Jam at the Ridge Campground

After the alleged name calling, a key issue in the latest legal filing from the attorney representing the Cleere and Collins families against Frost Ridge is the alleged violation of the state's open meeting law by Le Roy's Zoning Board of Appeals.

The plaintiffs allege:

• Neighbors within 250 feet of the Frost Ridge property were not mailed notice of the Dec. 17 public hearing held by the ZBA on the interpretation of the zoning law and prior, non-conforming use at Frost Ridge;
• That the ZBA did not deliberate its decision in public;
• That no noticed public meetings were held between Dec. 17 and Feb. 17; 
• That a decision was reached without the public present sometime between Dec. 17 and Feb. 17.

These complaints are mirrored by the filing for the Feb. 17 meeting where the ZBA announced its decision; the meeting wasn't even four minutes long.

James Wujcik represents the ZBA in these proceedings and he filed a memorandum of law in opposition to the plaintiffs' complaint.

He also submitted an affidavit by Debbi Jackett, chairwoman at the time of the ZBA, which has since been disbanded by the Town of Le Roy.

She states the hearing of Dec. 17, at the order of Judge Mark Grisanti, was held after a legal notice was published. She does not address the complaint, nor does Wujcik in his memorandum, whether notice was sent to neighbors by postal mail.  

A source familiar with the case told The Batavian today that notice was mailed.

Jackett argues that proper notice was clearly given because all of the interested parties were at the hearing.

"It is common sense that one's attendance at the public hearing acknowledges notice of that very hearing," Jackett wrote. "Any insinuation that plaintiffs could not be in attendance is another attempt to delay the ZBA from acting pursuant to the order of Judge Grisanti."

Jackett also accused the Town of Le Roy of trying to obstruct the ZBA from holding the hearing. She said the code enforcement officer was informed in October that the ZBA would no longer be able to conduct meetings at the Town Hall.

As for the hearing itself, Jackett said the ZBA board took a short break and then resumed its meeting in the regular board meeting room "regarding the merits of the case."

This was apparently considered a continuation of the prior noticed meeting, though it's not clear if any members of the public were invited into that meeting.

Mindy Zoghlin, attorney for the plaintiffs, clearly did not know about this meeting continuance based on the statements in her filing.

The Batavian's reporter at the meeting that night was Ray Coniglio and he said today that he wasn't informed that the meeting would be continuing in another room. He left the Town Hall and wrote a story published the next day that said the meeting concluded without any discussion by the ZBA and that no vote was taken that night. Nobody from the ZBA ever contacted The Batavian following this news report to inform us that this information was incorrect and ask for a correction.

Jackett further argues that the Town's ongoing obstruction of the ZBA, such as not filling vacant positions, contributed to any confusion about compliance with the open meeting law.

"Even if a skeptic held merit with any claim against the ZBA for violations of the Open Meetings Law, the behavior can be traced directly to the Town's illegal, obstructionist behavior with the ZBA," Jackett wrote. 

In his memo, Wujcik argues that it is certainly within the ZBA's right to continue its meeting upon closing the public hearing, but he doesn't address the fact that the meeting was moved to another room without notification of the public in attendance.

"The ZBA correctly deliberated during its Dec. 17 meeting," Wujcik states, adding, "It should be duly noted the ZBA rendered its decision at an open public meeting on Feb. 17."

He also accused the Town of deliberating trying to disrupt ZBA proceedings and called on the court to find the Town of Le Roy in contempt of court, pursuit to the order of Grisanti.

It's unclear what will happen if Acting Superior Court Judge Emilio Colaiacovo rules in favor of the plaintiffs on the open meetings law issue. The ZBA that has been at the center of this issue for the past several years not longer exists. It was a ZBA comprised of representatives from the town and the village, and now the town and the village each have their own ZBA.

One last note about the open meeting law: The law also requires public bodies to notify all local media of its public meetings, and with the exception of the City, County and GCEDC, this practice is largely ignored by every other local public agency and government.

The fight over live music and other alleged zoning code violations at Frost Ridge Campground is far from over and court documents indicate the fight has recently involved some name calling and an accusation of anti-gay bias driving the attempts to shut down the park.

