Who is at fault for Switzkill Farm expulsion?

Enterprise file photo — H. Rose Schneider

A plant is held up for observation by a botany group at a “Bioblitz” on Switzkill Farm in Berne last June. Several people at a town board meeting last Wednesday noted the events hosted at the town-owned property.

BERNE — The Berne Town Board is divided along party lines over the expulsion of two tenants who were told to leave the home they rented at the town-owned Switzkill Farm after the building inspector deemed their building unsafe.

For the first time in decades, Republicans in November made solid inroads to the town board, with Democrats maintaining their majority by just one vote.

The town of Berne had purchased the 350-acre Switzkill Farm three-and-a-half years ago from Buddhists who had established a center there 15 years ago. The purchase — the town spent $112,000 — was controversial and Republicans used it as a campaign issue this past November.

The property includes a large lodge rented out for meetings and celebratory occasions; a retreat house with seven rooms and two shared bathrooms where two Buddhists had leased rooms, and five unoccupied buildings, according to the chairman of the Switzkill Farm Board, Ted Kunker. Former town supervisor Kevin Crosier said that Switzkill Farm had broken almost even last year with revenues nearly totaling expenses. He said that revenues were around $9,000 with $4,800 in rent — tenants paid about $200 a month.

The current incident began when Supervisor Sean Lyons, Councilman Dennis Palow, and Highway Superintendent Randy Bashwinger — all Republicans — toured the property around Feb. 17. The supervisor asked Chance Townsend, who was appointed as the town’s building inspector on Jan. 1,  to inspect the property 10 days after the tour. Townsend found code violations such as broken fire alarms and a non-working sprinkler system and told the tenants around 4 p.m. that day that they could not stay overnight and would have to leave.

At its March 14 meeting, the board approved purchasing $1,273.28 in fire extinguishers for Switzkill Farm.

Townsend told The Enterprise following the meeting that his investigation was ongoing and that the tenants still could not stay overnight at the retreat house.

The town-appointed Switzkill Farm Board, which had known and worked with the tenants, was not told about the inspection or expulsion. When the farm board met on March 6, members expressed disappointment with the town as well as fondly recalling the tenants. At the town board meeting the next Wednesday, these members spoke directly to the town board about their concerns.

Richard Ronconi, a member of the Switzkill Farm Board, read a letter from the board’s chairman, Frank Kunker, expressing disappointment in the way the town had handled the situation at Switzkill Farm and asking why it had taken so much time for Lyons to reach Townsend after he toured the property.

Terry Schwendeman, another member of the Switzkill Farm Board, shared a letter signed by the entire board that it would like to be sent to the tenants “expressing our deep disappointment.”

“We hope that you can return to your home and be a part of our community … ,” she read. “We all embrace you and hope that you return home.”

The day after the meeting, Lyons wrote to the other town board members that the Switzkill Farm Board owed the tenants and anyone who used Switzkill Farm an apology for allowing them to be at risk in unsafe conditions.

William Keal, who had unsuccessfully run for clerk on the GOP line with Lyons and Palow this past fall, asked at the town board meeting if farm-board members would be available for questions. Each replied “no.” Keal runs the Facebook page “The Happenings in the Town of Berne NY,” which is known for supporting Republican candidates.

Emily Vincent, a member of the planning board, described meeting a family from New York City where she works as a nurse in an intensive care unit. (See related letter to the editor.) When Vincent mentioned she was from Berne, the family recognized the town because they had visited Switzkill Farm and had a memorable experience there, she said.

Roger Chrysler, who farms land on Switzkill Farm, noted that the property costs as much to run as any of the town parks.

Others defended Supervisor Lyons. Karl Nichols said he was glad that the supervisor had stepped in to address a safety issue.

“The town would have been in a hell of a mess,” he said.

Anne Margaret Oldick said that the supervisor, as well as Palow and Bashwinger, had taken the initiative to do this.

“Thank you for doing your jobs,” she said.

