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February 5, 2010

Lewis Farm wins legal costs

State ordered to pay fees, expenses in APA dispute

By KIM SMITH DEDAM

RAY BROOK — Lewis Family Farm Inc. will recover legal fees and expenses from more than 16 months of litigation with the Adirondack Park Agency.

Acting Supreme Court Justice Richard B. Meyer issued the decision Wednesday under the Equal Access to Justice Act.

"The award of fees and expenses to a party prevailing against the state is mandatory 'unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust,'" Meyer wrote.

He ruled APA's failed claim to jurisdiction over farm-worker housing held no such special circumstance or justification.

'VICTORY FOR FARMERS'
John J. Privitera of McNamee, Lochner, Titus & Williams, P.C. in Albany, lawyer for the farm, said the decision correctly applies state law.

"This is a victory for the Lewis Farm, for farmers in the Champlain Valley and for small businesses throughout the state that are crushed by unjustified governmental action."

APA spokesman Keith McKeever said the "agency is disappointed in the decision" and is reviewing it.

PROVED EXEMPT
APA opened enforcement action in 2007 against the 1,100-acre Essex farm, owned by Salim B. "Sandy" and Barbara Lewis, claiming three farm-worker houses under construction then required APA permit review, even though the farm had building permits issued by the Town of Essex.

Privitera proceeded to prove that construction of the farm buildings is exempt from APA regulation under Right to Farm laws.

Lewis Family Farm prevailed because of "the clear and unambiguous language of the APA's statutory scheme, which excluded from APA jurisdiction any 'agricultural use structure,'" Meyer reiterated.

OVERSTEPPED
He suggested APA broke state law by overstepping its regulatory boundary.

"Both the APA's administrative determination and its defence [sic] in the underlying action were contrary to state statutes, and as such cannot be considered substantially justified."

Meyer said APA not only failed to consider "all applicable definitions" of single-family dwellings in its enforcement process but also "went beyond the clear and unambiguous statutory language in an effort to assert jurisdiction, impose a $50,000 civil penalty and, incredibly, require (Lewis Family Farm) to waive 'the right to challenge agency jurisdiction'" and its review clock.

COURT BATTLES
Representing APA, the State Attorney General's Office fell back to a September 2007 Supreme Court ruling made by Justice Kevin K. Ryan, which dismissed an initial challenge by the farm against APA as "not ripe" for court review.

The Lewises fought back in 2007 after APA levied a $10,000 penalty on the farm "as a prerequisite for APA review," Meyer said, adding his own italics for emphasis.

When formal enforcement proceedings came to a head in March 2008, APA tallied millions of dollars in penalties but fined the farm $50,000, which the court required the Lewises to place in escrow with Essex County for the duration of court proceedings.

Those funds were returned after the Lewis Family Farm won its case in Meyer's court the following November.

An APA appeal of Meyer's Supreme Court decision was dismissed July 16, 2009, in a unanimous decision by the Appellate Division.

The Attorney General's Office did not revisit the case.

HEARING ON FEES
In his ruling Wednesday, Meyer denied Lewis Family Farm recovery of fees dated to the 2007 case through the APA enforcement proceeding.

And he ordered a hearing to determine a reasonable rate for attorney fees in this district.

Lewis Family Farm itemized $208,770.06 for attorney fees from March 26, 2008, to Aug. 10, 2009, calculated at $300 per hour for lead counsel and $150 to $175 per hour for associate's fees, Meyer said.

The Attorney General's Office counterclaimed $87,829.95 worth of legal fees and expenses, which Meyer dismissed.

But the office submitted 2004 survey data to prove hourly attorney rates of $150 to $250 for counsel with five to nine years experience and $110 to $180 for lawyers with one to four years experience.

"The papers (the Attorney General's Office) submitted raise material issues of fact which cannot be resolved without further evidence," Meyer said.

The hearing is scheduled for 9 a.m. Feb. 26 in State Supreme Court in Essex County.

E-mail Kim Smith Dedam at: kdedam@pressrepublican.com

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