Attorneys for David and Marney Cleere and Scott and Betsy Collins, neighbors of Frost Ridge, have filed motions seeking a permanent ban on live, amplified music and long-term camping at the facility.

Their court papers alleged that a ZBA hearing in February that led to a finding in favor of David and Greg Luetticke-Archbell, owners of Frost Ridge, violated the state's opening meeting law and therefore the ZBA's decision should be voided.

The Luetticke-Archbell's position is that the meeting was given proper public notice, a position backed by sworn statements from the ZBA's then-chairwoman Debbie Jackett and answer filed by the ZBA's attorney, James M. Wujcik.

Any appearance of inconsistencies in the ZBA's actions, before being disbanded by the town board, is purely the result of the anti-gay bias, David Luetticke-Archbell claims in a sworn statement, of Town Supervisor Steve Barbeau.

It's a charge that Barbeau vehemently denies in his own sworn affidavit, but Luetticke-Archbell accuses Barbeau of calling his husband a "faggot" after a "contentious" Nov. 12 meeting. To support his charge of an anti-gay agenda, Luetticke-Archbell also points to several actions by Barbeau throughout the legal and civic process over the past couple of years, including a statement in a court filing approved by Barbeau that Frost Ridge is a "malignancy which cannot be allowed to metastasize."

"Mr. Barbeau, with the Town Board in tow, has unabashedly trampled on the due process rights my husband Greg and I would have been afforded but for our sexual orientation," Luetticke-Archbell wrote in his statement.

Barbeau said that Luetticke-Archbell didn't tell the whole story of the events of Nov. 12.  First, he denies using the word "faggot," but he also accused Greg of calling him a couple of choice names while following him into his office after the meeting, including a "piece of shit."

In his statement, Barbeau states he holds no bias against the owners of Frost Ridge.

"The Luetticke-Archbells have a place in the Town of Le Roy, one they have earned through their commercial and charitable efforts," Barbeau states. "The Town of Le Roy is merely trying to enforce its zoning ordinance so as to not render it irrelevant."

Barbeau said that the actions he and the town board have taken have been supported by a majority of town residents. The evidence is in the election results, he said, given that he and other incumbents handily won reelection despite opposition focused on the Frost Ridge issue.

David Luetticke-Archbell is equally convinced that Barbeau is driven by an anti-gay agenda.

Besides the slurs, Luetticke-Archbell says Barbeau's pattern of actions is further evidence of his anti-gay position.

He accused Barbeau, rather than code enforcement officer Jeff Steinbrenner, of drafting an e-mail denying Frost Ridge prior, non-conforming use status; of purposefully mucking up the application process on a couple of occasions; of usurping the independence of the Zoning Board of Appeals by filing court documents on its behalf without properly notifying the ZBA of the proceedings; of then wrongly admitting to adverse allegations of improper conduct by the ZBA; and, of illegally firing the previous ZBA attorney and then appointing an attorney who works in the same law office as the town attorney's son.

"Mr. Barbeau's motivations and actions here have always been and remain malicious," Luetticke-Archbell wrote in his statement. "His allegations, if considered at all, should be weighed accordingly."

Barbeau called Luetticke-Archbell's affidavit an ad hominem attack and asked that it be stricken from the record.

The attorney Barbeau appointed is James Wujcik, who continues to represent the ZBA and filed documents in the current court battle defending the ZBA against allegations leveled by the attorneys for the Cleeres and Collins.

As for the motion for injunction filed by Mindy L. Zoghlin, attorneys for Cleere and Collins, it's long (32 pages) and legal, and the responses from David Roach, attorney for Frost Ridge, are also detailed.

Whereas in the first round of lawsuits, it was Cleere and Collins along with the Town of Le Roy against Frost Ridge, Luetticke-Archbell and the ZBA, the new motion names the Town of Le Roy as a defendant.

The Town of Le Roy is accused of not upholding its own zoning laws.

