Aug 26, 2014 Jason Emerson Uncategorized
Owera Vineyards’ three-season event tent is not an indoor building, as the winery owners claim, but an outdoor facility; and all events held at the winery — whether in the tent or not — must abide by the prescribed hours of operation as approved by the town planning board in 2012, hours which are enforceable by the town.
This was the decision of the Town Zoning Board of Appeals, issued Monday, Aug. 25, at the ZBA’s regular monthly meeting, in response to an appeal by Owera seeking to overturn a town zoning enforcement officer determination concerning allowable facility events.
The ZBA not only ruled against Owera’s arguments that its event tent is an indoor structure and therefore events held in it are not subject to the winery’s town-approved hours of operation, it also dismissed “with prejudice” Owera’s appeal as untimely because it was not filed within the prescribed 60-day time period.
Calling the arguments of Owera’s attorney “flawed,” the ZBA stated in its decision concerning hours of operation, “We do not believe the town planning board intended to approve operation of the facility 24 hours a day, without restrictions as the applicant suggests.” As for the inside/outside distinction of the tent: “Regardless of the elaborate nature of the tent facility, it is still only made of fabric without weight-bearing or insulated walls. We believe the planning board granted site plan approval based upon the understanding that use of the tent would be an ‘outdoor’ activity that could have adverse environmental effects upon the neighborhood,” the decision stated.
Owera’s appeal, filed on June 6, was the result of town Codes Enforcement Officer Roger Cook’s April determination that a June 10 Owera event would violate the winery’s permitted operations because all outdoor events are required to end by 5 p.m., but the event in the event tent was scheduled to end at 9:30 p.m. Cook determined that the tented event center is “considered to be outside” and therefore must end by 5 p.m.
Owera cancelled, then rescheduled, the event for a different day and time, but its appeal claimed that Cook’s decision had caused — and would continue to cause — the winery financial hardship. The appeal claimed that the events tent is an indoor, not an outdoor, structure as the town claims, and also that the winery’s hours of operation as approved under its original site plan are not enforceable by the town and were more “expected” than “mandatory.”
Town attorney John Langey, who is representing Cook, having recused himself as the ZBA attorney in this matter, filed a motion to dismiss Owera’s appeal on the grounds that it was past the law’s 60-day appeal time. His position is that Owera should have appealed an identical decision by Cook last September, rather than the same determination in June.
Owera attorney Thomas J. Fucillo countered that while Owera did receive Cook’s September citation, there was no further communication from the town or even any enforcement action taken, so the winery did not know that it had to respond. It was not until Cook’s April 22 determination, which caused Owera to cancel its June 10 event, that the winery was actually “injured,” therefore the official 60-day time limit for the appeal did not start until then.
The ZBA discussed the appeal at its June 23 meeting, continued the hearing on July 28; it also has spent “a considerable amount of time” reviewing the record and consulting with counsel on the issue, said ZBA Chair Chris Fischer.
The Madison County Planning Department also issued a recommendation on the disagreement on July 25, declaring that the department considers Owera legally bound to operate within the hours set in its site plan approval, but also that the event tent is an indoor — and not an outdoor — structure.
In its two-and-a-half pages of findings and decision, the ZBA stated that it believed the planning board decision to approve Owera’s site plan was based on adopted “findings,” among which were the specific hours of operation — hours of operation which Owera attorneys and owners repeatedly stated to other agencies, including the State Liquor Authority.
The ZBA decided that if Owera wants to change or amend its approved hours of operation, it must return to the planning board “for relief.” Failure to seek a change from the planning board “constitutes a failure to exhaust administrative remedies and bars further action by the applicant,” the decision stated.
As for the character of the event tent, the ZBA found that the planning board granted site plan approval based upon the understanding that the tent was for outdoor activities, therefore, “reasonable control of the hours of operation are warranted to protect the public.”
Finally, the ZBA stated that it agreed with the town’s position that Owera failed to file its appeal within the 60-day limit set under the law. The ZBA agreed that Owera should have appealed after Cook’s Sept. 6 violation, which addressed “the same or substantially similar issued appealed in this matter,” and not after his June determination.
“The applicant argues there must be some element of damage or harm to trigger the time for appeal statute. However, there is no such language contained in the code,” the decision stated.
The ZBA stated that Owera’s 60-day time to appeal started from the filing of its acknowledgement of the violation on Sept. 12, 2013, and therefore the time to appeal expired on Nov. 12, 2013. “Petitioner is therefore foreclosed from now challenging essentially the same ruling,” the decision stated.
Owenrs owners Nancy and Peter Muserlian did not attend the Aug. 25 ZBA meeting during which the decision was issued. Fucillo was present and accepted a copy of the decision, but did not make any statements.
If the Muserlians disagree with the ZBA decision, their only recourse would be to purse an Article 78 proceeding in state supreme court to challenge it, Fischer said.
Jason Emerson is editor of the Cazenovia Republican. He can be reached at email@example.com.
Jason Emerson is editor of the Cazenovia Republican and Eagle Bulletin newspapers.
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