SOUTHPORT, N.Y. (WETM) – A New York State Supreme Court judge ruled a discrimination lawsuit against the town of Southport will move forward, after the town asked the court to throw it out. The lawsuit was filed by Charles Todd and Glenn Miller, co-owners of Chamberlain Acres Garden Center and Florist. The plaintiffs say Town of Southport officials refused to approve a permit to construct improvements to their business because they are gay men.

Judge Christopher P. Baker rejected a motion filed by the town of Southport to dismiss the lawsuit. Judge Baker also ruled the Southport Planning Board should be added to the litigation. The Southport Town Board was already named in the lawsuit.

“You know, it’s still really emotional because, like I said, for the first three years, it’s been me trying to explain and run my mouth and having friends and family go oh, you know, is this ever going to end?” Charlie Todd told 18 news reporter Nicolas Dubina. “So finally, to really have the very first person after three years to stand up and actually say something regarding the case is, how do you describe it, I mean, I just want answers.”

According to the complaint, in November of 2019, Mr. Todd and Mr. Miller started preparations to build a 60 x 80-foot pole barn next to an existing greenhouse on the property. The property has belonged to Mr. Todd’s family since 1895. He opened Chamberlain Acres with his partner Glenn Miller in 2007. They have operated a farmer’s market on the property without any issues since 2016, which is the only year-round farmers market in Chemung County.

The plaintiffs wanted to improve their farmers market by adding a new bathroom to replace a temporary toilet, as well as laying down new sewage, electrical, and gas lines. The project also included plans for a commercial kitchen so farmers could prepare jams and jellies. The improvements would also allow Mr. Todd and Mr. Miller to grow more of the plants they sell at their garden center.

The plaintiffs say they first approached Town of Southport code enforcement officer Peter Rocchi about the proposed project. According to the lawsuit, Mr. Rocchi allegedly told Mr. Todd and Mr. Miller the project would be approved. Mr. Rocchi allegedly said the project would fit within the property’s classification as a commercial zone. Mr. Todd and Mr. Miller then obtained a $125,000 loan to pay for the project. Mr. Rocchi told the plaintiffs to file paperwork, a plan with lot measurements, and a basic sketch. The plaintiffs say they were led to believe this was basically a formality.

Two days after the forms were filed on February 17th, 2020, the plaintiffs say they were surprised to hear Mr. Rocchi say a new code for an “event center” would have to be written to accommodate the project. The plaintiffs say they occasionally held events at Chamberlain Acres, including the Town Supervisor’s wedding, but never requested to become an event center. The plaintiffs say Mr. Rocchi told them they would have to resubmit their application as an “event center” because it was the only way that Chamberlain Acres would be approved for the permit.

“I voiced the opinion that the town supervisor had used our property for exactly what we now were being singled out to be different, and I had concerns about that.” said Todd. “But I was basically told that there was no way they were going to approve my project without us now becoming an event center.”

After posting about their plans to build the pole barn on social media, the plaintiffs say they were “explicitly threatened” by town officials to stop speaking publicly about the project again, or the town would shut down their farmers market.

“We wanted to thank Chemung Canal for having the faith in our business and approving us for a loan to improve our business after all these years.” said Todd. “So, you know, our first initial reaction was just happy and we felt that our customer base would like to know.”

“The town had decided that if I was going to talk publicly about my project, they would shut our existing farmers market down which had been running for three years because they had decided when they allowed us to do the farmers market, the words “flea market” was in there instead of farmers market.” said Todd.  “So if we were going to talk publicly about our project, it was going to take at least till May for them to change that word to farmers market in our commercial code.”

Mr. Todd and Mr. Miller say they waited nearly 9 months for town officials to write the new “event center” code. They say when officials finally presented the code, they were surprised to learn it was very restrictive and did not make any sense for a Garden Center & Farmer’s Market, to the point their existing business model would not be able to operate. The plaintiffs say Dan Hurley, the owner of Bradley Farms, informed them the new code had actually been written three years ago for a rodeo. In the lawsuit, the plaintiffs say “All they did was change the name from rodeo to event center without changing any of the restrictions tailored for a rodeo facility.” The plaintiffs say there was “obviously no need to delay writing a code for an event center if they were just going to use a previously written code for a rodeo facility.”

Mr. Todd described Dan Hurley as his direct competitor. Mr. Hurley also sits on the Town of Southport board. The plaintiffs say they want to know why Mr. Hurley was allowed to open “very high traffic businesses” including weddings, a Halloween venue that included hay rides and paintball, holiday light displays, and camping, without having to face the same code restrictions as Chamberlain Acres.

The plaintiffs also point out the Chemung County Planning Board approved their project on March 26, 2020.

The lawsuit states “it is clear that Chamberlain Acres has been treated differently from all other businesses within the Town, and the refusal to treat Chamberlain Acres in the same manner as all other businesses is due to the plaintiff’s sexual orientation. Therefore, the Plaintiffs have been illegally and unconstitutionally discriminated against.”

18 news reporter Nicolas Dubina contacted town officials involved in the case.

Town supervisor Joe Roman said quote: “The Town is not able to provide an interview or comment at this time due to current litigation.”

Deputy Town Supervisor Kathy Szerszen said, “Due to the current litigation, I am unable to comment.”

Code enforcement officer Peter Rocchi said, “I am not allowed to talk with the media on this subject.”

We also reached out to Town of Southport attorney Leslie Connolly. As of this writing, we have not heard back.