Jam at the Ridge 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.

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.

To say Blackberry Smoke rocked the house Saturday night at Frost Ridge might be misconstrued.

There are no reports of windows rattling in the homes of Frost Ridge neighbors.

In fact, a deputy assigned to monitor the decibel levels at Conlon Road and Oatka Trail Road said the noise level never went much above 60 decibels, well below the threshold of 100 set by Judge Robert C. Noonan when he issued an order a few days ago allowing the concert to take place.

The fact is, at the corner of Conlon and Oatka Trail, through most of Blackberry Smoke's set, the crickets were louder than the music.

Blackberry Smoke is billed as an up-and-coming, soon-to-be-big-stars Southern rock/outlaw country band, and if fame is measured by only a few hundred die-hard, rambunctious fans, Blackberry Smoke has already hit the big time.

They did rock the house and the fans raised the roof.

The band is Charlie Starr (lead vocals, guitar), Richard Turner (bass, vocals), Brit Turner (drums), Paul Jackson (guitar, vocals), and Brandon Still (keyboards).

A five-piece combo can make a lot of noise, and inside the Frost Ridge amphitheater at stage level, the band seemed no less loud than their show in the same venue a year ago.

A sound engineer familiar with the venue predicted before the show that the hill between Frost Ridge and the homes of Cleere and Collins (the two plaintiffs in one of the lawsuits against Frost Ridge) would absorb all of the treble and mid-range of the music, while bass tones would bend some and carry over the hill.

The crickets, he said, would be louder.

That certainly seemed to be the case.

In their lawsuit against Frost Ridge, 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.

The Town of Le Roy is pursuing a parallel suit against Frost Ridge.

Both suits allege that live music at Frost Ridge violates local zoning laws, even though the campgrounds owners, Greg and David Luetticke-Archbell, received a previous ruling from the Zoning Board of Appeals that the use is an allowable, prior nonconforming use (grandfathered in).

While the Town of Le Roy is not suing the ZBA, the town board does not agree with that ruling, or does not find it valid. The Cleeres and Collins suit names the ZBA as a co-defendant. 

Delays in the process have prevented a hearing on whether the ZBA decision was filed with the town clerk prior to April 6. That hearing will be held Aug. 21. If it's determined that ZBA decision was filed prior to April 6, it could invalidate the the lawsuits against Frost Ridge on statute of limitations grounds.

Because of the delay of the hearing and the financial toll to Frost Ridge with five previous shows cancelled by court order, Noonan lifted the restraining order for the Blackberry Smoke concert, but barred alcohol sales.

The next scheduled show is at The Ridge NY is Phil Vassar and the Morgan Twins, Aug. 23.

The slide show below also includes photos of Chris Weaver Band, one of Saturday's opening acts.

AUDIO: A recording taken during the concert last night at the corner of Conlon and Oatka Trail (mp3).

A seat front-and-center for the Blackberry Smoke set was auctioned off and $375 was raised for the Le Roy Fire Department. 

The decibel reader employed by a deputy to monitor noise levels at Conlon and Oatka Trail roads.

The owners of Frost Ridge Campground have been told Judge Robert C. Noonan has lifted his court order barring live, amplified music at the campground, at least for this weekend.

The band Blackberry Smoke headlines Sunday Saturday.

At a hearing last week, David Roach, attorney for Frost Ridge, told Noonan that if the order wasn't lifted in time for this weekend's show, Frost Ridge was facing insolvency. 

David Luetticke-Archbell, co-owner of Frost Ridge, called The Batavian a short time ago to share the news. We're still awaiting a copy of the order.

Frost Ridge will still be barred by the original court order from selling alcohol, but that doesn't mean patrons can't bring their own beverages.

The temporary suspension of the temporary order baring amplified music at Frost Ridge comes as court proceedings in a pair of civil suits against the campground have bogged down.