It accuses Frost Ridge of violating town ordinances by allowing permanent RV camping, of violating the noise ordinance, of relying on a defective ZBA interpretation of the law, and of violating Judge Robert C. Noonan's preliminary injunction against amplified live music that he issued in September 2014 by allowing live amplified music before 4 p.m.

It accused the ZBA of violating the open meeting law after the case was remanded back to the ZBA for a determination on whether live, amplified music is a prior, non-conforming use. The suit accuses of the ZBA of not providing proper public notice and of not deliberating its decision in public. 

In his response, Roach denies all the substantial allegations.

Acting Superior Court Judge Emilio Colaiacovo is expected to make a ruling on the current set of motions at a later date.

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.

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.

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.

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.

The joint Le Roy Zoning Board of Appeals will meet on Dec. 17 to conduct a public hearing on live music concerts at Frostridge Campground.

The hearing would take place a day before the deadline set last week by Interim Supreme Court Judge Mark Grisanti.

According to the public notice, Frostridge seeks an interpretation of two sections of town Zoning Code — sections 165-13 and 165-39(B) — “as they pertain to the property, particularly whether camping and attendant recreational activities, including live and recorded amplified music/concerts and limited food service are a prior non-conforming use.”

Section 165-13 establishes the legality of the prior, nonconforming use of buildings and lots. Section 165-39(B) relates to campsites: “All existing campsites of record shall be exempt from (Zoning Code), except that they shall comply with this section whenever they are sold or any addition, expansion or alteration of the use or operation is proposed.”

David and Greg Luetticke-Archbell purchased Frostridge Campground in 2008 and began having outdoor concerts in 2012. The town ZBA determined in 2013 that the concerts were a prior, nonconforming use, and thus legal under town zoning law.

Neighbors of the campsite and the Town of Le Roy both filed lawsuits alleging violations of zoning law.

This past April, Supreme Court Justice Robert C. Noonan invalidated the ZBA’s 2013 decision because the board failed to issue a proper public notice. He ordered the ZBA to schedule a new public hearing.

That hearing never took place. In November, the Town Board voted to withdraw from the intermunicipal agreement with the Village of Le Roy that established a joint ZBA and set a Dec. 10 public hearing on a law to establish a new, town-only zoning board.

The matter returned to Supreme Court where, last week, Grisanti ordered the town to cancel its Dec. 10 public hearing. He also ordered the existing ZBA to conduct a hearing on Frostridge by Dec. 18.

The ZBA hearing is scheduled for 7:30 p.m. Dec. 17 at Le Roy Town Hall, 48 Main St.

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.

A proposed local law adds a new wrinkle to the controversy surrounding outdoor concerts at Frost Ridge Campground.

The Le Roy Town Board last Thursday, voted unanimously to withdraw from a 2004 intermunicipal agreement that established a joint town/village Zoning Board of Appeals.

Instead, Local Law No. 3 would establish a new, three-member town Zoning Board of Appeals effective Jan. 1, 2016. The Town Board would appoint two people to a new ZBA.

A public hearing on the proposed law is scheduled for Dec. 10.

“We feel as a board … that it would be in the best interest of the town going forward, to have a new, objective, impartial ZBA,” Town Supervisor Steve Barbeau said this week.

The current ZBA determined in September 2013 that concerts were a prior, non-conforming use — or “grandfathered” — at the Conlon Road campground because they predated the creation of a residential-agricultural zone in the area. That decision led to a pair of lawsuits filed by the town and the Cleere/Collins family against Frost Ridge and its owners, David and Greg Luetticke-Archbell.

Supreme Court Justice Robert C. Noonan ruled in April that failure to issue a public notice of the meeting invalidated the ZBA’s 2013 decision. Noonan’s ruling returned the matter to the ZBA for consideration.

Barbeau said the resolution approved last week was prompted by three considerations:

— The ZBA will eventually determine the legality of concerts at Frost Ridge;

— It is “likely, or at least possible” that whoever receives an unfavorable decision will file a lawsuit; and

— The Town of Le Roy will be obligated to defend the ZBA’s decision, either for or against Frost Ridge.

“Is it likely the same ZBA can be totally objective in reviewing the same issue going forward?” Barbeau asked. 

