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Frost Ridge Campground

September 1, 2016 - 10:17am

The latest legal challenges to live, amplified music at Frost Ridge Campground in Le Roy have been dismissed by Judge Emilio Colaiacovo, meaning owners David and Greg Lueticke-Archbell will be able to continue their concert series, Jam at the Ridge.

Colaiacovo ruled that the Zoning Board of Appeals acted with appropriate consideration and diligence when deciding live, amplified music was a prior non-conforming use and that there was no substantive violation of the state's open meetings law when it reached that decision in February.

Attorneys for David and Amy Cleere and Scott and Betsy Collins challenged the ZBA's decision on both of those counts.

The decision seemingly concludes two years of legal fights initiated by the Cleeres and Collins and initially backed by the Town of Le Roy.

The plaintiffs maintained all along that Frost Ridge violated the town's zoning laws, because it is in an agricultural-residential district, by hosting music concerts at the campground.

The owners and their supporters countered that both live music and amplified music had been part of the operations of the campground since the 1960s, which means those uses were grandfathered in, or prior, non-conforming uses, before the R-A district was created.

The ZBA met at least twice prior to the lawsuits being filed and sided with David and Greg Lueticke-Archbell, but Judge Robert C. Noonan, who retired earlier this year, ruled that the ZBA meetings where these decisions were made were not properly noticed (a violation of the state's open meetings law), so he ordered the ZBA to hold a new public hearing.

The town board then tried to disband the ZBA -- which at the time was a joint board of the town and the village -- but Noonan barred dissolution of the ZBA until after it conducted a new hearing and issued a decision. 

The ZBA met in December and collected documents and testimony at the time, but never publicly deliberated the issue and issued its decision without a public vote in February. 

Colaiacovo ruled that even if these actions were a technical violation of the open meeting law, the record is clear that the ZBA members had ample information about the issue without the need for public deliberation and there was no evidence presented that the matter was discussed in a closed meeting by the board. 

"The Court finds that the alleged failure to vote on its decision in public is a de minimis technical violation that, in light of the exhaustive record and consistency of the ZBA's determination that there exists a prior, non-conforming use, injunctive relief is not warranted," Colaiacovo wrote in his decision.

Colaiacovo said it was not the court's place, based on case law, to decide whether the ZBA reached the correct decision, only that the decision was reasonable and not arbitrary and capricious.

The mere fact that the plaintiffs disagree with the decision is not evidence that it is arbitrary and capricious, he said.

Courts must be careful, according to case law, not to overturn local decisions that are based on substantial evidence and are rational, he said.

The record shows the ZBA had a substantial amount of testimony and evidence to consider that seemed to back the conclusion of a prior, non-conforming use, he said. 

"The ZBA held that these activities occurred to varying degrees prior to the adoption of the Town Zoning Code," Colaiacovo wrote. "The ZBA referenced Mr. (Eugene) Sinclair's testimony, which established that the defendants' actions were 'consistent with the essential character of the property as a prior, non-conforming use.' Accordingly, the ZBA, after exhausting its reasons for its determination, found that the use of the property as a campground, which permitted live and recorded music, limited food service, and allowed the use of recreational vehicles, was a prior, non-conforming use as permitted by the Town of Le Roy Zoning Code.

"Based on the foregoing," he continued, "the Court finds that the determination of the ZBA is based on substantial evidence that was made part of an extensive record. As such, because the ZBA had a rational basis to reach its decision, this Court will not disturb it."

He added, "Nothing in the record demonstrates that the ZBA reached its determination haphazardly."

June 25, 2016 - 6:05pm
posted by Howard B. Owens in Le Roy, Frost Ridge Campground, news.

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When 16-year-old Sterling Green saw a little boy at the bottom of the pool at Frost Ridge Campground this afternoon, and she saw bubbles gurgling from his mouth, she thought to herself, "I think he's drowning."

The daughter of one of Le Roy's volunteer firefighters, Green did what came natural to her. She jumped in the water to rescue the child.

Her father, Michael Green, was at her side when they got the boy to the pool's edge. The boy's mother came running up, asking, "Is that my boy?" Somebody told her it was. 

The mother tried performing mouth-to-mouth resuscitation her her six-year-old son, but Green told her, "let him try to breathe on his own."

They turned the boy on his side.

"He was really blue, then he starting coughing and crying after he vomited," Micheal Green said. "He started talking to us and the paramedics showed up and took care of him, and he seemed good when he was on his way to the hospital."

He was carried by his mother from the pool to the waiting Mercy EMS ambulance and transported to UMMC Strong Memorial Hospital for evaluation.  

Sterling said she was sitting poolside and talking with her mother, her aunt and her sister when one of them spotted the boy at the bottom of the pool and pointed out that he didn't appear to be coming up. 

They don't know how long the boy was under water.

Green said he couldn't be prouder of his daughter.

"I’m a firefighter and she’s just following the footsteps," he said.

