Jul 30, 2014 Jason Emerson Uncategorized
After listening to an hour of legal arguments and public comments concerning Owera Vineyards’ appeal of code enforcement decisions regarding winery operations, the town Zoning Board of Appeals Monday closed its public hearing on the issue and declared it would make a decision in the case by its August meeting.
The July 28 public hearing, attended by a full room of spectators, offered not only substantive arguments and discussions on the issue, but also, at times, saw mutterings and accusations from members of the audience, including both winery neighbors and Owera owner Nancy Muserlian. There was also some pointed questions and hard talk from ZBA members — particularly Gene Smith, who at one point accused Owera’s attorney Thomas Fucillo was “talking out of both sides of [his] face.”
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 decision in June.
The ZBA discussed the appeal at its June 23 meeting, and continued the hearing on Monday, during which both Fucillo and Langey reiterated their previous positions on the merits of the appeal. The discussions centered on whether or not the winery’s events tent is an indoor or outdoor structure and whether the winery is legally bound to follow its hours of operation as set in its site plan approval.
Both attorneys and ZBA Chair Chris Fischer agreed that if the ZBA decides that the tent is an indoor structure, then the argument over hours of operation is moot, since Owera would then be allowed to hold events in the tent until 10 p.m. or later, as stated in the site plan approval.
Added to this discussion was a recommendation by the Madison County Planning Department, issued last Friday, July 25, which declared that the MCPD 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.
“The county planning agency’s decision completely vindicates our argument,” Fucillo told the board. Langey countered that the county did not know the “historical arguments” of the winery during its years of planning board appearances, during which “indoor” operations meant the tasting room, not the events tent, which was added later in the planning process. If the county had known the complete history, it never would have deemed the tent to be an indoor structure, Langey said.
One of the more dramatic moments of the meeting occurred when Langey said even Owera vineyards considered its event tent an outdoor structure, as was evidenced by an April 23, 2012 site map, created by Owera’s engineering firm, which included the label, “tent area for outdoor functions,” adjacent to the tent illustration.
ZBA Member Gene Smith asked Fucillo why the map labeled the tent as “outdoor” if the winery argues the tent is “indoor.”
“I don’t know why that was put on there, sir,” Fucillo said, to the laughter and guffaws of many in the audience. He added that the term “outdoor” referred to the pergola farther down the map, not the tent that was adjacent to the words.
Smith, who shook his head and rubbed his eyes, said, “I can read. I’d have to be an idiot not to see what that says.”
When Fucillo tried to reiterate his explanation that the “outdoor” label did not refer to the tent or mean it was an outdoor structure, Smith said, “Nothing you say makes sense.”
During the public comment period of the meeting, four of Owera’s neighbors all spoke in favor of Cook and Langey’s interpretation of the town code and against Owera’s position that the tent is an indoor structure and therefore does not have to follow the approved hours of operation.
The board then voted unanimously to close the public hearing, after which Fischer said the board would “reserve its decision and make a determination as part of a larger determination on all pending issues” at its next regular meeting, scheduled for Monday, Aug. 25.
Jason Emerson is editor of the Cazenovia Republican. He can be reached at firstname.lastname@example.org.
Jason Emerson is editor of the Cazenovia Republican and Eagle Bulletin newspapers.