Cleere v. Frost Ridge Campground, LLC

• Decision Date: 25 August 2016
• Docket Number: No. 63591.,63591.
• Parties: David CLEERE, Mary Cleere, W. Scott Collins and Betsy Collins, Plaintiffs, v. FROST RIDGE CAMPGROUND, LLC, et al., Defendants.
• Court: New York Supreme Court

55 N.Y.S.3d 691 (Table)

David CLEERE, Mary Cleere, W. Scott Collins and Betsy Collins, Plaintiffs,
v.
FROST RIDGE CAMPGROUND, LLC, et al., Defendants.

No. 63591.

Supreme Court, Genesee County, New York.

Aug. 25, 2016.

EMILIO COLAIACOVO, J.

A complaint was initially brought by David Cleere, Mary Cleere, W. Scott Collins and Betsy Collins (hereinafter "plaintiffs") on May 2, 2014 against Frost Ridge Campground, LLC (hereinafter "defendants" or "Frost Ridge") and the Town of LeRoy (hereinafter "Town") for violation of the Town's zoning ordinance in relation to defendant's campground complex, which includes an open air concert venue and full-service bar/restaurant.¹ The Town also filed a petition against Frost Ridge on May 8, 2014 alleging several zoning ordinance violations. Both proceedings, first commenced in 2014, have sought relief under Article 78 of the Civil Practice Law and Rules. The plaintiffs now seek a permanent injunction (1) directing defendants to remedy existing town zoning codes, (2) prohibiting defendants from having recreational vehicles occupy the property year-round, and (3) prohibiting defendants from conducting concerts and/or violating the Noise Law at the property. Plaintiffs also seek declaratory judgment (1) declaring illegal the Zoning Board of Appeals' (hereinafter "ZBA") determination made on September 25, 2013 and (2) declaring illegal the ZBA's decision made February 17, 2016. Further, plaintiffs seek to annul and vacate the February 17, 2016 decision pursuant to CPLR Article 78 as arbitrary and capricious. Plaintiffs also seek costs and attorney's fees.

FACTS & PROCEDURAL HISTORY

Frost Ridge is a campground facility located in the Town of Leroy in Genesee County, New York. Frost Ridge has evolved over the years. In the 1950's, it began as a ski and recreation area. In the 1960's, it expanded to allow camping. According to Harold Gage, who worked at Frost Ridge in the 1960's and 1970's, Frost Ridge broadcast music over a public address system, illuminated ski slopes for night-time skiing, provided food and beverages to customers, and featured musical bands and artists who played live music for campers and other patrons. (See Affidavit of Harold Gage, dated November 5, 2013; Exhibit C(I) of Attorney Affirmation of David M. Roach, Esq., dated May 11, 2016).

In 2002, Frost Ridge Inc., having previously applied for and been granted a non-conforming use status under the Town Code, conveyed the property to Lei–Ti Too, LLC (hereinafter "Lei–Ti). Lei–Ti expanded the facility to rebuild an existing storage facility and constructed an in-ground swimming pool. Thereafter, Lei–Ti deeded the property to its current owners. The current owners, Frost Ridge, made additional improvements to the property. These included increasing the number of campsites, increasing the number of camp site hook-ups, constructing three (3) additional buildings, adding a sound-reproducing system, and installing a concrete pad for the new concert stage with overhead lighting trusses and an "outdoor amphitheater". Plaintiffs allege these improvements violated § 165–39 of the Town's Zoning Code. The gravamen of the actions before the Court are that the defendants hosted musical acts and concerts that were amplified, which violated the local town code. Each season, the defendants scheduled and hosted more than thirty (30) different musical bands that played usually over a two (2) week period. Plaintiffs argue that the camping and attendant recreational activities, including live and recorded amplified music and limited food service, violated § 165–13 of the Town's Zoning Code and the Town's Noise Law, Local Law § 02 of 2013. Plaintiffs also contend that the recreational dwellings on the campground site violated § 165 of the Town Law.

On September 25, 2013, Frost Ridge asked the ZBA for a determination that the Campground was a pre-existing non-conforming use. David Luetticke–Archbell, one of the owners of Frost Ridge, outlined the evolution of the campground at the meeting. The minutes of the ZBA indicated that the history that was outlined "was established before zoning in the Town of LeRoy." (See Minutes, Zoning Board of Appeals, September 25, 2013. Exhibit F of Plaintiff's Complaint). After the presentation, the ZBA discussed the matter and determined that the campground was "grandfathered in" and therefore no special action was needed. The ZBA found and held that a special use permit for the campground was not necessary. The minutes reflect that the "board is vehement in their position."