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June 12, 2016 - 12:34pm

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Collin Raye, who is celebrating 25 years as a recording artist this year, opened the 2016 concert season at Frostridge last night with a set that highlighted his #1 hits and other fan favorites.

Before the show, he met with fans who had purchased VIP passes, including one who presented him with a handmade guitar strap. He also posed for a picture with Frostridge owners David and Greg Luetticke-Archbell.

Among the opening acts were the Morgan Twins.

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February 26, 2016 - 1:00pm
posted by Raymond Coniglio in Le Roy, Frost Ridge Campground, business, news.

The Le Roy Zoning Board of Appeals ruling in favor of Frost Ridge Campground, may have been one of its last as a joint town/village body.

The Town Board is moving forward with plans to consider creating an independent town ZBA.

The board voted unanimously on Thursday to schedule a public hearing for 7 p.m. March 10 on proposed Local Law No. 1 of 2016. The law would establish a three-member town ZBA.

This is the second time the board has scheduled a hearing on the proposed law.

Last November, the board voted to withdraw from the 2004 intermunicipal agreement that created the joint town/village ZBA. A public hearing on a law to create a separate town ZBA was scheduled for Dec. 10, 2015.

That decision came before the ZBA could comply with Supreme Court Judge Robert Noonan’s order for it to rule on the legality of camping, concerts and related activities at Frost Ridge Campground. Interim Supreme Court Judge Mark Grisanti subsequently ordered the town to cancel its public hearing, and for the existing ZBA to conduct a hearing on Frost Ridge by Dec. 18, 2015.

The ZBA met Grisanti’s deadline by a day, and officially ruled in favor of Frost Ridge on Feb. 17.

February 17, 2016 - 10:50pm
posted by Raymond Coniglio in Le Roy, Frost Ridge Campground, business, news.

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Frost Ridge Campground owner David Luetticke-Archbell embraces campground manager Janet Whitney — popularly known as “Miss Gabby” — after the joint Le Roy Zoning Board of Appeals issued a decision in favor of the campground Wednesday night.

The long battle is over, and won, for Frost Ridge Campground.

The Le Roy Zoning Board of Appeals on Wednesday ruled in favor of Frost Ridge, finding it a prior nonconforming use. The ZBA determined that “ambiguity” in the town zoning law, leaves room for camping and “attendant recreational activities” including live concerts.

That brings to an apparent close, a three-year legal battle over the Conlon Road facility.

Frost Ridge owner David Lueticke-Archbell was visibly relieved after ZBA Chairperson Debbi Jackett read the decision during a brief meeting in Town Court.

“Wow,” Lueticke-Archbell said. “Wow.”

“I’m so thankful that (the ZBA) took the proper time to really research it and come up with a decision that fit with what was legally right,” he said.

The Frost Ridge site has been used as a campground for decades. David and Greg Luetticke-Archbell have owned the the property since 2008, and have been hosting outdoor concerts there since 2012.

In 2013, the ZBA determined that the concerts are allowable under town zoning law. That decision prompted court challenges by neighbors and the Town of Le Roy. Last April, Supreme Court Judge Robert Noonan invalidated the ZBA’s ruling on technical grounds, and ordered a new public hearing.

That hearing was finally held on Dec. 17, 2015. After 90 minutes of testimony, Jackett said the ZBA would issue its ruling within the legally allowable 62 days — a deadline met on Wednesday.

David Luetticke-Archbell described the experience as a “roller coaster.”

“It’s been difficult,” he said. “The main thing, for me, is I felt like we haven’t been able to service our guests well during this time — not as well as we normally would.”

For Luetticke-Archbell, Wednesday marked the end of one chapter, and the start of another.

“For the legal stuff, this should be the end of the road,” he said. “And, God willing, that will offer some opportunities that we can do this in a way everybody can be happy with.”

Luetticke-Archbell said he would work with his attorney, to make sure the campground runs “by the book.”

“This is about people going on vacation and enjoying themselves,” he said. “We want to make sure everything we do is within the confines of what is allowable.”

Town Supervisor Stephen Barbeau has said the Town Board would abide by a ZBA determination that follows a formal application and public hearing. Wednesday night, he said the Town Board will not be discussing the ZBA ruling.

Neighbors who might disagree with Wednesday’s ruling, are however free to challenge it in court, he said.

About 20 people attended Wednesday’s meeting, many of them Frost Ridge supporters who applauded after Jackett spoke.

The meeting was scheduled for 7:30 p.m., and was officially adjourned at 7:38 p.m. Board members did not accept questions.

———

The ZBA ruling is an interpretation of two sections of town zoning law: Section 165-13, “Nonconforming uses, lots and structures”; and Section 165-39(B), which regards campsites. The following, is a partial transcript of the ruling as read by Chairperson Debbi Jackett:

We, the Le Roy joint Zoning Board of Appeals, conducted a hearing on Dec. 17, 2015, at 7:30 p.m. at the Le Roy Town Hall … The purpose of the hearing was in response to the application for interpretation filed by David Luetticke-Archbell as agent of applicant Frost Ridge Campground LLC, located at 8101 Conlon Rd. in the Town of Le Roy, N.Y. …

The application particularly requested an interpretation of whether zoning code of the Town of Le Roy allows for camping and attendant recreational activities including live and recorded amplified music, concerts and limited food service at the property as a prior, nonconforming use under Section 165-13 and, or likewise, as an exempt campground under Section 165-39(B)

The board notes this application is the first written request furnished by the applicant to this board.

