Courtroom showdown

Rivendell, town lawyers square off in Article 78 action

By Mike Townsend - New Paltz Times - March 18, 2008

Bob Ransom and Susan Wine gaze out over the 507 Albany Post Road property.
[ Photo - Lauren Thomas ]

The legal battle between Rivendell Winery and the Town of New Paltz at the Ulster County Supreme Court has already come with allegations of wrongdoing on the part of the town. According to court documents, chief among these is an accusation that the town Zoning Board of Appeals (ZBA) members violated the state Open Meetings Law by conducting secret correspondence in the space between their December 11 and December 18 meetings.

In addition, Rivendell's Article 78 action calls the ZBA's December 18 decision "arbitrary, capricious and unreasonable."

Paperwork filed by Rivendell attorney Joel Sachs also goes on to say that town officials illegally used a definition of agriculture found in the town's clearing and grading law to effectively block the winery's move to New Paltz.

"It was illegal and improper for (the town) to rely upon the definitions of agriculture set forth in such articles of the zoning ordinance, since such definitions do not define the permitted use of agriculture," the action reads.

In late February, town attorney Joe Moriello submitted an official response to Rivendell's lawsuit to Ulster County Judge Gerald Connolly.

Last week, through a Freedom of Information Law (FOIL) request, the New Paltz Times received a copy of the town's counter argument.

Illegal contact?

The town's February 25 rebuttal denies any violations of sunshine or open meetings laws.

When contacted for comment last week, ZBA Chairwoman Linda Donovan said she could not talk about the Article 78 action and deferred calls to the town attorney.

However, her written statements -- along with statements from the other ZBA members -- were included in the town's rebuttal.

Donovan testimony says that "between the close of the meeting on December 11, 2007 and the meeting on December 18, 2007, I did not meet with nor did I communicate orally or in writing or by electronic transmission with attorney Joseph M. Moriello regarding (Rivendell's) appeal."

She goes on to say that she also did not contact the other ZBA members about the Rivendell decision.

Statements from fellow ZBA members Jeffery Clock, Gail Christman, Patricia Schwartz and Robert Hughes also denied breaking the Open Meetings Law. In an interview with the New Paltz Times last year, Chairwoman Donovan said Rivendell's secret meeting claim was false.

During that December interview, Donovan said that an in-between-meetings decision on Rivendell would have been "absolutely illegal" and she added that "that certainly was not done."

An affidavit written by Rivendell co-owner Susan Wine said she thought that the town had "blatantly" violated the law. Wine claims that Donovan, Clock and Schwartz had indicated during the December 11 meeting that they would vote to overturn the building inspector's ruling.

"We clearly had three votes in favor of overturning the July 26, 2007 interpretation" made by building inspector Tom Wiacek, Wine wrote.

According to Wine's account, the December 18 meeting brought about a huge change: All the ZBA members voted to keep Wiacek's decision in place.

"Both my husband Robert Ransom and myself were shocked by this drastic change of position by ZBA members Donovan, Schwartz and Clock. There is absolutely no way that the respondent ZBA could have gone from a 3-2 vote in favor of our appeal on December 11, 2007 to a 5-0 vote against our appeal without private and illegal discussions," she wrote.

However, the town's account -- in the counter argument and in the ZBA meeting minutes -- tells a different story.

Minutes for December 11 do not reflect that any members explicitly endorsed the Rivendell project. However, they do note that Chairwoman Donovan repeatedly inquired about whether the New Paltz Town Board should change the law to provide a more direct definition of agriculture.

Minutes from the December 18 meeting show that the board voted unanimously to uphold the original decision.

While Moriello is recorded as having prepared a draft decision denying Rivendell's appeal that night, the minutes say that the lawyer "stated for the record that although he had submitted a proposed decision and findings and facts, none of these documents were prepared as a result of any consultation with any member of the ZBA."

Background on the lawsuit

Rivendell owners, Robert Ransom and Susan Wine, had sued the ZBA because the December 18 vote upheld building inspector Wiacek's original decision.

"In arriving at his tortured, arbitrary and irrational interpretation, (Wiacek) failed to look at the overall proposed operation of three parcels as a farm winery constituting an agricultural use," the Article 78 action reads.

Last summer, when Wiacek said that the proposed relocation of Rivendell from Gardiner to 507 Albany Post Road in New Paltz was not an agricultural use under town law, it effectively froze the planning board review process.

Ransom and Wine went to the ZBA in hopes that they could overturn Wiacek's decision and end the stalemate.

Some of the reasons Wiacek gave for making this decision was that Rivendell planed to convert an existing house on that property into a mixed-use office, winery and residential apartment.

Town law only allows a parcel to be used for agriculture if the town assessor grants it an agricultural exemption. In the case of Rivendell, then-assessor Michael Dunham had said that only the ten acres nearby that the winery would rent and use for a vineyard would count for that exemption -- the house itself would not count.

The town's answer to the Article 78 action says that Wiacek relied on both the town code and the state Agriculture and Markets Law to come to his determination.

The town's problem with a new Rivendell stems from this -- it would have wine cellars in the basement, tasting rooms and wine retail on the ground floor, and offices and an apartment on floor two.

According to the town's verified answer, local laws would classify it as a retail business and state law says that a parcel can't be considered as "in agricultural production" if it also includes processing or merchandising of crops.

Moriello's response also flatly denies that the ZBA or building inspector broke or misconstrued the law with their decisions or that the decisions were arbitrary.

The next steps

Both the town and winery have more paperwork to submit to Judge Connolly before he can render a decision.

The Ulster County Supreme Court ruling would focus on the sole issue of whether Wiacek and the ZBA were right in their decisions.

However, one other party will be submitting information to the judge.