Two neighboring residents, the Cleere and Collins families, along with the Town of Le Roy, are suing David and Greg Luetticke-Archbell alleging that the campground as a whole and live music and alcohol sales in particular, are not permitted under current zoning.

David and Greg contend that those uses are grandfathered in by the property's prior zoning and they have two Zoning Board of Appeals rulings that support such a claim.

The Cleere and Collins' suits challenge the ZBA's 2013 determination, and here's where the case has bogged down: If it's proven that the ZBA's 2013 determination was filed with the town clerk more than 30 days before Cleere and Collins filed their suit, it could mean their complaint could be thrown out of court. Attorneys and the court have been unable so far to hold a hearing on that point

Since the hearing can't be scheduled now until the end of the month, Roach sought for his clients, permission from the court for the concert this weekend.

Press release:

The Ridge NY (formally Frost Ridge Campground) is hosting its first Community Fun Day on Saturday, Aug. 2, from noon to 10 p.m.

It's FREE!

There will be activities for all ages with the following events scheduled:

• Noon until 3 p.m. -- NAZCAR -- Decorate a racing car made from cardboard and see who wins the big race
• 3 to 5:30 p.m. -- Slippery Slope -- Big fun on the 300-foot-long slippery slide. All ages love this event. Bring your swimsuit and a towel.
• 6 p.m. -- Dinner. Bring a dish to pass. Hamburgers and hot dogs available, too.
• 7 p.m. -- Open Air Dancing. Dance until the stars come out!
• 9:30 p.m. -- Nighttime Glow Stick Wagon Rides

Come out and have some fun with your neighbors and friends!

Frost Ridge Campground is on the brink of insolvency, the attorney for Greg and David Luetticke-Archbell told Judge Robert C. Noonan during a court hearing today.

He's seeking at least temporary relief from the ban on live shows at the campground in Le Roy.

Today's hearing was held so attorney Mindy Zoghlin, representing the people suing Frost Ridge over live music shows at the campground, could make a motion to re-argue one of the issues under consideration by Noonan.

Attorney David Roach, representing Frost Ridge, would have liked today's appearance to have been a hearing on his motion to dismiss the lawsuits against his clients.

Roach was hoping there would be testimony today on when the Zoning Board of Appeals filed minutes from its September 2013 meeting where it determined Frost Ridge was in compliance with Town of Le Roy zoning law.

Roach tried to make the case during the hearing that Noonan needs to revisit sooner rather than later his temporary order barring live music and alcohol service at Frost Ridge.

Noonan wanted the attorneys to focus on coming up with a time for a hearing on the ZBA filing.

After attorneys met privately and then met with Noonan in his chambers, it was determined that the hearing will be at 9 a.m., Aug. 21.

In the meantime, Noonan agreed to let Roach draft an order that would temporarily lift the temporary restraining order and allow Frost Ridge to hold a live music concert Aug. 9.

That's the date Blackberry Smoke, one of the more popular acts to perform at Frost Ridge each year, is scheduled to return.

In open court, Zoghlin tried to suggest to Noonan that allowing any shows prior to resolution of the ZBA filing status isn't necessary because Noonan has already ordered that if Frost Ridge prevails in the lawsuit, they are entitled to nearly a quarter of a million dollars in restitution.

Of course, even a quarter of a million dollars somewhere down the road won't necessarily help a shuttered business reopen, which is why Roach is pushing for some mechanism to allow the bands to play on.

"The reality they are not facing is where the preliminary injunction effectuates the relief the town is seeking and (in previous cases) courts are loathe to allow preliminary injunctions to provide ultimate relief," Roach said during the hearing.

The big hold up in the case is getting either the ZBA's clerk or the town's code enforcement officer, or both, to testify as to a general time frame of when minutes from the ZBA's meeting in September 2013 were filed.

The town clerk has provided an affidavit attesting to the fact that the minutes were filed, she just couldn't remember when.