We find that sections 165-13 and 165-39(B) of the zoning code of the Town of Le Roy, have ambiguity regarding the activities of the applicant on the property. We therefore interpret the zoning code of the Town of Le Roy does allow for camping and attendant recreational activities including live and recorded amplified music, concerts and limited food service at the property and is a prior nonconforming use under the aforementioned sections. We further direct that the complete written decision be field in the office of the the Town Clerk within five business days.

December 18, 2015 - 11:17am
posted by Raymond Coniglio in Le Roy, Frost Ridge Campground, business.

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The Le Roy Zoning Board of Appeals conducted a public hearing Thursday on Frost Ridge Campground. Pictured, is Board Member Thomas Spadaro and Chairperson Debbi Jackett. (Photos by Howard Owens.)

After months of legal wrangling, the argument over concerts at Frost Ridge Campground on Thursday returned to where it began.

With the Le Roy Zoning Board of Appeals, whose members listened to about 90 minutes of testimony and public comment on whether the concerts are an allowable, non-conforming use under town zoning law.

The board adjourned without voting. Debbi Jackett, chairperson, said the ZBA has 62 days in which to issue a decision.

About 60 people attended the hearing, which was held in Town Court. The hearing was conducted a day before a deadline set by a Supreme Court judge earlier this month.

The ZBA in 2013 ruled concerts allowable. Neighbors as well as the Town of Le Roy subsequently filed lawsuits aiming to reverse that decision.

On Thursday, the ZBA heard formal testimony from David Roach, attorney for Frost Ridge owners David and Greg Luetticke-Archbell; and from Mindy Zoghlin, an attorney representing families who are opposed to the concerts.

Roach maintained that the “campground and attendant recreational activities, including amplified music/concerts and limited food service” are all prior, non-conforming uses.

Citing case law, he said larger outdoor concerts may represent a change in degree, but do not alter the “essential character” of the facility and are still considered an allowable prior use.

Zoning law draws no distinction between concerts by small bands with lower amplification, and performances on a large stage using a professional sound system.

“What’s the difference? They both emit sound — that’s what we’re dealing with,” Roach said. “The primary difference is that one is louder than the other.

“What I suggest to you is that’s not a land-use issue, that is a noise ordinance (issue),” he added. “Anyone who has an issue with the decibel levels can seek relief through the noise ordinance, not through the land-use argument.”

Zoghlin urged the ZBA to reject the Frost Ridge application. Outdoor concerts of the type Frost Ridge has been hosting, are beyond what could be reasonably considered prior use.

“Even if music was played in the campground for skiers and campers in the past, Frost Ridge has illegally expanded that use,” she said.

“There’s a big difference between using an amplifier to play radio music, and hosting large commercial concerts on a specially constructed sound stage using professional audio equipment,” she said.

“Concerts with national acts, a professional stage and a sound system that attracts hundreds of people at a time were never held at this campground until 2010,” Zoghlin said. “Therefore they cannot be a prior non-conforming use as a matter of law.”

Reid Whiting, attorney for the Town of Le Roy, was offered the opportunity to give formal testimony but declined.

Thirteen residents also spoke, several of them in support of Frost Ridge.

Barbara Buchanan has lived on North Road near the campground since 1974.

“Frost Ridge has a history of providing music from different venues,” she said, including amplified music on the ski slopes.

“None of the music, over 40 years, has ever bothered us,” she said. “We consider the campground to be a very good neighbor — we don’t have a single complaint against them.”

Not so for Nancy Palmer, who has lived on Wilcox Road since 1997. She said summer concerts at Frost Ridge are too noisy.

“I find it very disturbing,” she said. “I can hear it through my house … I can hear the bass pounding through my walls and through my windows.”

Palmer said the concerts are loud enough to spook her horse.

“For those of us who are close, it is very loud and it is very disturbing,” she said.

Others speakers cited the positive impact Frost Ridge has on the community, such as fundraisers for the Le Roy Fire Department.

David Pullyblank, of Parmalee Road, said Frost Ridge campers support local businesses — including the farm market he owns on Lake Street Road (Route 19).

“Campers are people that want to come to our community and spend money,” he said. “I think it’s essential to have their business in our area.”

The Luetticke-Archbells have owned the Conlon Road campground since 2008, and have been hosting concerts in an outdoor amphitheatre since 2012. In 2013, the ZBA found the concerts permissible under zoning law.

Neighbors of the campsite and the Town of Le Roy both filed lawsuits challenging the ZBA’s ruling. Supreme Court Judge Robert Noonan invalidated the decision in April on technical grounds, and ordered the ZBA to conduct a new public hearing.

