Hearing on motions in Frost Ridge case will determine fate of lawsuits, and campground

Two witnesses in a hearing related to the Frost Ridge lawsuits testified today that a key document was filed with the Town of Le Roy months before an April 8 statute of limitations date that is part of the dispute over live music at the campground.

It's all more complicated than even that convoluted sentence, however.

The hearing wasn't even completed today. Judge Robert C. Noonan was scheduled to hear a case in Rochester at 2 p.m. and with at least one more witness scheduled to be called, continued the hearing to 10:15 a.m., Tuesday.

Before adjourning, Noonan continued the stay of his temporary restraining order barring live music at Frost Ridge, which means that the Phil Vassar concert scheduled for Saturday will go on as planned.

The concert is a fundraiser for the Golisano Children's Hospital.

Vassar has said Frost Ridge is one of his favorite places to play and asked to be included in this season's line-up.

The hearing was limited to two motions under consideration by Noonan: 

• Whether the statute of limitations for challenging a ZBA determination that nonconforming uses at Frost Ridge, contrary to current zoning law, were "grandfathered in," and,
• Whether there is what is known as a "jurisdictional defect" in the ZBA's determination.

The key document relevant to the statute of limitations motions is the Zoning Board of Appeals minutes from its Sept. 25, 2013 meeting.

At dispute is whether the minutes were filed with the town before April 8. 

If the minutes were filed before April 8, that would mean one of both lawsuits were filed after the statutory period for challenging a zoning board's determinations.

But, did the ZBA under the circumstances of Sept. 25 have the authority to make that determination, which is something the attorney for the Cleere/Collins side of the suit is challenging.

Noonan's eventual ruling on these motions could either allow one or both lawsuits against Frost Ridge to go forward, and perhaps to trial, or determine whether one or both will be dismissed. 

Frost Ridge and the campground's owners Greg and David Luetticke-Archbell are being sued by the Town of Le Roy and Frost Ridge neighbors, the families of Cleere and Collins (who are related to the original Frost Ridge owners). Cleere/Collins is also suing the ZBA.

First to testify was Town Clerk Patricia Canfield.

There is much about when the minutes were first publicly available that Canfield can't remember.

She testified that as standard and permissible procedure, the ZBA minutes are kept in a file in the office of Jeff Steinbrenner, zoning and code enforcement officer for the Town of Le Roy.

She couldn't recall with certainty when she first had reason to retrieve the Sept. 25 minutes from the file, but said they were requested more than once through various Freedom of Information Requests, including requests by Marny Cleere.

Canfield said Cleere filed more than five FOIL requests, but not more than 10, and she couldn't remember if the one requesting ZBA minutes came in 2013 or 2014.

She couldn't remember if any of the other FOIL requests for the minutes came in 2013.

Under questioning from Noonan, Canfield said most FOIL requests are written, though she accepts verbal requests. Written requests are kept on file, she said, but there was no indication that any written FOIL requests were in court today.

As for the ZBA hearing itself, Canfield testified that if there was a public notice published of a meeting to discuss Frost Ridge's non-conforming use, she would have known about it, and she said she was unaware of any such publication.

David Roach, the Frost Ridge attorney, also called Steinbrenner as an "adverse witness."

Steinbrenner was also questioned by attorney Karl Essler, representing the ZBA.

Under questioning from Essler, Steinbrenner said that once the minutes from a meeting were approved at a subsequent meeting, he would place those minutes in his file.

He agreed that the Sept. 25 minutes were approved by the ZBA board at its Oct. 22 meeting and that he probably filed the minutes that night or the next morning.

As for the meaning of the minutes, Steinbrenner danced around the issue, often skirting direct questions.

He said he didn't recall live music being discussed as a prior nonconforming use at the Sept. 25 meeting.

Roach and Steinbrenner wrangled over the course of several questions whether an e-mail Steinbrenner sent to Frost Ridge in August 2013 was meant to put them on notice that a long list of alleged zoning violations included live music.

Mindy Zoghlin, attorney for Cleere Collins, when cross-examining Steinbrenner, read off a list of alleged zoning violations related to roadways and the placement and setbacks of campsites. 

While never explicitly stated, the clear implication of the line of questioning is an attempt by the plaintiff's side to establish that the ZBA ruling, if valid, was limited to land use issues and the ZBA didn't at all consider, nor was it asked to consider, whether live music is grandfathered in.

"When we first started with Frost Ridge about this, we saw two aspects to it," Steinbrenner said. "There was a need for special use permit for the campsites and one for concerts. At the time, we decided to go after the campground sites at Frost Ridge and the go after the concerts once they were up to compliance and in code."

Steinbrenner's August e-mail twice uses the word "etc." when referring to the alleged zoning violations.

When Roach would ask in various ways whether "etc." includes live music, Steinbrenner repeatedly deflected the question by staying he was merely forwarding what Town Supervisor Steve Barbeau had said was discussed at a prior town board meeting (which Steinbrenner didn't attend).

Under questioning from Roach, Steinbrenner admitted that he had verbally told David and Greg that live music shows were a possible zoning violation.

The third and final person to testify today was Debra Jackett, chairwoman of the ZBA.

Jackett testified that the board approved its minutes from the Sept. 25 meeting at its Oct. 22 meeting and that Steinbrenner received a copy of the minutes at that time, and she considered them filed with the town at that time.

Zoghlin asked several questions related to public notification of hearings and filing of notices and Jackett answered each time that it wasn't the board's job to deal with notices and outside communications.

"Our only job is to show up at meetings and make decisions," she said.

Over the repeated objections of Roach (each overruled by Noonan), Zoghlin kept asking about what happened at a ZBA meeting in 1998. 

Jackett was a member of the board in 1998, when the ZBA issued a determination that Frost Ridge was grandfathered in as a campground, even though it was an agriculture/residential area.

The meeting was 16 years ago, Jackett said, and she couldn't remember specifics about the meeting, but Zoghlin persisted.

"If you're going to ask me what I said 16 years ago, I'm going to tell you, I don't recall," Jackett said at one point.

Roach objected to the line of questioning because it's his contention that what happened at the meeting in 1998 isn't material to the plaintiff's motion that the ZBA decision of 2013 suffers from a "jurisdictional defect."

Another ZBA board member is expected to testify Tuesday. Noonan's ruling on the motions will come some time later.