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April 24, 2008

APA changes enforcement order against Lewis Family Farm

Now allows Lewis family to contest jurisdiction

By KIM SMITH DEDAM

ELIZABETHTOWN -- The Adirondack Park Agency has changed its enforcement order against the Lewis Family Farm.

The revision arrived in the hours between a series of lawsuits brought against the Lewis farm by Attorney General Andrew Cuomo's office in an increasingly complex set of legal maneuvers.

The original APA enforcement order required the farm, owned by Salim B. "Sandy" and Barbara Lewis, to "forego the right to challenge agency jurisdiction."

But that sentence has now been stricken from the original decision, made in late March.

A revised APA enforcement order was filed in Essex County Court recently, with a letter that states the paragraph "never intended to prevent legal challenge to the agency's determination, including jurisdiction or any other question of law, and has been stricken to ensure clarity in that regard."

The letter was signed by APA Chairman Curtis Stiles and Enforcement Committee Chairman Cecil Wray.

The jurisdictional dispute stems from a cluster of farmworker housing units built by the Lewises in the past year.

They maintain that construction of housing on their farmland does not require APA permits because they are "agricultural use" structures under State Agriculture and Markets law.

But in enforcement proceedings, APA ruled two of the houses are under Adirondack Park Agency Act jurisdiction as "single-family dwellings" built on Resource Management land. The third is a replacement structure for a house that was removed.

Even as the enforcement action changed, Cuomo's office filed a lawsuit on behalf of APA restating the enforcement orders.

On the same day, Acting Supreme Court Judge Richard Meyer heard motions to stay the APA orders, filed in an Article 78 brought by Lewis Family Farm attorney John J. Privitera.

The legal papers apparently crossed paths at the court door.

Meyer granted stays in five of seven requests halting APA enforcement action against Lewis Family Farm, not including the order to pay a $50,000 fine.

JUDGE SHOPPING'

Four days later, Cuomo's office requested the case be moved from Meyer's bench to Judge Kevin K. Ryan, claiming Ryan had begun hearing Lewis Farm matters last August, which he dismissed at the time as "not ripe" for review.

The request to transfer judges was made by Assistant Attorney General Robert C. Glennon, based in Plattsburgh, a previous executive director for the APA, and Assistant Attorney General Loretta Simon in Albany.

In arguments filed Wednesday, Privitera called the motion to change courts "judge shopping."

"The only possible reason that the agency (attorney general) could have for fighting so vehemently to transfer these procedurally infant actions to Justice Ryan is that it is displeased with the fact that the Lewis Family Farm was sent to Justice Meyer with its order to show cause after Justice Dawson recused himself, and it is further displeased with the stay issued by this court on April 11, 2008 (Hon. Richard B. Meyer). Accordingly, this cross-motion to transfer is unmistakably a judge-shopping effort that must be thwarted."

ABUSE OF PROCESS

Privitera also said APA's change in enforcement order is an abuse of process.

"The agency is slapping the face of justice and abusing process by attempting to alter a final determination that was stayed by order of this court and remains under review in this Article 78 proceeding."

Privitera asked the courts to deem the revised order "null and void."

Privitera has requested the court consolidate claims as the matter moves forward. He has also asked to reargue and renew a stay of APA orders.

The Attorney General's Office has not return repeated Press-Republican telephone calls for comment on the case.

kdedam@pressrepublican.com

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