In November, the Town Board set a Dec. 10 public hearing on a local law to establish a new, town-only zoning board. Earlier this month Interim Supreme Court Judge Mark Grisanti ordered the town to cancel its hearing, and ordered the existing ZBA to conduct a hearing on Frost Ridge by Dec. 18.

Jackett set a number of ground rules at the beginning of Thursday’s hearing. Attorneys submitted written statements and evidence, but were given limited time to address the board directly. Residents who signed in, were allowed one minute to speak.

ZBA member Robert Scott, who ran unsuccessfully for town supervisor against incumbent Stephen Barbeau in November, recused himself from any involvement in the Frost Ridge application.

Jackett did not indicate when she expects the ZBA to issue a ruling. Comments on the matter will be accepted in writing by the Town Clerk until Dec. 27, she said.

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December 17, 2015 - 10:29pm
posted by Raymond Coniglio in Le Roy, Frost Ridge Campground, business.

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David Roach, attorney for Frost Ridge Campground, offers testimony to the Le Roy Zoning Board of Appeals during a public hearing Thursday on the issue of live concerts at the campground. (Photo by Howard Owens.)

Le Roy’s joint Zoning Board of Appeals reached no decision Thursday night on the question of live concerts at Frost Ridge Campground.

The ZBA adjourned after a 90-minute public hearing on the matter. About 60 people attended the hearing, which was held in Town Court.

Debbi Jackett, the board chairperson, said the ZBA has 62 days in which to issue a decision on whether concerts are an allowable, non-conforming use under town zoning law.

Comments will be accepted in writing by the Town Clerk until Dec. 27, Jackett said.

The ZBA heard formal testimony from David Roach, attorney for Frost Ridge; and from Mindy Zoghlin, the attorney representing families who are opposed to the concerts. Gene Sinclair, who served as the town zoning/code enforcement officer until 2012, also testified.

Reid Whiting, attorney for the Town of Le Roy, did not comment during the hearing.

Thirteen residents also spoke, several of them in support of Frost Ridge. At least two residents, however, said the concerts are disruptive.

Thursday’s hearing was conducted a day before the deadline set by a Supreme Court judge earlier this month.

A complete story will be posted Friday morning.

December 4, 2015 - 11:56am
posted by Howard B. Owens in Frost Ridge Campground, Le Roy, business.

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.

April 20, 2015 - 4:19pm
posted by Howard B. Owens in Le Roy, Frost Ridge Campground.

Whether Frost Ridge Campground can continue hosting live music concerts is a matter for the Town of Le Roy Zoning Board of Appeals to decide, Judge Robert C. Noonan ruled today.

In an order issued this afternoon, Noonan said that the ZBA has sole authority to make the decision, and insofar as a prior finding by the ZBA that concerts were a prior, non-conforming use was legally flawed, it's still up to the ZBA, not the courts, to make the determination.

The failure of the ZBA to properly issue public notice of a hearing on concerts at Frost Ridge on Sept. 25, 2013, does not affect their underlying authority to make the determination, Noonan said.

In short, Noonan recommends that Frost Ridge make a proper application, but with or without the application, the ZBA must hold a properly noticed public hearing and reach a properly recorded decision.

It's only after that process has been correctly executed that a court can weigh evidence and determine whether a plaintiff has any basis to overturn the decision, according to Noonan's ruling.

The autumn of 2013 finding by the ZBA has been a key point of contention in the pair of lawsuits filed by the Town of Le Roy and the Cleere/Collins family against Frost Ridge.

Board members reportedly reached a unanimous decision favoring live music at Frost Ridge, finding the use was grandfathered in because live music and amplified music at the recreational area pre-dated the creation of a residential-agricultural zone in that part of Le Roy.

The Cleere/Collins attorney sought to get the ZBA decision voided and foreclosed, bringing the campground's concert series "Jam at the Ridge" to an end.

Noonan wrote that case law establishes that a court must stay its hand until the proper agency has applied its expertise to the salient questions of the regulatory scheme.

That hasn't happened yet in the case of Frost Ridge.

Noonan's decision leaves the future of live music up to a ZBA board that has shown prior support for live, amplified music at Frost Ridge.

Pending a final ZBA determination, Noonan's modified order -- limiting but allowing concerts at Frost Ridge -- remains in effect, unless the Cleere and Collins families deposit $225,000 into an escrow account to protect the Frost Ridge owners against damages should they eventually succeed in the legal proceedings.

April 10, 2015 - 6:46pm
posted by Howard B. Owens in Le Roy, Frost Ridge Campground.

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.

December 6, 2014 - 1:50pm
posted by Howard B. Owens in business, Le Roy, zoning, Frost Ridge Campground.

The failure to publish a public notice prior to a September 2013 Le Roy Zoning Board of Appeals meeting on whether Frost Ridge Campground was in violation of zoning laws deprived neighbors of an opportunity to meaningfully participate in the board's decision, Judge Robert C. Noonan wrote in a ruling issued Friday.