If the filing date is proven to be any time before April 8 (even if the exact date is not established), then Roach's motion to dismiss the lawsuits filed by the Town of Le Roy and the Cleere and Collins families could potentially be granted by Noonan.

Under New York law, people who wish to challenge a board's decision have 30 days to file such a challenge. The clock starts ticking when a written, public document memorializing the decision is filed with the jurisdiction's clerk.

Noonan ordered more than two weeks ago that a hearing on the ZBA minutes should be held immediately.

The hearing still hasn't taken place, in part because Noonan's court has been busy, which Noonan admitted, but Noonan also laid much of the blame on the shoulders of the attorneys for not agreeing on a time.

Roach expressed a great deal of confidence that either the town clerk, the ZBA clerk or the code enforcement officer for the Town of Le Roy, should be able to testify that the minutes were filed well before April 8, and probably in 2013.

The threat of losing that motion is apparently what prompted Zoghlin's motion today to invalidate the ZBA's determination favoring Frost Ridge all together.

Zoghlin's motion is for a "jurisdictional defect." In essence, she's arguing that because there is no formal document memorializing the ZBA's decision, and no formal process that Frost Ridge followed requesting a ZBA ruling, the ZBA had no authority to make its determination.

Roach said there's no written law and no case law that support's Zoghlin's position, also for a motion to re-argue a point from a previous hearing to be successful, the point must have been argued in the first place. Roach said that since Zoghlin (and she disagrees with Roach on this) didn't raise the "jurisdictional defect" argument the first time around, she doesn't get to re-argue it now.

"If the court did not have that jurisdictional defect argument advanced before it in response to my motion to dismiss, there's nothing for the court to have overlooked or misapprehended," Roach said. "The court of appeals has ruled that you cannot bring a new argument to a motion to re-argue."

If Noonan grants the order being drafted by Roach to allow live music at Frost Ridge between now and the hearing on the motion to dismiss the lawsuits, Roach said there will be reasonable restrictions attached. For example, there would be a limit on the decibel levels of the show.

"Frost Ridge, and I want to make this perfectly clear, Frost Ridge did not and does not presently have any intent of causing an unreasonable noise disturbance to its neighbors," Roach said.

Judge Rorbert C. Noonan wants more information before he decides whether to dismiss one or both of the lawsuits against Frost Ridge Campground in Le Roy.

In a written decision this afternoon, Noonan held off making a decision on the motion to dismiss the suits as well as on the motion to lift the temporary injunction against amplified music at Frost Ridge.

He's ordered a hearing as soon as possible on the assertion by attorney David Roach that the statute of limitations has expired for challenging the Zoning Board of Appeal's determination in the Fall of 2013.

"While Frost Ridge and the ZBA submitted that such minutes were filed with the Town Clerk 'within a matter of days' after the October 22, 2013 meeting," Noonan wrote, "the Town Clerk submits that she 'cannot pinpoint the date (the clerk of the ZBA) delivered the minutes of the Sept. 25, 2013 meeting to her," and that they are customarily filed only 'sporadically.' Therefore, on the existing record, Frost Ridge and the ZBA have failed to carry their burden of proof on the issue."

The ZBA clerk is currently involved with medical issues, Roach told Noonan during today's hearing, and is therefore unavailable to provide an affidavit on when she filed the minutes.

She is expected to be available in a week, he said.

Frost Ridge is fighting twin lawsuits: One filed by the Cleere and Collins families, who own adjoining property, and one filed by the Town of Le Roy asserting Frost Ridge not only is barred by the zoning ordinance from hosting amplified music concerts, but has grown beyond what was grandfathered in when the current zoning ordinance was adopted.

Under NYS law, any party challenging the ZBA's determination would have 30 days from the time the decision is filed to legally seek to overturn the decision. If it can be proved by the defendants that minutes were filed with the Town Clerk in the Fall of 2013, that would be much more than 30 days and could therefore provide grounds for the lawsuit by Cleere/Collins to be dismissed.

