The disagreement between Owera Vineyards and the Cazenovia town planning board over how the winery should be allowed to operate its business continued last week when Owera’s owners, Peter and Nancy Muserlian, filed suit in New York State Supreme Court against the town planning board.

The Article 78 proceeding is a challenge to the planning board’s approval on Feb. 5 of Owera’s site plan application to construct a 6,300 square-foot permanent promotion and marketing facility on its East Lake Road property. That approval included numerous conditions on the business such as restrictions on hours of operations, number of events and number of people allowed per event in the building, as well as stipulations on how the winery must prove to the town that it is abiding by state agriculture and markets department rules — conditions which Owera claims in its lawsuit were not only “arbitrary and capricious” but also exceeded the planning board’s jurisdiction.

The planning board’s decision “imposed many conditions of approval, and we are challenging several conditions of the approval,” said Owera’s attorney, Thomas J. Fucillo, of Menter, Rudin and Trivelpiece law firm in Syracuse.

“We regret we had to take the action but the conditions were too restrictive for our business,” said owner Nancy Muserlian.

Owera’s Article 78 suit — which is a challenge to a determination made by a municipal body — was filed in New York State Supreme Court in Madison County on March 10.

While Cazenovia town officials and its town attorney know that a lawsuit has been filed, they have not received official notice yet, according to Sue Wightman, town planning board clerk and deputy town clerk.

“We are waiting to be served; we have heard we are being sued but have not been served yet,” Wightman said.

The suit seeks annulment of 10 of the 33 conditions, plus one scheduled compliance protocol, included in the planning board’s site plan approval for Owera’s new events facility. The lawsuit alleges that the challenged conditions are “either unreasonable, beyond the planning board’s jurisdiction or authority to impose, or the need for such drastic conditions and their nexus to the health and safety concern they purportedly relate to has not been demonstrated by sufficient objective evidence in the record.”

All of the conditions “limit Owera’s [business] operations without adequate cause or proper rationale,” the lawsuit states. It also repeatedly states that unreasonable conditions are based on the noise, lights and traffic issues that occurred in 2013, and were the subject of neighbors’ complaints, but that all of those have been resolved.

According to the lawsuit, a copy of which has been obtained by the Cazenovia Republican, Owera’s status as a “start-up farm operation” prevents the planning board from unreasonably restricting its operations and that the supposed health and safety concerns cited in the planning board approval were based on “vague and unsupported complaints and community opposition, or matters that have been resolved previously or will be resolved by use of the building rather than the tent.”

The lawsuit alleges that 10 of the planning board conditions are “arbitrary and capricious” and should be annulled by the court. These challenged conditions include:

✓Noise limits. Limiting Owera’s activities to 55 decibels is “unreasonable” and discriminatory because there is no noise ordinance in the town and so this affects only Owera. The suit alleges that noise limits are unnecessary because the new soundproof building will fix the problem.

✓Hours of operations. Limiting the winery’s hours of operations to 6 p.m. on weekdays and 9 p.m. on weekends, rather than the 10 p.m. weekdays and midnight on weekends as requested, is arbitrary and capricious and the board has no authority to do so.

According to the lawsuit: “There is no objective information in the record to support the planning board’s justification for the limited hours imposed in the condition. The predominant character of the neighborhood is not residential, and even if it were, that fact does not override the protections contained in [state Agriculture and Markets law]. A farm operation is entitled to protection, regardless of the adjacent land use.”

The suit alleges there is no objective evidence that extended hours of operation will harm the community.

✓Limiting the size and number of events. The lawsuit alleges there is no “rational basis” for this condition and is “clearly meant to regulate the internal operation of Owera rather than the impacts from its proposed use of the premises.”

Other conditions include: the use of a traffic officer for larger events; that Owera provide ongoing proof of compliance with Department of Agriculture and Markets policies; that the planning board retains ongoing jurisdiction of the winery’s operations and may revoke the site plan approval if Owera fails to abide by the conditions; and the requirement that Owera expand its acreage under grape vine cultivation.

Owera contends in its lawsuit that the only fair judgment by the court is to retain the planning board’s site plan approval but annul the 10 conditions that Owera opposes.

Town Attorney John Langey was unavailable for comment prior to press time, but during the town planning board’s Feb. 5 meeting at which Owera’s approval was announced, Langey said multiple times that he had consulted with the state Department of Agriculture and Markets about the planning board’s conditions in the approval and the department did not object.

Town Supervisor Bill Zupan said he was not in a position last week to comment on the specifics of the Owera lawsuit. In general, however, he said, “It is their right to sue and it is our right to defend our planning board.”

He said he would be meeting with Langey this week to review the lawsuit in detail.

Zupan said did not know offhand the costs to town taxpayers of the town’s ongoing issues with Owera since 2013, or the upcoming costs in fighting against this new lawsuit. He said that the numerous studies conducted as part of the site plan review of Owera’s proposed building were paid for by the winery, while most of the costs of the town attorney are covered under his annual contract in his municipal position.

As for Owera’s neighbors, who have been fighting against the winery since 2013, they are discouraged but not surprised by the filing of the Muserlains’ lawsuit.

“I would say that the residents are disappointed that the site plan approval, labeled a ‘compromise taking into account the interest of both sides’ was just not good enough for the developers,” said Ken Moynihan, speaking on behalf of many of the neighbors who fought against the planning board’s site plan approval. “The sentiment among area residents not directly impacted was that the site plan approval was very fair and the concern is why would a suit be necessary or warranted. For a local business that pays no taxes to the town, county or schools to now take a step that will prove to be very costly and only benefit them is unsettling, at best.”

A hearing on the lawsuit is scheduled to occur at 1:30 p.m. Thursday, May 14, in the Madison County courthouse in Wampsville.

Jason Emerson is editor of the Cazenovia Republican. He can be reached at [email protected].