The ruling was in response to a motion by the defendants, Greg and David Luetticke-Archbell, to have a lawsuit thrown out that challenges their ability to host live music concerts at the campground.

"The ZEO (Zoning Enforcement Officer)/ZBA's lack of compliance with the notice requirements was so grievous that no statute of limitations bars this action," Noonan wrote in the decision.

Noonan's ruling means that the lawsuits against Frost Ridge will proceed to trial.

The Luetticke-Archbells are fighting two lawsuits over live music at their natural amphitheater, and allegations that the campground was expanded in violation of zoning codes.

One lawsuit was filed by David and Marney Cleere and Scott and Betsy Collins, the other by the Town of Le Roy.

To date, the case has been a series of motions and hearings, but it appears that Noonan's ruling on this motion clears the way for trial.

October 26, 2014 - 3:22pm
posted by Howard B. Owens in music, entertainment, Le Roy, Frost Ridge Campground.

Frost Ridge Campground closed out its abbreviated 2014 concert schedule Saturday night with headliner Jason Michael Carroll (pictured above).

Carroll was originally booked for a date earlier in the summer, but it was cancelled following a court order triggered by a pair of lawsuits filed against Frost Ridge. Judge Robert C. Noonan eventually modified his order after the legal process started to drag on.

Joshua Scott Jones, formerly of Steel Magnolia (below), opened the show.

Photos by Peggy Barringer.

August 16, 2014 - 1:53pm
posted by Howard B. Owens in Le Roy, Frost Ridge Campground, Le Roy Fire Department.

Today, Frost Ridge hosts its annual fundraiser for the Le Roy Fire Department. 

The event goes until 4:30 p.m.

Just now, they're setting up dual water slides.

The ladder truck rides, however, are over.

There's a basket raffle and food.

June 13, 2014 - 12:01am
posted by Howard B. Owens in business, Le Roy, Frost Ridge Campground.

The Town of Le Roy Board had no choice but to pursue a lawsuit against one of its own local businesses, attorney Reid Whiting said Thursday night during a discussion with town residents of the Frost Ridge legal proceedings.

About 25 Frost Ridge supporters turned out to the board meeting and spoke up during a conversation that lasted at least 90 minutes.

There were no speakers supporting the board's lawsuit.

Frost Ridge is being sued by both the town and two neighboring residents over its very existence as a campground and its ability to hold outdoor music concerts.

The neighbors, David and Marny Cleere and Scott and Betsy Collins, have been pushing the town to enforce its zoning ordinance in regards to Frost Ridge, Whiting said. The two couples made it clear, Whiting said, the town would be sued if it failed to enforce its ordinances.

Such a failure, Whiting said, would embolden others to violate the zoning code and give the town little recourse for enforcement.

"If we ignored the violations, we would be found in dereliction of our duty and we would not be able to defend ourselves in other matters," Whiting said.

Later in the meeting, he said, "We did not act lightly. We did not act recklessly. We did not act without thought. We have a statutory duty to enforce the laws of Le Roy. If we do not, we are at risk. If we're at risk, you're all at risk."

The town board decided to sue Frost Ridge rather than defend its own Zoning Board of Appeals, which determined in 1978 and again 2013 that Frost Ridge was an existing, nonconforming use and permissible under the town's law.

Supervisor Steve Barbeau (second photo) said the ZBA overstepped its authority by making those determinations.

"The issue of whether something is grandfathered in or not grandfathered in is not their decision," Barbeau said. "If in the 1960s a record of music was played over the PA system so now that translates into Molly Hatchett coming in for a concert, if you believe that's the case, that's not something within the purview of the ZBA to rule on."

Both Whiting and Barbeau made the point that the town board was not criticizing the ZBA or arguing with the ZBA. The town did not sue the ZBA. Cleere/Collins sued the ZBA.

Whiting leaned heavily in more than one statement that the town's position obviously had merit because Judge Robert C. Noonan issued a temporary injunction against amplified music and alcohol sales at Frost Ridge.

"Judge Noonan takes precedent over anything the town board does," Whiting said.

When Eilleen Sherman Dries (top photo) said a code enforcement officer, who trained the town's current officer, told her Frost Ridge was a pre-existing nonconforming use, Whiting snapped, "The only thing that matters is what Noonan says."

At the hearing prior to Noonan's ruling, the ZBA was not represented. Whiting told Noonan during the hearing that the ZBA had been served notice that it was a defendant in the Cleere/Collins suit but chose not to be represented. That turned out not to be an accurate statement. Chairwoman Debbie Jackett has since said the board stands behind its determination that Frost Ridge is not violating existing town code.

The ZBA will be represented by its own attorney, paid for by the town, at further court proceedings.

Late in the meeting, Whiting said the town is just a secondary player in the legal proceedings, even though Noonan denied the Cleere/Collins side its own request for an injunction, granting just the town's request for an injunction.

If the other sides in the case were able to come to an agreement, Whiting said, he would not interfere with the agreement, but bring it back to the town board for consideration.

Coming to an agreement was the major request of just about every resident who spoke during the meeting.