What happens with the Town of Le Roy's lawsuit against Frost Ridge is a little more complicated.

"Nor will the Town's action be dismissed for failure to join the ZBA as a defendant," Noonan wrote. "Although the ZBA may wish to intervene in this case, it is not a necessary party to the Town's action to enforce its zoning laws; and, it is questionable whether the Town is collaterally estopped by the ZBA's determination."

Noonan's ruling seems to back the assertion by the defense that the ZBA made a valid determination that land use at Frost Ridge in 2013 was a legal, preexisting, nonconforming use.

"Thus," he writes, "contrary to the Town's contention, the minutes of the meeting permitting the noncomforming use are sufficient for a proper determination."

No date for a follow-up hearing has been released yet.

The owners of Frost Ridge are expecting to find out this afternoon whether their 2014 concert series will be held at the campground this year, or whether they must continue to hunt for alternative venues.

This morning, attorney David Roach asked Judge Robert C. Noonan to vacate his preliminary injunction of May 24 that barred amplified music and alcohol service while a pair of lawsuits are pending against Frost Ridge.

Roach based his motion on the fact that the Le Roy's Zoning Board of Appeals wasn't represented at May's hearing and now that the ZBA is represented in the case, new information has been presented to Noonan that shows the ZBA determined that Frost Ridge was being operated in 2013 within the bounds of its status of a nonconforming, preexisting use.

At the May hearing, Town of Le Roy attorney Reid Whiting said the ZBA declined to be represented in the suit (ZBA members didn't even know about the suit at the time) and he presented what's known as a "verified answer" by Supervisor Steve Barbeau that stated the ZBA determination was invalid.

Today, Roach filed an amended verified answer (the answer is in response to the lawsuit by the Cleere and Collins families) from the ZBA itself that states that live music and food service are grandfathered in at the campground.

On the basis of that change, Roach argued that Noonan's injunction was granted without the proper factual information and should therefore be vacated.

"It is no longer clear -- as the court preliminary held -- that my clients have committed a zoning violation," Roach said. "With the ZBA's amended verified answer, the weight of the evidence has shifted such that it is now clear my clients are in compliance with the zoning code as a prior, nonconforming use."

Mindy Zoghlin, attorney for the Cleeres and Collins, argued that the ZBA's minutes don't help Frost Ridge.

"The ZBA minutes say they were asked to review the need for a special-use permit," Zoghlin said. "Dave outlined the history of the campground, and just the campground, as established prior to the zoning law being passed. After his presentation, the ZBA board discussed the issue of the campground, and just the campground and whether it is grandfathered in. It's not clear from the minutes what they're talking about."

Zoghlin said her clients have no issue with the existence of the campground or music at the campground. They are against it being used as a live music venue.

"We're not challenging the decision that the campground is a preexisting use," Zoghlin said. "That's a mischaracterization of the argument and a misunderstanding of what the court ruled the first time around. What we're saying is they can't legally expand the campground unless they go to the ZBA and apply for and receive a special-use permit for expansion."

Whiting made only a brief statement to Noonan and said the defendant's reliance on the ZBA determinations are puzzling to him because he thinks the ZBA rulings produce very unfavorable results for Frost Ridge.

"In 1998, the ZBA ruled clearly there can be no expansion of any structure and can be no change in use whatsoever. On both measures, the campground has aggressively and significantly sought to expand both uses and structures on the campground."

Roach countered later that the ZBA's positions clear that in 2013 they knew what was going on at Frost Ridge and that based on testimony and personal knowledge of board members, the use in 2013 (which included concerts and food service) was grandfathered in.

Noonan could decide, Roach suggested, to kick the issue back to the ZBA to hold a hearing and define exactly what it meant by campground and what it considers to be a prior, nonconforming use.

Both lawsuits -- the one filed by Cleere and Collins and the one filed by the town -- against Frost Ridge should be dismissed, Roach said, because the statute of limitation (in this case, 30 days) long ago expired for challenging the ZBA decision.

