|
RCBJ-Audible (Listen For Free)
 |
Judge D’Alessio Sets Bond For Plaintiffs At Paltry $100; Essentially Admonishing Cidery For Operating Illegally
By Tina Traster
When angry neighbors secured a temporary injunction to shut down Rockland Cider Works, the victory came with a caveat: the neighbors had to post a bond equal to the potential losses the business would incur if the cidery ultimately won the case.
Rockland Cider Works had requested the plaintiffs post a $3.3 million bond to cover $500,000 in lost revenue for the next two years, $400,000 to relocate the cidery to Gilboa, and other expenses. They also told the Judge they’d have to sell the Van Houten family farm to the highest bidder if “they had a complete halt of operations and a loss of income and jobs.”
Rockland County Supreme Court Judge Christie D’Alessio was not moved. In a ruling this week, the judge set the bond at $100, essentially saying the cidery has been operating without permits or authority and implying that they had little hope of prevailing in the end.
“Based on those prior factual findings that the RCW was operating the cidery business without proper permits or authority, this court finds that the nominal undertaking obligation is sufficient under the circumstances presented in this case.”
Last July, thirteen plaintiffs, which include Susan McWhinney and Gerard Goggin, who live on an adjoining property to the Van Houten Farm at 68 Sickletown Road in Orangeburg, filed a lawsuit 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.
Rockland Cider Works has run a state-licensed Farm-Winery on about seven acres of its family farm since the fall of 2019.
D’Alessio also noted in her decision that the New York State Liquor Authority is seeking to revoke the cidery’s farm winery license “on the grounds that they’ve failed to conform with all applicable codes and regulations.”
The plaintiffs claim 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.
In January, Rockland County Supreme Court Judge Thomas Zugibe essentially ordered the cidery shut down.
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 2021, Orangetown denied the cidery’s request for a building permit and issued stop work orders. At that time, and under the Town Code and New York law, the cidery needed to appeal to the Zoning Board of Appeals (ZBA) to reverse the decision or seek a variance to operate a business that does not conform to the code. Instead, the cidery took the Town to court (in a different case) and secured a temporary injunction allowing it to continue operating while litigation was pending. Essentially, the Cidery wanted to court to decide the legality of its operation instead of the ZBA.
In January, Zugibe rebuffed the cidery’s efforts to skirt Orangetown’s Zoning Board of Appeals. The issue of whether the Van Houten Farm was legally zoned for a cidery was never reached in the Court. Instead, the Court dismissed the case.
Rockland County Supreme Court Justice Thomas Zugibe 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.
Prior to filing its complaint with the court, the cidery submitted two separate zoning petitions to the Town Board for zoning amendments that would have allowed it to operate in the R-40 residential zone which were never acted upon.
Bleakley Platt’s Lino Sciarretta, counsel for the cidery said, “We disagree with the decision and plan to exercise our rights on appeal; the court did not resolve the crux of the issue – namely, that the cidery is a permitted commercial agricultural operation.”
The Cidery has appealed Zugibe’s decision.
In the meantime, the Town of Orangetown, at the cidery’s expense, has hired Laberge Group, a planning consultant that worked with the town on the dissolution of South Nyack.
“The Laberge Group was retained by the town, with the cost to be paid by Rockland Cider works, to review the petition for a zone change that was filed by Rockland Cider Works and to make recommendations to the Town Board with regard to any potential zone change,” said Town Supervisor Teresa Kenny. “The report has, to my knowledge, not been completed yet.”
Don Feerick of Feerick, Nugent & MacCartney, counsel for the plaintiffs, said, “RCW’s obligation to pay for the Planning Consultant is a payment in furtherance of its own interests, because without making the payment the Town Board would readily be within its rights to deny the application.”
Feerick said he “has no idea if the opinion will be professional and impartial or something else. It has yet to be shown to us.”
But the attorney also emphasized the plaintiffs will continue to object to any town effort to legalize the cidery’s operation.
