Attorneys argue fate of Frost Ridge and now await ruling from Judge Noonan
|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.
This imho sounds like a witchunt with sources in some bitterness over what their grandmother did. Seems that Collins and Cleere are being picky and petty. If what Luetticke-Archbell testified is true (which can be proven but I'm sure the plaintiffs will deny experts access to their properties to test decibel levels) then this could be put to bed easily.
Seems like Luetticke-Archbell have been successful and now those who might have had dreams to inherit Grandma's dream are jealous and using the Town of Leroy to interfere with the success of these two gentleman. My conclusion for this is the fact that that by my count...
This really points to that conclusion:
"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."
This plus the back and forth from witnesses. Seems that 10 neighboring properties disagree that there is a nuisance at all, while a couple of the plaintiffs friends do.
IMHO the citizens of the Town of Leroy need to tell their Town Govt that they should remove themselves from this lawsuit. Seems that all the Town is doing is working as a second set of lawyers for these citizens. I don't believe for a minute that in today's economy a peaceful and successful business venture that brings such money and business traffic to the Town and county should be shut down. Thats not even counting the ancillary moneys the local stores and resteraunts make while all these attendees are here in the locality as well.
Kyle, according to the article, a sound engineer was hired by Frost Ridge, and the decibel level at the Cleere's home was 51 decibels.
"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."
Collins and Cleere are jealous. If the campground was not successful they wouldn't care. I don't recall any issues while under the ownership of Lei Ti Too.
All I can say is 'SHAME ON YOU Collins and Cleere!!! As for the Town of Leroy...I can find no words but all I can say is typical bureaucrats on a power trip. Barbeau, what a joke. The Town Supervisor arrested 8/13 for harassment and the town of Leroy condones this behavior. Need I say more about the integrity of these people?
How would you like your donut and Christmas tree business to come under attack?
To spend so much time and energy on something so petty all I can say is you have obviously never had to experience sudden death of a family member, a child with a life long illness, or a family member or friend suffering day in and out from cancer.
Ignorant and sad behavior over nothing!!! Hey, but look at all the money flowing through the legal system...Why don't you send all that wasted money to an animal shelter or for a cure for cancer? Or just toss it out the window for the poor. Waste!
Here's some age old sayings you may want to practice....Let it be! Be the solution not the problem. Mind your own business, and oh yeah Get a Life!
Embarrassing for the Town of Leroy as a professional entity!
Individuals, well they can't help being ignorant.
After reading all this, I don't think this is going anywhere. If there was a real problem, there have been 3 separate times since 1998 that the town could've put a stop to it. In 1998 the ZBA declared it a legal campground(which includes music entertainment). In 2002 when building permits were issued-in error or not. And in 2013 when " the Frost Ridge owners went back before the ZBA asking about the campground's non-conforming use designation.
The ZBA -- and the county planning board -- determined it was a legal non-conforming use." And the best part of the hearing was when the owners "produced two thank you notes written by Marny Cleere in 2011 thanking them for tickets to a show and for running a good campground." As well as the noise level at the Cleere's home "which is 11 decibels above a rain drop and 7 decibels less than the nearby creek." LMAO... LeRoy, and Reid, LEAVE THEM ALONE!!!
Is there any way (once this fussing and feuding is over) we can get McPherson's orchards and cider mill back? In my mind, all cider is judged against the standard of McPherson's.
I met Janet years ago, several times. She was a very pleasant person, extremely intelligent and interesting to talk to. I met her granddaughters a few times also and they were full of themselves. Borderline arrogant in their what they verbalized in my presence about other people. I was flabbergasted at the time in how they conveyed they knew that were above others when their grandmother never engaged herself that way. These women actually think they are special in Leroy due to the history of their family. We are talking about a family that has been in Leroy, living on the same property that has been handed down through the generations, hundreds of years. Janet had such interesting stories about that, she made it sound amazing in her recall.
I will say that I do not find their play dealing with this issue being unneighborly way ( speaking first to the party they had issues with) but instead taking a hard stance right to the powers that be about the issue they have . IMO I believe this is telling in why they are taking this stance. " Who do these people think they are to try and change my enjoyment of my property?! We will see about that!" is what I think is the what is really going on here. You'd have to meet these women and understand their arrogance about others, how they if feel if someone or something is not up to the elitist standards it can get ugly.