Zoghlin told Noonan that the defendants have failed to provide proof of when the determination was filed with the Town Clerk, and without that proof, there is no evidence that the statute of limitations has expired.  

She also said the record is incomplete because for the 2013 determination, there was no application filed by Frost Ridge for a decision.

"There's no forms filled out," she said. "There's nothing in writing."

Roach said Frost Ridge owners Greg and David Luetticke-Archbell relied on the ZBA's 2013 determination to go ahead and book concerts for the summer of 2014. They could potentially be out of tens of thousands of dollars if the preliminary injunction isn't lifted.

Noonan said he will issue a written decision at 3 p.m. today.

Don't let the crime scene tape mislead you. Officials are not calling their search for the cause of Saturday morning's fire at 8005 North Road, Le Roy, a criminal investigation.

But arson hasn't been ruled out, either.

Nothing's been ruled out.  

Today, investigators from the Sheriff's Office, Emergency Services and the State of New York, were going over every inch of rubble looking for signs and clues. Le Roy FD's ladder truck was brought in at one point so investigators could obtain aerial photos of the site. The property's owners, Greg and David Luetticke-Archbell came to their house to explain to investigators what was where.

Jim Bouton, an emergency management coordinator and fire investigator with the county, said officials may be ready to discuss theories and findings soon.

Previously:

• Fully involved structure fire on North Road, Le Roy
• Home of Frost Ridge Campground owners in Le Roy destroyed by fire
• Frost Ridge owners experience outpouring of community support after devastating fire

Greg, David and their children lost all of their personal belongings in the fire. A site for community donations has been set up. Click here to access the site.

This thermostat is on a shed about 100 feet from the west side of the house. Radiant heat turned it into a curly fry.

While David Luetticke-Archbell chatted with one of the many well-wishers who stopped in his shop at Frost Ridge Campground on Saturday afternoon, he looked out the window and up the hill that traditionally has been a ski slope, but was on this sunny summer day a slip-and-slide.

Children and adults hollered as another slider managed to make it down the hill in a well-worn groove in the middle of the slide and flew over the hump at the end of the run. 

David smiled.

"I always say, 'this is a fun place,' " David said. "This is what it's all about. I look out and I see people having fun and it takes kind of some of the sting out of it. We lost some stuff, but this is why we're here, so we can have fun. We'll continue on. At least I plan to."

David and his partner Greg moved to Le Roy from San Diego in 2008 to purchase Frost Ridge and run it as a place where people could have fun.

They've built a successful business by offering personal service, great events and even live music.

It's all been jeopardized by the lawsuits of two neighboring couples and the Town of Le Roy. The suits aim to put the Luetticke-Archbells out of business.

In the stress of it all, Greg has had two heart attacks.

Then last night, they lost their home to fire. It was a home to David and Greg and their three children and dog Sadie. It contained, David said, everything that was important to them.

News of the disaster has spread among Frost Ridge supporters quickly. They've rallied to offer David and Greg both moral and monetary support.

"People have come from everywhere, even people I barely even know, have come to say we support you, we're praying for you," David said. "I've been handed two envelopes with cash in them. I have no idea who it came from, and they don't want me to know, and I'm sure there's more I don't know about."

Stacy Ward, a Frost Ridge employee, was standing nearby and said, "yes, there's more."

David, at that point, didn't know that campers had passed the hat that morning and collected $1,300 and already went shopping to buy clothing for David, Greg and their children.

He also didn't know at that point about a donation Web site that has been set up for them. So far, it's raised more than $1,600 in cash donations.

Even with the donations of money, clothing and toys David knew about this morning, he was still having a hard time taking it all in -- especially on only an hour's sleep.

"It's surreal," he said. "I'm not used to these kind of things. I don't know what to say. It's a very humbling experience."