The answer, he said, is no.

“That’s something any attorney could potentially seize upon,” he said.

The Town Board took several issues into consideration, Barbeau said.

The first was that Noonan’s determination that the 2013 meeting was improperly conducted — “the issue that cost the town a lot of turmoil and a lot of money,” Barbeau said — reflects poorly on the current ZBA. The board has nevertheless been “vehement” in supporting a decision he said was made without consulting the town attorney, without carefully weighing evidence and with no public input.

The ZBA has also retained its own legal counsel at cost to the town while insisting the elected Town Board has no oversight of the matter.

“A blank check,” Barbeau said. “They’ll hire who they want and we’ll pay for it.”

Another issue relates to ZBA member Robert Scott, who was appointed by the Village Board earlier this year. His candidacy for town supervisor in this month’s town election was supported by Frost Ridge owners, Barbeau said.

Barbeau said a final matter is unrelated to Frost Ridge but has arisen since litigation began.

“There’s quite a bit of evidence that one or more members of the ZBA, either directly or indirectly, have suggested the Town Board has no authority to issue special use permits with conditions attached … and that any such issuance is subject to appeal back to the ZBA.

“That’s 100 percent, totally inaccurate,” he said.

There are currently five members of the ZBA. Two members — Debbi Jackett, who chairs the board, and Marty Brodie — were appointed by the Town Board, as was Ken Mattingly, who serves as alternate. In addition to Scott, village appointees are Thomas Spader and Charles VanBuskirk.

Members serve five-year terms. Jackett’s term expires at the end of 2017, and Mattingly’s term expires in 2018. Brodie’s term expires this Dec. 31.

If the Town Board agrees to create a new, three-member ZBA, it would thus also appoint two new members. Terms would be for three years.

As a courtesy, village Mayor Greg Rogers was informed of the Town Board’s plans before last week’s vote, Barbeau said. Dissolving the shared ZBA would not affect the town Planning Board or the code enforcement officer, whose position is funded by both municipalities.

“If we have a separate, smaller ZBA that’s only concerned with town code and not village code, and they have a three-year term instead of a five-year term, it would be more effective and efficient overall,” Barbeau said.

“Not that there won’t be litigation, but we’ll know the process was done correctly and the opinion was impartial and objective,” he said. “It makes it a lot easier to defend the ZBA, and it makes it a lot harder for a petitioner to find fault with the ZBA.”

Frost Ridge owners and supporters reacted with derision after Thursday’s vote.

David Luetticke-Archbell called the move to replace the ZBA “purely political.”

“This was referred back to the Zoning Board that is currently in place,” Luetticke-Archbell said. “To try to change (the ZBA) and then appoint people immediately prior to a decision simply to affect the outcome — that’s not what the rule of law is all about.”

Noonan’s decision that handed the issue of Frost Ridge concerts back to the ZBA was issued in April. The Luetticke-Archbells have been trying to obtain a hearing since then — without success, he said.

A series of issues — problems with paperwork or legal notices, or absences of ZBA members or attorneys — have kept postponing action on the Frost Ridge application. (See additional note, below)

“We’ve done our part to try and get this done, and each time, there’s been an obstacle put in the way,” Luetticke-Archbell said. “The Zoning Board, as far as I know, has not had anything to do with these delays.”

There’s at least one point of apparent agreement: Whatever the ZBA ultimately decides, the matter will return to Supreme Court.

“Truthfully, if (the existing) zoning board says ‘no, we’ve changed our position,’ I could probably accept that,” Luetticke-Archbell said. “But to put another board in that you’ve handpicked? I can’t really say.”

———

David Luetticke-Archbell, owner of Frost Ridge Campground, submitted the following statement to clarify and expand on why Le Roy’s Zoning Board of Appeals has not met to reconsider the issue of concerts at the campground:

The ZBA members were not absent. I was told they were, but they were all in attendance for the August meeting. The attorney who could not be present was (counsel) for the Cleeres. That attorney felt it was adequate to send an alternate to court on her behalf in February 2015, but insisted on taking a holiday on September 22nd stating that the date needed to be rescheduled.