Tom Spargo, a former Supreme Court justice who was sentenced to federal prison almost a decade ago for extortion, said he also was concerned about the liability the town would face if a tenant or visitor were injured at Switzkill Farm. Spargo, who advised Berne GOP candidates in recent elections, noted that a Schenectady housing inspector had been charged due to a poor inspection.

“I want to commend anybody who was watching out for the town,” Spargo said.

The Schenectady inspector, Kenneth Tyree, had been charged with criminal negligence after inspecting a building and failing to notice the alarm system was not working. The building burned down the next day and four people died. A jury cleared Tyree of felony manslaughter charges.

Lyons and Palow respond

Palow said that he, Lyons, and Bashwinger had gone to the retreat house to inspect the roads there, find out who was plowing them, and do a walk-through of the lodge. He later told The Enterprise that he had been concerned about the plowing after visiting the property to snowshoe and hike. At Switzkill Farm, the three men asked one of the tenants, Nelson Kent, for a key, and Kent invited them into the retreat house for a tour, said Palow.

Palow said that Kent described the retreat house as not only having smoke alarms that kept going off, but also mold and rats. Palow also said that Kent told them that he had informed the town board and the Switzkill Farm Board of this. Palow said that carbon-monoxide detectors had been unplugged and that there was carbon monoxide found inside the retreat house, which he said Townsend fixed.

Palow said that the trio then went to the lodge and found the smoke detectors there going off as well; they visited the farm houses, and saw that the equipment stored inside of them was unsecure. Palow later told The Enterprise that a county health inspector, who could not be reached for comment, visited and confirmed that the sprinkler system either had to be working at all times or be removed.

“I know everybody likes Switzkill Farm … ,” said Palow. “But that retreat house was unsafe for people to live in.”

Kent told The Enterprise on Friday that there is mold in the retreat house basement and that he has seen rats there. He said he had not been aware of carbon monoxide being present there. Kent also said that he had spoken with Townsend about these issues before.

“He’s been through the building numerous times,” he said of the building inspector.

Councilwoman Karen Schimmer — one of three Democrats on the board — told Palow that the concern had been over the town board not being informed about the inspection.

“He’s the supervisor; he can walk into any place he wants,” said Palow.

“I don’t think that’s right,” said Councilman Joel Willsey, another Democrat; the third Democrat is Councilwoman Dawn Jordan.

Willsey, by himself, toured the transfer station, which he had designed, and emailed concerns he and a worker had. Palow asked, at the meeting, why he had not been told about the tour.  Schimmer responded that Willsey had informed the supervisor and the board, but Palow said he had not been informed.

Palow then said that the issue with the town board is that it is divided “because it’s three against two,” he said.

Palow also asked why the board was to vote last month without any notice on approving Jason Preisner, an engineer who volunteers to help the town, to manage the bids to repair the lodge’s roof. Schimmer said that last year this had been discussed and his visit was only an update. Palow later told The Enterprise that he voted “yes” on approving the project proposed by Schimmer because he saw the roof repairs as a safety issue.

Lyons said that, following his tour of Switzkill Farm, he called the town’s insurance carrier about the issues found there and was told that the carrier would get back to him. While waiting for an answer, Lyons said that he looked over the Occupational Safety and Health Administration and Public Employee Safety and Health Bureau laws and discovered that there could be serious code violations and risks. The supervisor then sent Townsend to do an investigation and said that he was later told by Townsend that he had issued an order to vacate.

“I didn’t even know that he was going to do that,” said Lyons. “I said, ‘Chance, this is too much for me to understand. Can you please send me a report so I can inform the board?’ I did not get that phone call until it got out on social media somehow.”

Willsey credited Lyons with apologizing via email when the board said he was being disrespectful. But Willsey added that he was subsequently “attacked” by Palow and told, “He’s not going to tolerate my disrespect anymore.”

“Now, what does that mean, Dennis?” asked Willsey. “What are you going to do different now?”

“What am I ‘going to do different’?” asked Palow.

“Yeah, you’re not going to tolerate my disrespect anymore,” said Willsey.

