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Plaintiffs In Case Must Post Bond While Lawsuit Continues To Wend Through The Judicial Process
By Tina Traster
The latest legal ruling in the case against Rockland Cider Works may deliver a final fatal blow. Rockland County Supreme Court Judge Thomas Zugibe has essentially ordered the cidery shut down, though angry neighbors who initiated the suit must still prove their case that the cidery’s operations are an illegal nuisance that devalues their property.
Additionally, the thirteen plaintiffs, which include neighbors Susan McWhinney and Gerard Goggin, who live on an adjoining property to the Van Houten Farm at 68 Sickletown Road in Orangeburg, are required to post a yet-to-be determined bond that would guarantee the cidery compensation if its case were to ultimately prevail.
The suit claims that residents have requested relief from the town since March of 2021. They maintain the town has failed to enforce its own codes.
Rockland Cider Works has run a state-licensed Farm-Winery on about seven acres of its family farm since the fall of 2019.
“The amount of the undertaking must not be based upon speculation and must be rationally related to the amount of potential damages which the defendant might suffer if it is later determined that the injunction was unwarranted,” wrote Judge Thomas Zugibe, in a ruling issued late last week. A Jan. 25 hearing is set to determine the bond amount.
The labyrinthine case has not only pitted a group of neighbors against a commercial enterprise; it has also spotlighted the Town of Orangetown’s unwillingness to take decisive action on a business that it determined was not properly zoned.
In issuing his opinion, the judge said Rockland Cider Works is not compliant within the town’s codes, and he believed the plaintiffs demonstrated that the business’s bar and restaurant has diminished their property values and interfered with their quality of life.
The Judge partially rendered a decision based on affidavits from Real Estate Appraiser Sal Mazella who said that the “non-residential commercial use of the property has negatively impacted the fair market property value of the single-family residences” of the neighbors.
He cites loud music, noise, odors, and parking and traffic safety issues as the key factors.
In response to neighbors’ complaints and the pending litigation, Van Houten last August told RCBJ that the cidery had suspended live bands and has cleared space aside the garden center to accommodate 120 cars.
Last July, the plaintiffs filed a lawsuit in Rockland County Supreme Court against Rockland Cider Works, the company’s landlord the Van Houten Farm Market Benefit Trust, the Town of Orangetown, and the New York State Liquor Authority hoping to shut down the farm cidery.
The plaintiffs have alleged the cidery is violating the town’s zoning and building codes, creating a nuisance, and degrading neighboring property values. The suit sought a temporary and permanent injunction against its continued operation.
The suit claims that residents have requested relief from the town since March of 2021. They maintain the town has failed to enforce its own codes. In filing this lawsuit, the group of residents are relying on a little-used law that allows citizens to bring a suit when they claim the town is failing to enforce its zoning and building codes. The law requires at least three taxpayers to reside in the zoning district where the offending property is located.
At issue is whether the cidery is properly zoned for the commercial operation it is running. The town says the site is not compliant for food and bar service while attorneys representing Rockland Cider Works maintain the zoning laws are “ambiguous,” and that the ambiguity should favor the cidery. In a lawsuit filed in court last January, attorney Lino Sciarretta argued the cidery is allowed as “a commercial agricultural use” even though “cideries” are not specifically listed in the zoning code.
In 2021, Orangetown denied the cidery’s request for a building permit and issued stop work orders. At that time, the cidery needed to appeal to the Zoning Board of Appeals (ZBA) to reverse the decision or a seek variance to operate a business that does not conform to the code.
Last January, the cidery took the Town to court and secured a temporary injunction allowing it to continue operating while litigation was pending.
But last week, things took a turn for the worse for the cidery when a court decision rebuffed the cidery’s efforts to skirt Orangetown’s Zoning Board of Appeals to determine the legality of its use.
Zugibe, the judge hearing both related cases, in his order wrote, the cidery “failed to exhaust their administrative remedies since they did not appeal to the ZBA the determination of the OBZPAE that the cidery operation is not a permitted use under the Town Code.” In essence, the judge said that Rockland Cider Works missed a step and needed to go to the Zoning Board before coming to court. He dismissed the case, leaving the cidery in limbo.
The cidery is the brainchild of Darin and Elisabeth Van Houten, who began to establish a hard cider distillery with bar service and music to supplement the family’s nursery business, which has long been in decline, they say. The couple envisioned a cidery – the kind of attraction that has helped boost tourism in upstate communities – as a strategic update to a nursery and garden center that had been around for nearly 50 years but had been losing customers to big boxes that undercut independent and local businesses. According to the New York State Cider Association, New York has more than 125 hard cider producers.
The new attraction gained traction, becoming a desirable refuge six months later at the height of the pandemic because it gave people a space to gather safely outdoors with friends, kids, dogs, and to listen to live bands in the garden outfitted with socially distanced tables for pandemic safety protocols. It seemed like a win for the business and the community except it became a noise and traffic nuisance to neighbors who began complaining about cars lining up and parking on the road, the din of activity, occasional lewd behavior, the presence of food trucks and a change of use that they say was altering the rural character of the neighborhood.