"This is revenue we had and now it's going to Caledonia instead of Genesee County," said Lucie Ann Griffis (Disclosure, Griffis is a part-time sales rep for The Batavian). "This is revenue that not only the town needs, but the whole area needs. It's a shame the town board couldn't jump aboard on this and instead of saying what we can't do, saying what we can do.

"It's a shame what's being said about use, about the town not being friendly to business. I'm a lifer here. This is a travesty that we're losing this revenue based on the complaints of just a couple of people."

Carl (who refused to provide his last name) also complained about lost business.

"The town board should be out trying to promote the town and promote business and not take away a business because of some violation of code, because one or two complaints, and shut something down," Carl said. "The board should try and do some something to help them."

A couple sitting behind Carl said they were from Rochester and camp regularly at Frost Ridge, and have camped there since before the current ownership. They both said Le Roy has started to gain a bad reputation in Rochester because of situations like this.

Jennifer Keys also spoke in favor of finding some compromise that could save Frost Ridge.

"We cannot deny that Frost Ridge is a great source of revenue for our community," Keys said. "I would like to see it worked out so that the revenue stays here rather than going to Caledonia or Batavia."

Barbeau said the town has already tried to reach a compromise with Frost Ridge owners Greg and David Luetticke-Archbell, but at the 11th hour, the owners hired an attorney who withdrew their application for a special use permit for the campground.

"Once they conformed to that, then they could seek out a variance for concerts," Barbeau said. "There was no guarantee at all. It would have gone through the ZBA, then the planning board and then a public hearing and then the town board."

Keys responded, "I don't want to speak for the owners, but since they're not here, it's my understanding that county planning told them you can't do that, that their application (for a special use permit) wasn't valid because they didn't need it. They felt threatened and things blew up and here we are now. I would still hope something could be worked out."

Greg and David are out of town and not available for clarification, but The Batavian has previously spoke to sources who said Greg and David were advised by their attorney at the time that the special use permit was a trap. The issuance of a permit would negate prior rulings by the ZBA and end concerts at the Ridge.

Barbeau said he did try to find a compromise for Frost Ridge last summer and that he convinced Cleere/Collins to hold off on a suit during the 2013 concert season because shutting things down with contracts signed and deposits paid would have been economically devastating for Greg and David.

"I do bristle and I will continue to bristle when people say we didn't try as a town board to do anything to work things out," Barbeau said.

Barbeau said if Frost Ridge had continued with its application, he was confident it would have been approved by the board unanimously and then he was going to propose a town-wide zoning change that would have permitted concerts on any property three times a year -- Memorial Day, the Oatka Festival and July 4.

Frost Ridge hosts concerts at least nine times a year.

"They were gambling (when they withdrew their application) and they gambled wrong," Whiting said.

A man named Steve (who also refused to give his last name), made one last plea for resolution favorable to the town near the end of the discussion.

"This is a no-win situation," Steve said. "If you win the lawsuit, you lose all that revenue from all those people who come to Frost Ridge. "If you lose the lawsuit, you're going to owe the campground all that money, all the while costing me and the other residents a lot of money. You need to get in a room with everybody and work it out."

One audience member kept asking how the supporters could go about getting an item on the agenda at a future board meeting about the board reconsidering its position, and the answer was, there's a public comments section on every agenda.

"I want to know when we can ask you to represent the majority of the people in Le Roy instead of just two people," she said.

May 31, 2014 - 8:12am
posted by Howard B. Owens in business, music, entertainment, Le Roy, Frost Ridge Campground.

Press release:

Jam At The Ridge Presents: Josh Thompson In Concert - Performance Location Change

As you may know, a preliminary injunction has been issued against amplified outdoor concerts at Frost Ridge at this time. To fully comply with the court order and meet our commitment to our guests, the Josh Thompson Concert scheduled for June 7th, 2014 at 5 p.m. (gates open at 4 p.m.) is being moved to:

    J W Jones Hall

    366 Leicester Road
    Caledonia, NY 14423

    Maps:  Google   Bing

The firefighters of Caledonia have been very gracious to provide this space and we thank them from the bottom of our hearts. This location is only 14 minutes from camp and is easy to find. If you have any trouble, please come to camp and get a map.

Ticket-holders, please go directly to the venue at the address above.

Campers, please register at the campground and take the FREE shuttle to the venue.

Thank you to everyone who has helped us keep the music alive at The Ridge.

ADDITIONALLY: The attorneys involved in the two lawsuits over Frost Ridge met in conference Friday in the chambers of Judge Robert C. Noonan. The meeting was primarily to go over the calendar of motions and appearances in the case, but attorney Karl Essler was introduced as legal counsel for the Zoning Board of Appeals. Somehow, the ZBA, which has consistently found that Frost Ridge is a legal nonconforming use within the Town of Le Roy's zoning laws, was not notified it was a party to one of the lawsuits. The ZBA was not represented at a hearing that proceeded Noonan's ruling on the current injunction against amplified music and alcohol service at Frost Ridge. David Roach, attorney for Frost Ridge, said Essler will be permitted to file a written argument in the case without opposition from the plantiff's counsel. It's unclear how the additional information might or might not lead to a modification of Noonan's ruling. No date was announced for the next court proceeding.