Ernie Campoli, a seasonal camper at Frost Ridge, organized the fundraiser Saturday morning and said everybody felt it was the right thing to do.

"They're going through a tough time," Campoli said. "The town is messing with them. They just lost everything in their house, so we wanted to do something nice for them. They do nice things for everybody in the campground. We just want to show our appreciation and help out where we could."

When we spoke this afternoon, Greg was still at Strong hospital, but "screaming to get out," David said. David expected to check him out of the hospital in the afternoon. He seems to be doing well after being taken in for observation the night before because he was shaking so much after coming home to the fire just after 12:30 a.m.

Sadie is still missing.

Jim Bouton, with Genesee County Emergency Services, was at the house this morning, digging through the rubble, looking for any clues that might reveal how the fire started.

No cause has been found yet and the investigation could take days or longer.

Deborah Buchanan holds a 1960s era photo of the house. Her husband, Mark, joined the investigators in the rubble for a time pointing out the floor plan. His grandfather bought the farm the house was on in the 1940s and Mark lived in the house from 1949 to 1976, when he got married. He and his wife live in a house just a couple hundred yards to the west. The farm was originally owned by Fritz Conlon. It was a dairy farm until the 1960s and then a crop farm. Mark proudly pointed to the chimney and noted that it was still standing. His grandfather, a master mason, built it, he said. "It's not going to burn the house down. It was built right," he said.

As he stood just 100 yards from his home destroyed by an early morning fire, David Luetticke-Archbell wanted a picture made -- one that would bring in all of the scene filled with dozens and dozens of volunteer firefighters.

"I want our daughters to see this so they know that so many people came to help us," Luetticke-Archbell.

No lens offers a wide enough angle to bring it all in, but Luetticke-Archbell said he was "blown away" that so many would take their time to help others in need.

The fire may have destroyed every personal belonging of David and Greg Luetticke-Archbell, who moved to Le Roy in 2008 to purchase Frost Ridge Campground on Conlon Road.

"When we move out here, we scaled down to only what we could fit in our RV and we came and there were very few personal effects, just the things that actually had meaning because they came from a parent or a grandparent or something," David said. "There's nothing left. I keep telling the kids that it's going to be OK because we still have each other, but there's nothing else left. It's going to have to be enough."

David and Greg are parents to an 11-year-old boy and two 7-year-old girls. 

They also had a family dog, Sadie, who is missing.

David and Greg had been at the campground all day for Fourth of July and spent the evening enjoying a campfire with friends.

As they returned home at about 12:30 a.m., David said he could see the glow of a fire. He thought somebody's barn might be on fire. As they got closer he saw the fire trucks and it still didn't sink in.

"I thought, 'I hope nobody got hurt,' " David said.

Then it struck him.

"There is our home with fire on it and it’s everything that we ever had," David said. "And it’s not there anymore and I don’t know what to say."

As they pulled up, Greg rushed to the front door. He wanted to find Sadie. A Le Roy police officer stopped him from going into the burning building.

"An officer said 'no you can't, it's too dangerous,'" David said. "He was right because about that time the front of the house – it exploded. I mean you would have thought there was a bomb in there or something. I mean you ... look at this. There’s nothing left. There’s like a frame."

While the house burned, Greg began to shake uncontrollably. He was taken by ambulance to Strong Memorial Hospital for observation. Greg recently suffered a pair of heart attacks.

It's been a stressful few months for the campground owners. They are being sued by neighbors David and Marny Cleere and Scott and Betsy Collins as well as the Town of Le Roy. The suits allege violations of the town's zoning laws over both the very existence of the campground (which as founded by Marny and Betsy's family in the 1960s) and live music concerts held at Frost Ridge. Judge Robert C. Noonan granted a temporary injunction to the town barring amplified music at Frost Ridge pending a final decision on the lawsuits.

Le Roy Fire Chief Tom Wood was the first on scene and he said the back porch of the residence at 8005 North Road was completed engulfed in flames.

