Update Barrington set to appeal Bender's decision

Gwen Chamberlain
The Olney Place, located on Route 54 on Keuka Lake.

Update: Copies of Bender's decision and Bryant's injunction filing, including copies of the two versions of the Certificate of Occupancy are attached to this article. Also, see additional comments received from Town Attorney Richard Buck after The Chronicle-Express print deadline (the additions appear in italics in the body of the article). 

A decision by Judge Dennis Bender has done little to end the bitterness in Barrington. Richard Buck, the Barrington attorney, says the town plans to appeal Bender’s May 12 decision that Olney Place owner Seth Olney and his attorney say is a victory which should result in the sale of tap beer in an addition to the State Route 54 store.

While Buck wants to share the town’s argument, and explain why the town needs to appeal the decision, neither he nor any other town official has responded to questions about an allegedly falsified document that Olney and his attorney, Jessica Bryant, say was back-dated by Code Enforcement Officer John Griffin in an attempt to mislead officials at the State Liquor Authority.

“This appeal is about the zoning law, not Seth Olney,” Buck wrote in a statement from the town board early this week, continuting, “The dilemma the decision has created is that future applicants for projects in the LRD may be able to cite Judge Bender’s decision as a basis for not complying with the law or being less than forthright in any SUP application they submit. The town faces the possibility of significant problems and costs. We are seeking to have the Appellate Division confirm the town’s authority to enforce its zoning laws. “

The lawsuit was brought in 2016 by Olney who argued the town was wrong to rescind its approval for him to place four tables and 16 chairs on a deck at his State Route 54 business. The back-and-forth that has followed Olney’s original filing involves disagreements over how Olney characterized the addition of a room that has evolved into a taproom, disagreements over the status of his state license to serve beer, and open, hostile conflicts between Olney, his family and supporters, and town Code Enforcement Officer John Griffin.

Olney has used social media and interviews with local and regional news media to gain a growing base of vocal supporters by sharing his side of the issue, while town officials have taken the tried and true path of not commenting on litigation. Until recently.

While town officials still decline to answer questions about the alleged falsified certificate of occupancy that was first reported in last week’s Chronicle-Express, Buck has released a series of statements that center on the town’s position.

Buck replied on the town's behalf after The Chronicle-Express print deadline: "There has been no attempt to mislead the SLA or anyone else. The CEO's work log reflects that a TCO (temporary certificate of occupancy) was granted on June 26, 2014... Ms. Bryant's allegations imply that the CEO knew in 2014 that Seth was going to sue the Town in 2016 and was setting him up. The tap installation date is legally insignificant. From a legal standpoint, it did not and does not matter to me when the taps were installed or when the TCO was issued. What was significant is the Special Use Permit. Only the ZBA has the authority to give or deny approval for use applications. The CEO does not. Therefore, if the CEO saw installed taps prior to issuing a TCO, that document is a legal nullity from a zoning perspective. The TCO concerns the State Uniform Fire Prevention and Building Code. It does not concern the Special Use Permit."

Buck says the case is about land use, not the town regulating the sale of beer at The Olney Place.

“It is about Seth Olney operating a taproom/bar in a space that he told the town zoning board would only be used for seating 20 people and for displaying additional retail merchandise. Understandably, many people seem to confuse the issue of alcohol regulation with land use because when people talk about a taproom/bar, they inevitably link it to alcohol.”

In his decision, Bender wrote, “While the town could have a complete prohibition against establishments serving food in their zone, they chose to give (Olney) a special use permit allowing him to build the addition which was to be incorporated into his existing business, which included the on-site consumption of food, and they did so with the knowledge that he had a liquor license to serve beer.”

Bender also ruled that The Olney Place’s hours of operation are limited to those specified in the special use permit which was granted in 2013. Furthermore, Bender found that Olney is not permitted to serve food or beer on the small deck off the taproom.

Buck says Olney’s lawsuit has disrupted the town, and that town officials had attempted to negotiate a resolution with Olney last year. “However, he refused to negotiate in good faith. His ‘negotiation’ was for the town to give him everything he wanted and he refused to budge,” says Buck. Olney’s father, Nate, who has been on the town board for more than 30 years, and is Deputy Supervisor, is not listed among the town officials supporting the statement released by Buck.

Last week Buck commented, “(Bender’s) decision fails to explain how a preemption issue can exist when the SLA itself confirmed, last June, that Seth Olney does not have a liquor license to sell or serve in the taproom or on the rear deck. That is why Seth Olney has been fined, twice, for a total of $9,000, as I understand it.”

Buck’s latest statement says:

“Here are the facts as we understand them: Seth Olney knew his property was in a Lake Residential District when he bought it. The zoning law in effect at the time, which Mr. Olney should have reviewed, did not permit taprooms/restaurants/bars in the LRD. It still does not. Seth Olney never applied to be a bar/restaurant/taproom. He applied for seating for 20 people and for additional merchandise display area. These are the facts supported by meeting minutes and the plans Mr. Olney submitted to the ZBA.

In 2015, after hearing complaints from at least two neighbors about the behavior of Olney Place patrons and Olney, town officials rescinded a 2013 Special Use Permit allowing tables and chairs on a deck outside the addition to the store. The town officials also said Olney misrepresented the planned use of the new room, applying for the Special Use Permit for additional seating and merchandise space. They say Olney decided to make the addition a taproom for serving beer after construction began, but he failed to communicate the change to the town.

Olney first received a license to sell beer as a grocery in 2008. In 2013 he applied for a license to serve beer as an eating place. That license was renewed in 2016 and expires in 2019.

Although Olney already had the license to sell and serve beer for consumption in the store’s deli and at picnic tables on a side lawn, he needed to alter the license to include the new taproom. The alteration process requires proof of local permits for approval by the SLA, but the town has not provided the documents.

Court documents filed by Buck on the town’s behalf include letters from the neighbors describing loud and rude behavior of patrons who trespass on private property. The filings include a number of photographs taken by neighbors, but those photographs, taken by unknown sources, cannot be verified by The Chronicle-Express.

One of the neighbors says the sheriff’s department has been contacted numerous times about boats tied up at the dock at 820 East Lake Road, property that had been seized by the U.S. Treasury Service and posted with a no trespassing sign. The neighbor says at least three other docks have been posted and property owners have upgraded security systems.

Buck says these neighbors are terrified of speaking up for fear of retaliation from Olney and his supporters. He has provided copies of facebook postings that he says are threatening to town officials, and he says a veiled death threat has been made in response to a recent letter from the town to people who have supported Olney.

The next Barrington Town Board meeting will be held at 7 p.m. June 28 in the town hall.