May 29, 2014 - 1:54pm
posted by Howard B. Owens in business, Le Roy, Frost Ridge Campground.

Le Roy's Zoning Board of Appeals will likely try to retain its own attorney in the Frost Ridge case, board Chairwoman Debbie Jackett said today.

At a hearing May 20, Town of Le Roy Attorney Reid Whiting told Judge Robert C. Noonan that the ZBA didn't have an attorney in court that day because the board chose not to be represented.

He said the ZBA had been served with notice of the lawsuit.

Jackett said the board didn't know it was named in a lawsuit until members read about the court hearing in The Batavian.

The ZBA was named by plaintiffs David and Marny Cleere and Scott and Betsy Collins because the ZBA found in July 2013 that camping and amplified music were permitted uses at Frost Ridge.

The board's position is and was, Jackett said, that camping and amplified music were both permitted uses prior to the area being zoned residential/agriculture in 1967.

The vote was unanimous, Jackett said, and the board's position hasn't changed.

The town board cannot overrule the ZBA's decision.

"Their view is contrary to our view," Jackett said.

Which is why Whiting can't represent the ZBA, she said. 

The ZBA serves both the town and village governments, but the board doesn't feel the village attorney should represent the ZBA since Frost Ridge is a town issue, so the ZBA is scrambling to secure independent legal representation.

The Town of Le Roy will be obligated to pay for the ZBA's attorney.

Frost Ridge and owners David and Greg Luetticke-Archbell are defendants in two lawsuits, one filed by the town and another field by Cleere and Collins challenging their legal ability to both exist as a campground and to operate occasionally as a live music venue.

The plaintiffs maintain that the campground and amplified music violate the current zoning ordinance. Frost Ridge maintains that the property was recreational use prior to 1967 and it's recreational use today.

Noonan issued a temporary injunction May 23 barring Frost Ridge from amplified music and alcohol service on the property, citing the likelihood that the town would prevail on the merits of the case. His decision was based on the May 20 hearing that lacked ZBA representation. 

Since the ZBA doesn't have an attorney yet, it's unclear whether any motion could be brought forward challenging the injunction.

A conference meeting -- where dates will be set for future proceedings in the cases -- is scheduled for tomorrow. Jackelt said she is unsure if the ZBA will be able to retain counsel in time for that court appearance.

May 27, 2014 - 2:03pm
posted by Howard B. Owens in business, Le Roy, Frost Ridge Campground.

Press release:

The Town of Le Roy, NY (Town) has filed suit against Frost Ridge Campground LLC (Frost Ridge) alleging they are in violation of local zoning code. After initial arguments, Judge Robert C. Noonan has ordered Frost Ridge to temporarily suspend “amplified outdoor concerts and alcohol service” until the merits of the lawsuits can be fully addressed.

Of course, Frost Ridge has complied and will continue to comply with Judge Noonan’s Order. In the meantime, Frost Ridge remains open to all its camping guests, and will continue to seek alternative options and potential venues for its live music.

Again, we thank our guests for being patient, as we have had to be patient. 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.

May 24, 2014 - 7:36am
posted by Howard B. Owens in business, Le Roy, Frost Ridge Campground.

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.

Previously: 

May 20, 2014 - 10:29pm
posted by Howard B. Owens in business, Le Roy, Frost Ridge Campground.

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.

May 20, 2014 - 12:36am
posted by Howard B. Owens in business, Le Roy, Frost Ridge Campground.

Greg Luetticke and David Luetticke, 
owners of Frost Ridge Campground
(file photo)

The Town of Le Roy has filed a lawsuit that, if successful, would put Frost Ridge Campground out of business.

Frost Ridge, according to the suit, is a cancer on the community.

The chief complaint in the suit is the summer concert series in the facility's natural amphitheater, but the complaint also says the campground violates the town's zoning law, and it has since 1967.

The defendant's uses and occupancy of the property, the suit states, "corrupt the general area so as to destroy the peaceful and quiet enjoyment of residents of the Town in the vicinity, having endangered, impaired and imperiled and threaten to endanger, impair, imperil the health of the public."

The campground, that paragraph continues, "(has) caused and will cause irreparable injury to the health, safety and welfare of the residents of the town."

No evidence of such harm is stated in the complaint, which was filed May 2.

While the suit purports to represent all the residents of the town, the town's own Frost Ridge file -- a copy was obtained by The Batavian through a FOIL request -- lists only one neighboring couple as ever filing any written complaints about Frost Ridge.

"By reason of the foregoing, Plaintiff and residents and taxpayers of the Town will continue to suffer great and irreparable harm, damage and injury from the further continuance of the public nuisance, which cannot be caused to cease except by the injunctive order and in a court of equity," the suit states.

Frostridge, operating under various names over its long history, was opened as a winter ski resort in 1957 and has included campground sites since at least 1961, according to the town's documents.