Since Rivendell's plans to move became publicly known, a group of neighbors have spoken out against the proposal (see sidebar).

Kevin Harp, one of two neighbors who hired attorney James Boglioli to defend against the move, said the neighbors would pursue their right to submit testimony the judge.

"By law, we are entitled as neighbors to be part of the litigation," said Harp, who is himself a lawyer.

It is unclear when the Article 78 action might come to a resolution. However, following the ZBA's decision the town board and planning board have been discussing ways to change the zoning law to update the definition of agriculture.

NEIGHBORS CONTINUE OPPOSITION TO RIVENDELL MOVE

Outside of the Article 78 action, Rivendell's proposed move has touched off a larger debate about whether or not a farm winery even belongs so near to the Shawangunk Ridge. A group of neighbors who have organized to come to almost every meeting involving Rivendell since last summer say the winery just doesn't belong.

Winemakers Robert Ransom and Susan Wine maintain that they have a legal right to run a farm winery at 507 Albany Post Road, near that road's intersection with Route 299.

While the Article 78 action calls the attempts to block the winery's move a "classic case of NIMBYism" -- and Ransom and Wine have both repeated that charge in various interviews with the New Paltz Times -- neighbors don't see it that way.

Neighbor David Porter dismissed the NIMBY label as "demagoguery." NIMBY is an abbreviation of the phrase "not in my backyard."

Ransom and Wine said they feel attacked by their neighbors, despite any reassurances that they are more against their plan than them as people.

"They just don't want us there," Ransom said. "We're not going to screw anybody -- we live there too. Why would we destroy the neighborhood?"

The letter

Lately, one issue that has bothered neighbors has been a February 7 letter that Ransom and Wine sent to town building code enforcer Rodney Watrous.

A majority of the letter asks town officials to apply the December 18 Zoning Board of Appeals (ZBA) ruling to all farm properties -- a decision that the husband-and-wife team of winemakers have called a "war on farmers." They claim that decision makes virtually all farms that sell and process their own crops or include housing for the farmer a nonconforming use.

"In the interest of equally applying the town's interpretation of the New Paltz code to all citizens, we request that you take steps to halt all the illegal activity taking place on nonconforming properties," the letter reads.

Harry Ellis, who lives opposite Route 299 from Rivendell's proposed site, calls the letter "just sour grapes." However, he had a problem with the fact that Ransom and Wine call out their next-door neighbors John and Karen Johnson for building a storage barn on their agricultural property.

Porter, who lives on Albany Post Road, said that "it's obvious that they're going in kind of a vindictive way toward him (John Johnson)."

"What struck me about the letter was they're really attacking other farmers," Porter said.

Proximity is the reason that the Johnsons got singled out, according to Ransom. Both Ransom and Wine said that they are against the implications of the ZBA decision, but thought that out of fairness the town must apply that restriction to all farms.

"I want to figure out if we're being screwed around with and if they're screwing around with anyone else," he said.

Other issues

But the neighbors, who are supportive of the building inspector's decision, have identified other problems with Rivendell's move.

Traffic and potential drunken driving on an already busy intersection is a big worry, but another is no-warnings, the "surprise here's a winery" nature of Rivendell's plans to build in a residential area, Ellis said.

"We just assumed it was going to be another house," he said.

Ransom said he didn't think that their approach mislead neighbors. He said his intention was to use the planning board process as a very public announcement of Rivendell's intentions.

Wine said that out of all the people who complained in public only one neighbor had tried to contact them directly to express their concerns about the proposal.

According to Ransom, the message the winemakers had tried to send early on was this: "We are completely available. Please talk to us."

Porter said his objection came along a different line. "They're trying to put in a use that doesn't exist in a very sensitive area," he said.

During public meetings throughout last year, neighbors often compared Rivendell's resale of wine to a liquor store. Porter and Ellis said they thought a farm winery was too commercial a use for that area.

But with a special license, farm wineries can manufacture wines from New York grapes not even grown onsite and can retail any wine made within New York State, according to the Alcohol and Beverage Control Law.

Rivendell's Gardiner location currently holds a farm winery license and if their proposal gets out of Article 78 deadlock, Ransom and Wine would re-apply for the new location. That would give them the legal okay to retail wines.

In 1992 at the current Rivendell location, a winter storm killed off a majority of the grapes. And in 1994, Rivendell stopped growing its own grapes entirely to focus on manufacturing wine. The New Paltz location would provide an opportunity for the winery to reclaim an active vineyard.

"It's so clear and they know it," Ransom said, referring to the objections over wine sales. "It's a farm stand."

He compared tasting and buying wine to going to an orchard to buy cider. "It's 'Farmer in the Dell' time. It's no different."

Agricultural district

One of the neighbors' biggest fears about Rivendell might already be on its way to coming true.

Last year Rivendell pulled its property out of the running to be in the state agricultural district.

If a property gets that designation, the state Agriculture and Markets commissioner can compel local governments to change their agriculture laws if they're deemed too restrictive.

Porter said that if Rivendell applied again this year, got past the county review board and received state approval, they could effectively lobby the state to override the local review process.

A story published in the Daily Freeman last year reported that the neighbors submitted a 100-signature petition against the winery's inclusion into the district when Rivendell came before the county. Facing that opposition, Rivendell pulled its application to get the four acres owned by Wine into the district.

According to Wine, that last-minute withdrawal was done in a gesture of good faith to the neighbors or people who opposed the move and at the advice of a friend.

"It was the biggest mistake we ever made," Wine said. "If ever there was a case in this state that needed farmland protection and ag district, it is this."

Ransom and Wine said they had already resubmitted an application with Ulster County to be added to the state agricultural district.