APA rules against Lewis Family Farm in Essex

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March 28, 2008

Ordered to pay $50,000 for violations

By KIM SMITH DEDAM The Press Republican Fri Mar 28, 2008, 12:00 AM EDT

RAY BROOK -- The Adirondack Park Agency Enforcement Committee has ruled against the Lewis Family Farm and issued permit violations on two partially constructed farm-worker houses.

In its 13-page decision, the APA fined the farm, owned jointly by Salim B. "Sandy" and Barbara Lewis, a penalty of $50,000, to be paid by April 28.

The APA also said the farmers could not occupy or let employees live in the buildings until after-the-fact APA permits are in place.

The APA demanded the Lewis Family Farm submit a "detailed description of the use of each dwelling and connection to the Lewis Farm agricultural operations," along with an "as-built" plan for the septic systems.

Mr. Lewis said they will appeal the APA decision.

AGRICULTURE STATUS

The modular houses, valued at close to $300,000 apiece, were erected over the past year to provide farm-worker housing. They are on Whallons Bay Road in Essex, about 100 yards from the hamlet boundary line in Whallonsburg.

The Lewis Family Farm obtained building permits from the Town of Essex before construction began, and Mrs. Lewis said she understood at the time from the town zoning officer that no APA permits were required for agricultural buildings.

Once foundations were dug and concerns raised, she contacted the APA and was told by staff that APA permits were needed to build "single-family dwellings."

The Lewis Family Farm maintains that, by definition, farm-worker houses are "agricultural structures."

Mrs. Lewis said in an affidavit that they have torn down and removed some 15 run-down and derelict houses and built 15 agricultural structures on the 1,200-acre farm in the past 20 years without APA permits.

LAWSUIT REJECTED

The farmers claim APA does not have jurisdiction over "agricultural structures" and brought the matter to Essex County Supreme Court last summer, where Judge Kevin K. Ryan dismissed the lawsuit, claiming it was "not ripe for judicial intervention" until enforcement action was taken.

The APA issued a cease-and-desist order on construction of the farm-worker houses after the court case started.

Based on legal advice, the Lewises continued to build.

The modular houses, now enclosed with four walls and a roof, remain unfinished since construction stopped in February.

DEVELOPMENT POTENTIAL

The case went before the Enforcement Committee March 13, with staff attorney Paul Van Cott presenting a case for APA jurisdiction.

He argued the farm buildings are single-family dwellings being built on Resource Management lands.

Van Cott said the potential for development necessitates permitting to monitor density should the land-use change in the future.

The land is in active agricultural use as an organic feed and cattle farm.

JURISDICTION ARGUED

Attorney John J. Privitera of McNamee, Lochner, Titus & Williams, P.C., in Albany, who is representing the Lewis Family Farm, presented a detailed reading of law arguing the buildings are "agricultural use structures" and therefore non-jurisdictional by APA under New York state right-to-farm legislation.

Privitera also said Article 14 laws protect the Lewises' right to farm.

LEWIS REACTION

Contacted by phone Thursday, Mr. Lewis said he and his wife had not seen the decision.

"I'm traveling, she's traveling, and we are in different places."

Mr. Lewis said all of the nearly 15 farmers who attended the enforcement hearing were struck by one common thought.

"They all came up to us afterward to say the APA Board had not read our briefs. That is an astonishing fact; every one of them reached the same conclusion.

"We can leave (the Adirondack Park), but the people of the North Country, they can't leave. But their children do. It's clear the APA is trying to destroy the North Country."

FARM BUREAU CRITICAL

Peter Gregg, a spokesman for the New York Farm Bureau, said they are extremely disappointed in the APA decision.

"We feel it's ridiculous their fining the farm $50,000. They, in essence, ignored the opinion of the state agricultural commissioner and instead created their own definition of what constitutes a farm building.

"State (Agriculture and Markets) Commissioner Patrick Hooker said these (Lewis Farm houses) are clearly agricultural structures for farm-worker housing. But APA apparently feels they know more about agriculture than the state agricultural commissioner."

Hooker had submitted a letter to the APA with legal instruction showing circumstances where farm-worker housing is considered an agricultural building.

APPEAL

The definition may be vetted in court.

"The agency (APA) insists on denigrating our Constitution and is hell-bent on regulating farms even though New York is a right-to-farm state," Privitera said Thursday.

"I trust that the Lewises will seek redress in our courts."

kdedam@pressrepublican.com