The other pertinent information missing from this article is that (town Code Enforcement Officer) Jeff Steinbrenner failed to publish the public notice for a July date. This was the second time this happened. The first time was for the original date in September 2013 and one of the primary reasons Judge Noonan cited for remand this time. By the way, it was Jeff Steinbrenner who failed to publish the public notice for September 2013 as well. The “problems with paperwork or legal notices” is that Reid Whiting, attorney for the town, doctored up the public notice on August 27th, 2015, by changing the wording to be different from what was in the application from Frost Ridge. This led the way for appeal due to the notice being defective.

This notice was actually two notices. A correct version sent to Frost Ridge and a doctored up version sent for publication. Both of these are signed by the Town Clerk, who was out of the office for two weeks while these were being written. By the way, the town attorney, Reid Whiting, performs his duties at the direction of the Town Board Supervisor (Steve Barbeau). This is the same attorney, that Steve Barbeau claims should have been consulted by the ZBA for the initial interpretation. The same (counsel) who stated in court that the ZBA did not wish to be present, when the fact is that they were not properly notified that they were a party to a suit. They didn’t find out until they read it in the news. They could not utilize the Town Attorney because they were being sued on the same issues as Frost Ridge and that would be a conflict of interest.

Jeff Steinbrenner, the Zoning Enforcement Officer, is an employee of The Town Of LeRoy and reports directly to the Town Board Supervisor, Steve Barbeau.

If there is any question about who is delaying this interpretation, these facts all point to Steve Barbeau.

Darryl Worley, a multi-hit country music artist who topped the charts in 2003 with a 9-11 song, "Have You Forgotten?", played Frostridge Saturday night and a few hundred hearty fans braved the rain and waved flags and cheered Worley's pro-USA, positive-living message.

The show closes out the 2015 season for The Ridge.

Darryl Worley will Jam At The Ridge, Saturday, Sept. 12th, a benefit concert event in support of volunteer firefighters and to honor our hometown heroes who have, and continue to give, so much in our community. "Do You Remember?", the title of Darryl's #1 hit for seven weeks, recalls the tragedy of 9/11 and helps call all Americans to honor the lives lost and the lives on the front line protecting freedom.

Camping available, but not required, by calling 585-768-4883 or by click here: http://www.brownpapertickets.com/event/1795839
Tickets available by calling 585-768-4883 or directly at http://www.brownpapertickets.com/event/1795739

Nancy Burke (left) shows off a firefighting-themed quilt she made during a fundraising event at Frostridge Campground for the Le Roy Volunteer Fire Department. The event included the waterslide (later in the afternoon) and appearance by the department's trucks, a chance auction and food. David and Greg Luetticke-Archbell have hosted an event honoring the fire department volunteers annually for the past several years. Also holding the quilt is Michelle Dries.

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.

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.

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.

It's the little neighborhood restaurant that could and it will keep chugging thanks to David and Greg Luetticke-Archbell, who purchased the longtime bar-and-grill at 107 Evans St., Batavia, this week.

Luetticke-Archbell have owned and operated the Frost Ridge Campground in Le Roy since 2008 and they see their new establishment as an extension and complementary to what they're already doing.

Most recently, 107 Evans has been Delavan's, which owners Bill and Pati Cultrara closed almost exactly two years ago to the day that David and Greg completed their purchase of the property.

They're calling their new restaurant Delavan's The Little Ridge and promising "great food."

The restaurant is situated in a residential neighborhood and David and Greg think it's a perfect location for the warm, friendly atmosphere they hope to create.

It's going to feature American cuisine, much like they already serve at The Barn Grill at The Ridge, which they say has gotten rave reviews from customers, such as "some of the best American food around."

"We hope to knock your socks off," David said.

There will be prime rib, baked chicken, designer hamburgers, fish fries and salmon, with Greg overseeing the kitchen in the winter.

"The fish fries Greg has been doing, everybody has been loving," David said.

As for the salmon, again, David promises we'll love it.

"Everybody who has ever said, 'I don't like salmon' eats his and loves it."

