff Steinbrenner, who is the code enforcement officer, but also ZBA's secretary, to help ensure the notice of the meeting is sent out properly.
In the notice originally drafted by the ZBA, the notice said the hearing would be about whether live music concerts constituted an allowable non-conforming use. Somebody with the town changed the language of the notice to say the hearing was about "permissible use," which after court today, Roach explained, are diametrically opposite issues.
Frostridge has always maintained that under the code as it exists, operating a concert venue is not a permissible use, which is why they are seeking a variance as a prior (meaning similar activity took place before the current zoning law was passed) non-conforming use.
The current ZBA previously determined the concerts were a prior non-conforming use, but Noonan ruled the meeting where that decision took place was conducted without proper public notice, which is why he ordered a new public meeting.
That failure of proper public notice is one reason the current board needs to be disbanded, Whiting argued in court. The board failed to do its job properly.
He argued, also, that the issue isn't whether the concerts are a prior non-conforming use, but whether they are permissible.
Roach countered that Whiting was getting into the merits of the issue, which is a matter for the ZBA to decide and not a subject of the motions being considered by Grisanti.
David and Greg Luetticke-Archbell have owned Frostridge since 2008 and began holding concerts in the campground's natural amphitheater in 2012. The campground has been known by various names since 1957 and was once a popular local skiing location. Prior owners, and before the current zoning law making the area Residential/Agriculture, reportedly had both live music and amplified recorded music.
More than a year ago, neighboring families, the Cleeres and Collins, both related to the original campground owners, filed a lawsuit in parallel with the Town of Le Roy alleging impermissible and uncorrected violations of the zoning laws, both in the composition of the campground and the series of live music concerts hosted there.
After the hearing, Roach said one issue Grisanti didn't get into that he wished had come out was the claim by the town that the town is facing budget constraints and the ZBA is running up costs by hiring outside counsel (James Wujcik represents the ZBA now).
“If you’ve got a budget problem, town, don’t sue my client," Roach said. "You already have the Cleeres suing my client for you. They filed a town law 268 action. They stepped into the shoes of the town to enforce the zoning code. The town, filing its own lawsuit, is merely redundant and it is a monumental waste of taxpayers’ money.”
For prior coverage, click here.