Noonan grants temporary injunction against amplified music at Frost Ridge
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.
What a bunch of crap!
I agree with you, Carl. There is always those people who ruin things for others. The concerts there are very organized & controlled. It is not like it is a free for all bash with wild & crazy people,like at Darien Lake. Maybe Judge Noonan needs to attend a concert there & see for himself, just how nice it truly is.
Always the DO GOODERS trying to ruin the GOOD things. Judge Noonan should take into account how many times the police have had to be called for disruptive behavior and such.
Has anyone stopped to think about how much these gentleman have invested in time and money to prepare for these concerts. They have to go to great lengths to book these national acts to come to little Leroy. When the ZBA says they are in accordance so that they proceed with booking these performers and then find out they are not, who will pay in the end? Frost Ridge does....all of those retainer fees, publicity, equipment, reservations. Talk about trying to keep small businesses going strong in NY....how about putting businesses in the red and having to close. My family has been camping here for a few years now and we absolutely love it. Our children look forward to the concerts, where else can you take small children to a country concert and not expose them to mayhem that they don't need to see. I can put them to bed at night with the windows closed in the camper and only hear minimal sound, I can only imagine how minimal it is for the neighbors down the road and over the hill. I hope that people think about the economic impact on the county and town. Let Leroy keep paying lawyer fees and now a possible judgement. I hope that Judge Noonan sees that this is ridiculous. We enjoy all the aspects of Frost Ridge and wouldn't change a thing, its a great family atmosphere. Can't people leave well enough alone.
This is just horrible!
And the town gets to set a limit on how much they can sue for?!?!?! Are you kidding me? So if the town, without consent of a majority of its residents (at least what it appears on here) continues these proceedings and loses, they can only liable for "...$225,536 in damages"?
What if it costs these gentlemen more than that? What about the employees that may see their hours declined? Can they sue separately?
I find this entire process to be inane, and while I will respect both the owner's wishes for patience (Which I find very affable), and Judge Noonan's position to what has been presented to date, I think it is safe to say that if this ends in the shuttering of this venue, Leroy will lose on multiple fronts.
Yeah, the rule of law. What a load of crap!
But, y'all are forgetting, "New York is Open for Business".
"Hey, you over there. What's that? Oh, you need $2-million in tax abatements, 'cause you want to hire 4 more people? OK, there ya go. ALWAYS willing to help our new neighbors, Neighbor.
"NEXT!! What's that? You already have a business that employs 38 people, and contributes $$$'s to the local economy? Sorry, I got nothing for you. POUND SALT! Huh? Well, you shoulda got here THIS year. THIS year we're Open for Business. Bad timing on your part.
As for the 'LAW', zoning variances are given out many, many times. Guess the old saying still holds true - "It's not WHAT you do. It's WHO you do!!"
I think you got the picture Ed.
Frost Ridge is a great location for a niche concert venue and the Jam at the Ridge series has been quietly adding to the economy without ever really hitting the radar. As the owners gain experience, they're trending to bigger names like Marshall Tucker. Whiting's cancer metaphors are over the top but the town can't be blamed for asking how far the ramp-up can continue under a grandfather clause apart from normal planning. Little by little this is increasingly different than piping music in to the bunny hill or bringing Ghost Riders for the campers.
According to last August's town board minutes, Frost Ridge withdrew a request for a special use permit, apparently believing they would survive legal challenge. That may have been a mistake. I think the Ridge will prevail on camping, but apparently will not get a broad win and will need to negotiate at least for concerts and other additions.
While neighbor issues should be given weight, I think approval for the site use is doable. I do not know the power personalities in LeRoy, but there is rough public consensus that Jam at the Ridge is a plus and that the Ridge's growth should be encouraged.
Since the original story earlier this week I have learned that there was an attempt to mediate these issues last spring which lead to Frost Ridge seeking the special use permit that they later withdrew. I don't know why it was withdrawn or how we got from there to here, but it appears that the answer to the question regarding was there an attempt at mediation prior to litigation is "yes".
You see children, this is why we can't have nice things!
This is New York State at its best, the busy body state rears its ugly head again.
Frank, I think you've called this one wrong. New York State likely has no idea that Frost Ridge exists. This is a case of small town lethargy gone sour. As long as this was a hackneyed ski area with a few camp sites and an occasional teen-band performing in the snack shop, the official position was to have no position: out of sight, out of mind. Everyone knew the property (as used) was non-conforming but didn't give a hoot, because it was a harmless summer retreat for a handful of locals.
Now skip ahead to 2013. ...Don't forget: the area in question is on a winding road, barely two lanes wide and in the middle of nowhere; no public water, no public sewer, no fire hydrants. It's around the corner from Oatka Trail which is not only narrow and winding but a steep hill looms where the two roads intersect.
The concerts have gotten progressively bigger; the shows are in the public eye with advertising and publicity. A restaurant is added. Headlines invite the scrutiny of county agencies (zoning, health department, fire inspectors, public safety) who immediately recognize Frost Ridge is operating outside the scope of legality. One might blame the town. Their lack of action seems negligent and irresponsible. More likely, someone in the know pointed out that the questionable status reflects on the owners, town, guests, neighbors and their respective insurance coverage.
It goes without saying; the zoning and use permissions should have been nailed down long ago.
I feel bad for the owners who have undoubtedly invested beaucoup bucks, time and energy into this project. On the other hand, they also knew their property was non-conforming.
CM, It's a NY state of mind.
Without knowing much of the legal details, I am most disappointed in Judge Noonan's decision, it sure seems arbitrary.
I'm sure Frost Ridge has a huge financial liability in the balance here [concerts booked, advertizing produced, tickets sold, etc], and since they have operated for a number of years, I feel there should be a "past practice" condition that would at least allow Frost Ridge to continue and honor their commitments for the coming season.
If there is in fact a legal reason why they must stop now, I feel that the community to which Frost Ridge has, and is paying taxes to should have to compensate them for the financial loss that they will encumber by this action. It's not as if they were operating all this time and no one knew about it.
Lastly, if Frost Ridge is deemed to not be allowed to continue their venue at their present location, then GCEDC should step up and provide financial assistance to the owners so they can relocate their successful and growing operation. Isn't that what they do?