It will be another three weeks before the town Zoning Board of Appeals considers the appeal of Owera Vineyards over a decision by the town codes enforcement officer denying Owera’s plans for a June 10 event. The delay in the case — originally heard by the board on June 23 — was decided after the CEO’s attorney filed a motion for the ZBA to dismiss the appeal altogether as “untimely,” claiming that Owera had missed the 60-day appeal deadline as required by law.
The motion to dismiss was filed with the ZBA the morning of its June 23 meeting on the issue. The board therefore decided to reschedule consideration of the appeal to July 28 to allow both its members and Owera’s attorneys time to digest the new filing and prepare revised arguments.
“It’s only appropriate, since the information was only received today, that both sides get the opportunity to give more information to the board before any public hearing is conducted,” said ZBA Chair Chris Fischer.
The appeal was the result of CEO 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 as scheduled in the event tent was scheduled to end at 9:30 p.m. Cook determined that the operation of the tented event center is “considered to be outside” and therefore must end by 5 p.m.
Owera cancelled the event, then rescheduled it to occur from 1 to 4 p.m. on June 22.
Owera appealed the Cook’s decision on June 6, claiming his determination had caused — and would continue to cause — the winery financial hardship. Owera’s appeal continued the winery’s year-long disagreement with the town over whether its three-season events tent is an indoor, not an outdoor, structure as the town claims, and goes farther by claiming that the winery’s hours of operation as approved under its original site plan approval are not enforceable by the town.
The motion to dismiss the appeal — filed by Town Attorney John Langey who is representing Cook and recused himself as the ZBA attorney in this matter — stated that while Owera claimed the appeal was timely because Cook’s decision was made on April 22, the winery’s 60-day appeal time actually started on Sept. 6, when Cook had issued an “identical determination” against Owera. Since Owera did not appeal the September CEO determination, it essentially waived its right to appeal this issue.
“It is undisputed that Owera did not undertake such an appeal to your board and therefore they are time barred from any subsequent appeals of the same issue,” according to Langey’s motion to dismiss.
Owera attorney Thomas J. Fucillo told the ZBA on June 23 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” by the determination, therefore the official 60-day time limit for the appeal did not start until then.
Langey countered that the September citations were “crystal clear” as to “what our intent was” and claiming ignorance of the proper procedures was not an acceptable defense.
The board adjourned into executive session with its temporary attorney, Robert Germain, for 30 minutes, after which it unanimously agreed to reschedule the appeal hearing — as a public hearing — for July 28. Fischer asked attorneys for both Owera and Cook to submit all legal arguments and supporting documents by the end of July.
The board also scheduled a work session about the Owera appeal for 7:30 p.m. Monday, July 14. While the work session is open to the public, it is not a public hearing and public comments will not be allowed, Germain said.
Jason Emerson is editor of the Cazenovia Republican. He can be reached at [email protected]