“I’m not going to tolerate it,” said Palow.

“And what do you plan to do about it?” continued Willsey.

“You’ll find out,” said Palow.

“We have to move on,” said Lyons, as murmurs came from the audience and the rest of the board dissolved into crosstalk.

Councilwoman Schimmer and Jordan, both Democrats, countered the notion that the Switzkill Farm Board had known about issues and hadn’t reacted to them. Jordan said that she and Schimmer had been at the retreat house this summer and had not heard any smoke alarms going off. Schimmer also said that the sprinklers were never turned on at all.

“Nelson Kent may have said that the Switzkill Farm Board knew about it,” said Schimmer, explaining that the land committee from the Switzkill Farm Board had inspected the property.

“They identified issues that needed to be addressed. They were presented; I even know Anita had ordered fire extinguishers … ,” said Schimmer of the town clerk, Anita Clayton. “So it’s not quite the way it’s been presented here.”

Schimmer also said that she had heard that one of the tenants had heard Lyons, Palow, and Bashwinger laughing during their visit when they entered a Buddhist worship area.

“It was felt that it was disrespectful,” she said. Palow later told The Enterprise that he did not recall this.

In emails forwarded by Palow to The Enterprise on Monday, Lyons discussed the inspection that took place at Switzkill Farm and what had been done to remedy the code violations. On Feb. 28, Lyons said that the retreat house and lodge had new fire extinguishers installed; most of the original fire extinguishers were over 12 years old, he said in the email, or improperly mounted, incorrect for conditions, or just missing. He also said a defective smoke alarm was heard “chirping” and that smoke and carbon-dioxide detectors were unplugged, hanging from their outlets, or missing.

Lyons wrote in the email that monthly inspections would be implemented at all town buildings and smoke and carbon-monoxide detectors would be inspected each quarter, and that training programs would be given to town employees on these types of inspections.

After the March 14 meeting, Townsend emailed an update to the town board. Townsend noted that, while searching through files on Switzkill Farm, he found only a certificate of occupancy for businesses and not for residential use. It is not clear that a certificate of occupancy would be required unless the buildings had undergone construction or renovation. Towns issue certificates of occupancy.

Townsend also wrote that the public water-supply permit; sanitation permit, and state pollutant discharge elimination system permit, known as SPEDES, had expired. He wrote that the health department verified this.

Albany County spokeswoman Mary Rozak told The Enterprise in an email on Wednesday that there is currently no temporary residency permit, which would allow Switzkill Farm to operate like a hotel, issued for the property. The town charges $30 a night to stay at Switzkill Farm, and anticipates charging visitors to stay at a cabin or campsite by sometime this year, according to the fee schedule.

Townsend also wrote in the email that the town attorney suggested that Berne might be able to partly cover expenses incurred by the tenants after they had been ousted from their home. Townsend noted in the email that he had worked 12 hours in one day despite being a part-time building inspector.

Palow told The Enterprise that he, Townsend, Preisner, and a health inspector met last Wednesday, the day of the town board meeting, to discuss the retreat house. Palow said that the health inspector said that the property had had a temporary permit for occupancy when it was a Buddhist retreat center, but that the town hadn’t applied for a new certificate of occupancy after purchasing the property and that there hadn’t been an inspection there since 2005. The inspector, Barry Peck of the Albany County Department of Health, did not return a call on Wednesday for comment.

Palow also said that the sewage system didn’t have the capacity to handle big events that are sometimes hosted at the lodge, and that equipment stored in the farmhouses was uninsured.

Another email from Lyons on March 7 has him discussing what he had stated to The Enterprise regarding Switzkill Farm, and asking the rest of the town board to not comment on the matter until Townsend had produced a report on the inspection.

Crosier told The Enterprise, when asked about the property’s certificate of occupancy after it was purchased, that a certificate of occupancy doesn’t have to be renewed when a building is bought.

Corrected on March 27, 2018: A quotation from Joel Willsey saying he had found nothing wrong at the transfer station was removed since that quote applied to another topic.

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