It's currently owned by David Luetticke and Greg Luetticke, who purchased the business in 2008 and moved from San Diego to Le Roy to operate it.

In 2012, David and Greg started a summer concert series, but records show they weren't the first owners to host live music at the campground.

Last summer, David and Marney Cleere started complaining about the concerts and since then the Town has built a long paper trail of town board meetings, zoning board meetings, attorneys' letters, accusations and counter claims as the town has sought to block David and Greg from bringing some of the nation's biggest country stars to Le Roy.

A hearing on the suit is scheduled for 9 a.m. in the Genesee County Supreme Court in front of Judge Robert C. Noonan.

The lawsuit takes direct aim at the concerts and an alleged plan by David and Greg to open a bar and grill called The Barn on the property.

It also accuses the previous owners of operating and expanding the property as a campground illegally.

"In June 1998, the Zoning Board of Appeals (ZBA) held a public hearing concerning the upcoming sale of the premises by Frost Ridge, Inc., to Molly Perry," the suit reads. "The ZBA determined, erroneously in the view of the current Town Board, that the use of the premises as a campground was a preexisting nonconforming use and thus could continue to be used as a campground after her purchase of the premises."

The property sits within a residential/agriculture zone that was established in 1967. The R/A zone in the Town of Le Roy typically allows only for single-family homes or various types of agriculture use, according to the suit.

The campground has undergone several expansions that violated even a nonconforming use allowance, if such a use were even permitted, which it doesn't, the suit states.

And now what David and Greg have done, and want to do, with their country music concerts and proposed restaurant and continued family camping fun is a cancer that must be eradicated, the suit alleges.

"The size and scope of the planned uses are unsuitable and inappropriate for the area, constituting a maligancy which cannot be allowed to metastasize any further," the suit reads.

The suit was written and filed by Le Roy attorney Reid A. Whiting.

In recent years, Frostridge has booked such name acts as Marty Stuart, the Little River Band, Restless Heart, the Nitty Gritty Dirt Band, Connie Smith -- a 2012 inductee of Nashville's Country Music Hall of Fame, Jerrod Neimann, Jo Dee Messina and Phil Vassar as well as rising stars like Blackjack Billy.

Last year's line-up included a homecoming show for Alexander native Krista Marie and her band The Farm.

The ampitheter can accommodate up to 5,000 people, making it a much smaller venue than Genesee County's only other notable concert venue, Darien Lake. But even so, while Darien Lake's concerts require a substantial law enforcment presense and dozens, if not more than 100 arrests, might be reported following a show, there hasn't been a single arrest reported at Frost Ridge related to a concert since 2011.

There is no immediate information available on the local economic impact of Frostridge, and David and Greg said they could not talk with the press on advice of their attorney. But from previous conversations with The Batavian over the past view years, we know they book thousands of guests every season as well as attract tens of thousands of tourists to Genesee County for their concerts.

Each season, they employ nearly 40 people for concerts and camping.

The town's file on Frost Ridge also contains an apparent notice from earlier this year of violations and an order to cease certain activities, listed by code number. It's signed by the town's code enforcment officer, Jeff Steinbrenner.

David Roach, attorney for Frost Ridge, responded March 17 and stated the notice was dubious in meaning, sweeping in scope, constituted discrimintory enforcment because only Frost Ridge is targeted and runs counter to findings in 1989 and 2013 by the town Zoning Board of Appeals that the campground was operating legally as a preexisting, nonconforming use.

Roach accuses the town of merely perpetuating a political agenda driven by the Cleeres.

"We are aware that one married couple, David and Marny Cleere, just last year expressed their displeasure for the first time with the ongoing 50-plus year tradition of live music at Frost Ridge," Roach wrote. 

He continues, "they in fact demand the town 'abate the violations of the Town Code,' in what seems like a frontal assault on Frost Ridge's very existance. If not entirely arbitrary and capricious, the town's intended action against Frost Ridge may be construed as furthering the Cleere's personal agenda, which has absolutely no legitimate bearing on Frost Ridge's compliance with the Zoning Code."

The suit also alledges that the campground's current use and configuration constitutes a serious fire hazard to the surrounding area, campground guests and the campground's owners.

The town's file on Frost Ridge contains a Jan. 9 letter from the Le Roy Fire Department finding five minor possible fire safety violations, including problems with signage, no site map and no letter in the department's file on how many permanent residents there are at the campground.

The campground sits on two parcels of a combined 31 acres with an assessed value approaching $130,000.

Marty Stuart performing at Frost Ridge, Sept. 2011.

Alexander native Krista Marie peforming at Frost Ridge, August 2013.

Blackjack Billy performing at Frost Ridge, June 2013.

Phil Vassar performing at Frost Ridge, July 28. During his performance, Vassar praised Frost Ridge. He praised the setting. He praised the hospitality. He praised the acoustics of the venue. "This is a special place," Vassar told the crowd after his fourth song. "We play a lot of places around the country and there's no place else like this."

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