Since some of the menu will be a hold over from Delavan's, David said Bill Cultrara has graciously offered to share some of his secrets.

They also plan to bring in acoustic music and assuming they continue to host live music concerts at Frost Ridge (there are still a pair of lawsuits pending that challenge their ability to do that), the national acts they bring in will be invited to The Little Ridge for pre-concert meals.

David and Greg had given no thought of opening a restaurant in Batavia, and had no idea the location was available until they went to an auction of the contents of the building Oct. 27.

Once they stewed in the idea awhile, they couldn't pass up the opportunity, David said.

"Sometimes opportunities knock and this one just clicked," David said.

The two men, along with help from their children, staff and friends, are cleaning up the restaurant, bringing in new equipment, getting everything ready to serve customers again. They plan to open Jan. 1.

"This was like a diamond that needed to dusted," Greg said. "We see the potential it has. The charm and the smallness of being manageable for one and a Cheers-like atmosphere."

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.

Country star John Michael Montgomery plays Frost Ridge tomorrow night.

Montgomery's gig is one of two originally scheduled for the summer that were moved to October as a result of a pair of lawsuits pending against Frost Ridge.

At the beginning of the concert season, Judge Robert C. Noonan barred live music shows at the venue, but as legal manuvuers played out, Noonan lifted his order pending further proceedings.

The case is still pending, the shows will go on.

Jason Michael Carroll headlines Oct. 25.

For more information visit TheRidgeNY.com.

The Marshall Tucker Band played Frost Ridge on Saturday. Photographer Peggy Barringer shared these photos.

He said it last year. Frost Ridge is a special place. Phil Vassar, a singer-songwriter with more than 10 Top 10 hits to his credit, said it again this year.

"It's very homey," Vassar said in an interview before his show Saturday night. "Everybody is so nice. You're just hanging out. We talk, even during the year, we look forward to seeing you guys come back, we talk and text each other. So it's fun. You get to hang out with your friends and play music.  There's nothing better than that. It's not like going to some venue where you just go in. It's got real character and real people. I love it."

Vassar loves it so much, he asked to come back this year.

Just a month ago, it didn't seem like Vassar's show this year would even be possible. Frost Ridge was locked down as a live music venue by a court order stemming from lawsuits filed by the Town of Le Roy and a pair of neighboring property owners.

As the lawsuits wind through the hearing process, taking longer than expected, Judge Robert C. Noonan lifted his ban on live music for a show last week and Saturday's Vassar concert.

The suits allege live music isn't allowed at the campground -- and even question the legality of the campsites themselves, while owners Greg and David Luetticke-Archbell and their lawyer contend that all of the current activities are grandfathered in, or are "prior, nonconforming uses."

Vassar takes a pretty straightforward view for the lawsuits, calling the controversy, "very silly."

"You have a lot of people who really want something and just a small number of people who don't," Vassar said. "I don't know about government, but it seems like to me it's by the people, for the people, all right. It's pretty simple. It seems like if you've got a majority who want something and it's a great thing. I don't understand it.  

"It's not like it's an every night deal," Vassar added. "It's a real special place. It's a special place to play music. You just kind of hope that everybody just kind of lets it go and has some fun. You know, people are stiff. I hate it. I hate it. I'm over it. People just need to get a life."

Through three sets of music -- the Kentucky Moonshiners, the Morgan Twins and Vassar -- several hundred music fans did have a life. And it was a party, especially with Vassar on stage making sure everybody had a good time.

The Morgan Twins are from Rochester and have appeared on such shows as The Voice and American Idol.

While Vassar was still on stage performing, a check of the sound level at Oatka Trail and Conlon Road, near the homes of plaintiffs -- the Cleere and Collins families -- found that once again, the crickets were louder than the music.

The next scheduled show at The Ridge, if it's allowed to proceed, is the Marshall Tucker Band, Sept. 6.

A fan brought in a homemade cake during the meet and greet with VIP patrons before the show.

Bottom photo: by Peggy Barringer. David, in red, and Greg, joined Vasar, along with the Morgan Twins, on stage for the show's final number, a sing-along of "Piano Man."