Firefighters entered the structure to pitch an offensive battle against the flames, but when a ceiling collapsed on them, they had to retreat.

An explosion inside the residence knocked down a firefighter who was outside the building. He wasn't injured in the blast.

From that point, the fire fight was defensive and crews did manage to knock the fire down before it did heavy damage to the front of the house.

"Our biggest problem here was water," Wood said. "We've got three different counties worth of tankers here shuttling water."

In all, 12 fire departments responded to the scene.

Wood said it may be possible or the David and Greg to recover some belongings from the front of the structure, but in all likelihood, it will need to be torn down.

The house was built in 1806 and David said the beams of the house are cut tree trucks that still have bark on them in places.

Frost Ridge has a history of supporting the Le Roy Fire Department.

"It definitely hits home with us," Wood said. "These guys have been great to us. They run a Fun Day for us. With everything else that's going on there, they certainly didn't need this."

UPDATE 11:26 a.m.: The cause of the fire has not yet been determined. The investigation is being conducted by Deputy Frank Bordonaro, the Le Roy Fire Department and Genesee County Emergency Management. 

Assisting at the scene were Alexander, Brockport, City of Batavia, Town of Batavia, Bergen, Bethany, Byron, Caledonia, Churchville, Cuylerville, Darien, Elba, Mount Morris, Mumford, Oakfield, Perry, Scottsville, Stafford, South Byron, Pavilion and York. Mercy EMS also responded to the scene. Inmates from Wyoming Correctional Facility were also bussed in to help.

(Initial Post)

David Luetticke-Archbell receives a hug from a neighbor.

Once again, about two dozen supporters of Frost Ridge turned out Thursday evening at the Town of Le Roy board meeting to protest the town's ongoing litigation against the six-decade-old campground on Conlon Road.

Supervisor Steve Barbeau made it clear at the start of the meeting that he wasn't going to allow the kind of free-for-all debate that took place during the meeting two weeks ago.

He asked each speaker to speak one at a time and only cover topics not already raised and addressed.

About six people spoke -- a veteran who said the ban on concerts was an insult to those who fought and died for freedom; a resident who suggested the town was passing up an opportunity to put a $2 surcharge on concert tickets sold and generate a little revenue; one person who wanted to know how much the lawsuit that most in the town don't support is costing taxpayers; and a resident in the Gulf Road area who complained about toxins from a proposed facility at the old town dump being allowed while music in the community isn't allowed.

After those who wanted to speak spoke, Barbeau answered a couple of the questions and offered this summary of the town's position:

"For the town board it is not, has not, and will not be an issue of revenue, such as adding taxes, or making money off of whatever Frost Ridge chose to do or not. It isn't an issue of anything to do with any noise. It is isn't an issue of anything to do with really anything other than is this a permitted use, and by this, I mean a concert venue, whether it's for veterans or it's for anything."

At this point, Barbeau was interrupted by a couple of people, and then he went on:

"For the town the only issue is, is this a permissible use, accessory use or special use within the Town of Le Roy in an R and A zone. The Town of Le Roy's position is not only is it not a permitted use, accessory or special use in an R and A zone, it is not permitted in any zone in any district in the Town of Le Roy."

Press release:

Due to logistical issues in moving this concert to the Genesee County Fairgrounds, this event has been rescheduled for Saturday, Oct. 11th, 2014. If you already have tickets, they are still valid.  

If you have already purchased camping, please come camp with us this weekend for FREE and come back during the weekend of Oct. 11th, 2014 to get the full Jam At The Ridge Experience. More details about the activities for this weekend will be posted on our Web site TheRidgeNY.com as well as our Facebook page.

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

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.

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.

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.

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.

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: 

• Attorneys argue fate of Frost Ridge and now await ruling from Judge Noonan
• Town of Le Roy lawsuit aims to end 50 years of camping and concerts at Frost Ridge

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.