This is a fail on the powers that be in Leroy if they cave to these people. Its a business that Leroy should try to help since it sounds like the Frost Ridge people are trying hard to comply with issues that have cropped up. Shut them down? It makes little sense. JMHO
Save the character assassination for the court room.
I don't like that the Town is spending my money to try to shut down Frost Ridge, but I do feel that I need to reiterate that there are several sides to every story and my experiences of Marny have always been extremely positive. I imagine that, like the owners of Frost Ridge, the Frost sisters aren't able to talk about this on this forum. It seems unfair to attack them personally when they can't even defend themselves. My hope is still that this can be worked out in a way that continues to benefit our community as a whole, but maybe we should still be nice to each other in the mean time.
The comments are borderline. Against a purely private individual it would be an easier call, but when you file a lawsuit, you put yourself out there publicly a bit, especially a controversial lawsuit against a popular local business. Such an action invites criticism.
Again I dont know either party here. I clearly state these are my opinions on reading the details Howard posted on THIS story. I have a feeling that there will be some pressure soon and the Town will withdraw it's suit and leave things to the Frost Sisters vs Luetticke-Archbell Brothers. Since engineers for both sides have proven that the concert noise is negligble compared to local brook noise and even raindrops. (As Raymond Richardson pointed out)
Again someone needs to organize not just a citizen outcry at the town's involvement but merchants and resteraunts that reap the benefits of the traffic and people that this brings to the area need to speak out as well.
As for the Frost sisters not being able to speak out. Well I dont think thats a problem unless they have something to hide. The Luetticke-Archbell brothers are defending themselves which is a little different. Mr. Reid doesnt seem to have a problem discussing the Town's lawsuit....
As for the ressurection of orchards and cidermill that Baron's mentioned I'm all for that. I grew up in Adams Basin and our neighbors and I used to make the annual trips to Kelly's Apple Farm, for fresh made doughnuts and the cider fresh from the cidermill. While the parents secretly (or not so secretly as we kids knew about it anyway) Sampled hard cider produced from Kelly's cider.
People shouldn't be surprise about the arrogance of some people in LeRoy. There are several people who feel they are better than others in LeRoy. One of the most arrogant people in LeRoy is the one that is representing the Town of LeRoy.
I cannot believe that anyone would want to deny a business that, brings at least $1.8 million in local economic impact accounting for $148,000 in sales tax revenue for the county and doesn't have a truly negative impact. It boggles my mind that this is an problem. It is really no surprise I guess? Afterall, Obama claims those who are successful, did not build their success.
Regardless of whether camping goes back to 1963 or 1967 seems insignificant. Either year should allow for a sufficient length of time that a "past practice" be constituted. Further, it sure seems that the current owners are most willing to work to improve the noise complaints. Perhaps an earlier noise curfew would help(?).
Frost Ridge is a relatively small operation in comparison to Darien Lake. I'd love to see the neighbors who hear the concerts performed there at I'm sure much higher SPLs, try and shut it down... Ha ha... LOL.
I mean what's next one neighbor stopping another from having graduation parties or wedding receptions outdoors with music?
Nostalgia is nice ("Sica's, anyone?) but, you should raise the bar a tad, CM. "Castile Cider Mill" is better on both counts (cider and fry cakes) and "Lain's" in Arkport is probably the best in all of Western NY. In fact, it's an experience like no other.
LOL Kevin we all grew up with our local favorites. I consider all of us blessed no matter which we consider better. Mostly because we have these places to be nostalgic about. Other apple producing states dont have as many as we have in our little slice of NYS.
So no matter who you think is the best in cider and frycakes, we all end up winners.
Wow, this country was formed from 'emotions'. I love it.
But what I love more is freedom. I fought for it, protected it and rely on it.
Yes there are sides, people and their desires.
We have to think of 'Today'. It's tough out there. The joy of having a camp ground out there feels good.
The people running the grounds need to be proud of themselves. Their work ethic is beyond reproach. They apply a 'human touch' we so badly need in this country.
And yes, the government DOES NOT know what's best, their agendas only says; "Hey look at me, I'm working here!", "Elect me again". No different than anywhere else.
But that doesn't make it not sad.
We should be proud we are trying to stay ahead of the game as a viable town, instead we are falling into the prevailing Washington traps, questionable governing, personal agendas.
All I have at this time is prayers I get to keep MY freedom and sense of self worth.
Keep up the fight guys!