Provided photo A judge has ordered the developer behind a partially constructed restaurant and event space on the shores of Conesus Lake in the spot once occupied by the Conesus Inn to tear the structure down by no later than June 30, 2021.

CONESUS – A judge has ordered the developer behind a partially constructed restaurant and event space on the shores of Conesus Lake to tear the structure down.

In a scathing Dec. 23 decision, Judge John J. Ark ordered Carl Myers Enterprises to remove the entire steel-framed structure at 5654 East Lake Rd. where the Conesus Inn once stood by no later than June 30, 2021. He also took developers to task for what he characterized as their “willful efforts to subvert enforcement of law” and the “intentional subterfuge” they displayed in their attempts to push the project through without full review.

Thomas Bruckel, who along with his wife, Patricia, and neighbors, Sally Hirth and Robert Siracusa, first challenged the legality of the structure Ark ordered removed, said Wednesday he was happy with the judge’s decision, which he said was “a long time coming.”

“It’s exactly what we’ve been saying from the very beginning,” said Bruckel, who lives to the immediate south of the structure. “It’s pretty simple. They didn’t get the appropriate approvals, not even close. It’s an illegally constructed building and that’s what the judge held.”

John Hooker, who’s identified in Ark’s order as vice president of Carl Myers Enterprises, said Wednesday that hadn’t yet read the order and declined to comment until he did so.

Conesus Town Supervisor Don Wester, who was elected in 2019, years after legal challenges to the structure were first filed, likewise declined to comment Wednesday and said he wanted to review the order with the town’s attorney before making any public statements.

Myers, Hirth and Siracusa could not be reached for comment Wednesday.

A 4-1/2 year battle

Ark’s order is the latest development in a long simmering dispute that dates back to June 2016, when the Bruckels and Sally Hirth and Robert Siracusa, their neighbors to the north, noticed that the structure being built next door was far larger than the one that had been approved by the town of Conesus.

According to the chronology laid out in Ark’s decision, Conesus’s Zoning Board of Appeals granted a conditional use permit in December 2014 to Carl Myers Enterprises – referred to in the order as CME – to “enable the Conesus Inn to be renovated and expanded.” In January 2015, the Conesus Planning Board granted final site plan approval for CME’s renovation of the existing Conesus Inn structure.

“During the approval process, CME repeatedly characterized the renovation project as just that: renovation, with specific and discrete expansions to small areas,” Ark wrote.

After gaining site plan approvals for renovation of the existing Conesus Inn building, CME changed its plans.

“CME then made the unilateral decision to abandon the renovation project and undertake the new project to demolish the original building and build a new building from the ground up,” Ark wrote. “At no point did CME submit plans for the new project to the planing board or ZBA (zoning board of appeals) for approval.”

Instead, CME limited its official interactions with the town of Conesus in the run up to its demolition of the existing Conesus Inn structure to its code enforcement officer at the time, Keith English. According to Ark, English granted CME a permit to demolish the old building in April 2015. In July 2015, he issued a building permit for the new, much larger structure. The building permit English issued pre-dated the site plans CME ultimately used to construct the much larger structure.

According to Ark, English testified that he did not plan to enforce the conditions placed on CME’s purported renovation project by Conesus’s Zoning Board of Appeals “because he disagreed with them.”

English also failed to refer CME’s new project to Conesus’s Zoning Board of Appeals and Planning Board in violation of town zoning code.

Ark acknowledged it may have been CME’s intention “all along” to abandon its purported renovation project in favor of demolishing the Conesus Inn building to construct a new, much larger structure.

Ark said notes produced under subpoena by David Matthews, who served for a time as CME’s architect for the project, show Hooker, CME’s vice president, stressed the importance of getting Conesus’s two boards to sign off on the project and then asking for amendments to the approved plans. The architect’s subpoenaed notes also indicate Carl Myers himself instructed Matthews not to provide English with “any more than he needs to see.”

After realizing the steel building being constructed was not what had been approved by the town’s planning board, the Bruckels, Hirth and Siracusa contacted Carl Myers, who “refused to cease development of the new project and conform to the boards’ approvals.”

Myers’ unwillingness to engage was a common theme in subsequent legal proceedings, said Bruckel.

“The judge all along wanted us to compromise,” Bruckel said. “We absolutely made every attempt and got absolutely nothing from the other side.”

In July 2016, Ark issued a temporary restraining order forbidding any further construction at the site. In August of that year, he referred the matter to Conesus’s Planning Board and Zoning Board of Appeals so the two bodies could review the new site plans which were never presented to them.

That same month, CME brought the new plans before the planning board, which refused to allow the Bruckels and their neighbors to offer any comments. The board ultimately voted to approve the new plans but in his decision, Ark said two board members subsequently wrote to him and said they were not shown the full plans for the new structure and were not permitted to discuss the increased square footage of the building.

According to Ark, the two board members, who were not named, observed that “the entire character of the lake would be adversely affected by the new building and we believe it true that the current size is not what anyone in the town expected it to be.”

Ark’s order makes null and void the planning board’s decision to approve the new site plan on the grounds that the board “acted unlawfully when the new project was not made subject to full site plan review.”

The order also invalidates the 2015 building permit for the larger structure which Ark said was unlawfully issued by English.

“It should also be pointed out that CME is not the victim of municipal negligence here, as the notes of Architect Matthews, produced under subpoena in this case, demonstrate that it was in fact CME’s intent to avoid having to resubmit their plans, no doubt because CME realized that the new project was much less likely to receive the necessary approvals than the renovation project,” Ark wrote. “...CME should not be allowed to take advantage of its willful efforts to subvert enforcement of the law.”

Ark also stated in his decision that the Bruckels, Hirth and Siracusa are entitled to financial damages as a result their “temporary loss of full enjoyment of their properties by virtue of CME’s violation” Conesus’s zoning code. The amount of the damages will be determined at a future trial.

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