Plaintiffs commenced an Article 78 proceeding thereafter by way of an Order to Show Cause against Frost Ridge, the individual owners, Gregory Luetticke–Archbell and David Luetticke–Archbell, the Town of LeRoy, and the Town of LeRoy Zoning Board of Appeals, bearing index number 63591 on May 2, 2014. Plaintiff's sought a permanent injunction directing the defendant and its owners to remedy violations of the Zoning Code, a permanent injunction prohibiting the defendants from conducting concerts at the property, a permanent injunction prohibiting recreational vehicles from occupying the property year-round, declaratory judgment that the purported "interpretation" made by the ZBA on September 25, 2013 was illegal, and Judgment pursuant to New York Town Law § 268(2). Although plaintiffs requested a temporary restraining order, essentially enjoining the defendants from operating, this request was initially denied. Thereafter, the Town commenced its own proceeding against the defendants under index number 63601. The Town requested an Order enjoining the defendants from conducting concerts and enjoining the defendants from building, opening or operating a restaurant on the premises. On May 20, 2014, Hon. Robert C. Noonan (A.J.S.C.) rendered a decision on the application made by the plaintiffs. While Judge Noonan indicated that plaintiffs demonstrated a significant likelihood of success on the merits, it was unclear whether plaintiffs demonstrated irreparable harm. However, noting Town Law § 268, Judge Noonan observed that to obtain injunctive relief based on a violation of its zoning ordinances, the Town needed only to show that it had a likelihood of ultimate success on the merits and that the equities were balanced in its favor. Judge Noonan found that the concert venue and restaurant were in violation of the zoning ordinances. Further, Judge Noonan held that "the existence of safety hazards, public order and noise concerns creates a balance of the equities in favor of the Town." (See Decision, Hon. Robert C. Noonan, A.J.S.C., dated May 20, 2014). Though Judge Noonan intimated that the Town might have misled the defendants to believe it was "grandfathered in" as it related to the current use of the property, the Court denied the plaintiffs' motion for a preliminary injunction, but granted the Town's motion for a preliminary injunction restraining defendants from holding any amplified outdoor concerts and/or serving alcohol. An Order, bearing index numbers 63591 and 63601, incorporating the decision was granted and filed May 23, 2014.

The defendants subsequently moved to dismiss all zoning violation claims contained in the plaintiffs' respective complaints and sought an Order vacating the preliminary injunction previously entered on the Town's motion. Interestingly, at odds with the Town, the ZBA joined with the defendants seeking dismissal of the zoning violation claims and supported the vacatur of the preliminary injunction. In particular, the defendants and the ZBA claimed that the actions filed by the plaintiffs and the Town were not timely brought in order to challenge the ZBA's determination of September 25, 2013. The ZBA also contended that the Town's action was defective as it did not name it as party. In its decision, the Court denied the motion to dismiss the action commenced by the Town bearing index number 63601 for failure to join the ZBA. The Court held that while the ZBA "may wish to intervene in this case, it is not a necessary party to the Town's action to enforce its zoning law." The Court found the record unclear as to when the minutes of the ZBA were filed. As such, it was difficult to determine whether the actions were timely commenced.The Court scheduled a hearing on the issue concerning the statute of limitations. (See Decision, Hon. Robert C. Noonan, A.J.S.C., dated July 11, 2014).

Thereafter, Frost Ridge moved to renew and reargue the Court's decision dismissing the zoning violations. The defendants argued that the Court overlooked its argument that the ZBA's purported interpretation was void ab initio and therefore could not be challenged in an Article 78 proceeding. The Court denied the motion to renew and reargue and scheduled a fact finding hearing for August 21, 2014. (See Decision, Hon. Robert C. Noonan, A.J.S.C., dated August 4, 2014). However, in a conference following argument, an Order was granted that modified the preliminary injunction.The defendants were permitted to host a music band playing amplified music on August 9, 2014. The music level was not to exceed 100 decibels. The Genesee County Sheriff's Department was to monitor the music sound level at the corner of Oakta Trail and Conlon Road. In addition, in the event that the decibel level "disturb[ed] the reasonable sensibilities of the average person", the decibel level of the music was to be reduced to a level "the deputy determin[ed] reasonable." (See Order, Hon. Robert C. Noonan, A.J.S.C., granted August 4, 2014).

A hearing was held on August 21, 2014 and...