BERNE — Tensions around Berne’s controversial Switzkill Farm property are being stoked once again as the town seeks to get the 350-acre property appraised, its first step toward putting it up for sale. 

Getting rid of the conservation easement protecting the property from development doesn’t seem like an option, according to the director of the conservancy that holds the easement on Switzkill Farm.

And selling the land, even with an easement, is likely to be difficult because of state regulations protecting municipal parkland.

Republican Councilman Leo Vane Jr. made the motion to appraise the property at the town board’s May 12 meeting, and it passed, 3-to-2, with council members Joel Willsey, the board’s lone Democrat, and Bonnie Conklin, a Conservative who ran on the GOP line, voting against it. 

Vane had initially made a motion to put the property on the market, which was seconded by The Republican deputy supervisor, Dennis Palow, but the town’s attorney, Javid Afzali, advised that the town needed to get an appraisal first. 

“We’ll just feel our way through this,” Willsey said sarcastically as the board sorted out the language of the appraisal motion. 

Supervisor Sean Lyons, a Republican, declined to answer Enterprise questions about Switzkill Farm, saying that he wants to “be sure all proper notifications and procedures are complete.”

At the same meeting, the board voted to break its contract with the farm’s sole tenant, Nelson Kent, who had also served as a caretaker, citing change in use. The vote was similar to that of the appraisal motion, with Willsey voting against it and Conklin abstaining.

Kent, a Buddhist, and another Buddhist tenant, had been evicted in 2018 with two hours’ notice in the dead of winter by Code Enforcement Officer Chance Towsned because of faulty sprinklers and fire alarms.

Kent had lived on the property since before its purchase by the town, when it was owned by the Tenzin Gyatso Institute, a Buddhist organization. 

This attempt to divest the town of a property that was acquired with outside funding in 2014 follows a failed lawsuit, initiated last year by Berne residents, including former state Supreme Court Justice Thomas Spargo, that tried to nullify both the purchase of the property and the conservation easement that limits development on the land.

The residents eventually dropped the suit under unclear circumstances.

Town ownership of Switzkill Farm has been controversial with residents from the jump, and has become a central campaign issue for Republicans and Republican-backed candidates, who feel that upkeep of the property is too expensive for what they view as limited benefits to the town. 

Some are also upset about the relative quickness of the purchase. The town supervisor at the time, Kevin Crosier, a Democrat, said the speed was necessary given the massive third-party financial support for the purchase by the Open Space Institute and the Albany County Capital Resource Corporation, which together contributed all but $127,500 to the purchase price of $475,000. 

That funding was time-limited. Altogether, the town paid $142,700 to acquire the property, after fees. It’s not clear at this point if, in the event of the sale, the money granted by those parties would need to be paid back. 

Defenders of the property argue that it holds cultural and natural value, and can become self-sufficient, if not profitable, through rental for private events, such as weddings. 

Parkland alienation

Selling the property is apt to be extremely difficult, if possible at all, given the regulations around parkland. If the town decides it wants to sell, it will likely have to follow the parkland alienation process, which encompasses any change in use to park properties. 

“Parkland alienation occurs when a municipality wishes to convey, sell, or lease municipal parkland or discontinue its use as a park,” according to a guidebook composed by the New York State Office of Parks, Recreation, and Historic Preservation. “Parkland alienation applies to every municipal park in the State, whether owned by a city, county, town, or village. 

“In order to convey parkland away, or to use parkland for another purpose, a municipality must receive prior authorization from the State in the form of legislation enacted by the New York State Legislature and approved by the Governor. The bill by which the Legislature grants its authorization is commonly referred to as a parkland alienation bill.”

The guide explains that the difficulty of the process derives from what is known as the “public trust doctrine,” which a Cornell Law School legal encyclopedia defines as “the principle that certain natural and cultural resources are preserved for public use, and that the government owns and must protect and maintain these resources for the public’s use.” 

Property becomes “parkland” through either formal or implied dedication, the guide states. Formal dedication would be dedication through law, which does not appear to be the case with Switzkill Farm, as the town does not have a law making this dedication in its codebook. Implied dedication is “shown by actions or declarations by a local government that are unmistakable in their purpose and decisive in their character as to intent to dedicate land for use as parkland.”

Examples of implied dedication offered by the guide include “‘master planning’ for recreational purposes, budgeting for park purposes, ‘mapping’ land as parkland, accepting State or Federal Park grant funds, or constructing recreational facilities.” 

After Berne acquired Switzkill Farm, it established a nine-member advisory board that, among other things, developed strategic plans with a focus on public benefit through events like WinterFest, and maintained seven miles of hiking trails. That advisory board was dissolved by the current town board and reconstituted this year as the Recreation and Parks Advisory Board, which oversees all the town’s parks, including Switzkill Farm.

The guide offers the following steps for officials considering the sale or change in use of parkland: 

— Determine whether the proposed action is an alienation of parkland;

— Explore other options to avoid using parkland;

— Involve the public;

— Notify State Parks;

— Determine if State or federal funding has been allocated to the park;

— Complete the Parkland Alienation Municipal Information Form;

— Contact the local State legislative sponsor;

— Draft legislation with the help of the legislative sponsor and State Parks Counsel’s office; 

— Conduct a review pursuant to the State Environmental Quality Review Act; and

— Pass a Municipal Home Rule Request.

Easement

Further complicating a sale is the conservation easement that was placed on the property by Mohawk Hudson Land Conservancy, a not-for-profit land trust, when the town purchased it. That easement, which limits development and requires that the land be open to the public, will likely reduce the value of the property, Land Conservancy Executive Director Mark King told The Enterprise this week, because it remains in place no matter who owns the land.

“In general, easements devalue property,” King explained, “because the intention is to limit development, and by limiting development you’re reducing what is usually the highest and best use of a piece of land. So you’re going to see a reduction in the appraised value of the property, just as a result of the existence of the easement. And that reduction, I assume, would be greater given the public-use stipulation [that’s in place].”

And because the easement is a perpetual contract, it’s difficult to extinguish, even if all parties involved are in favor of that, King said, adding that Mohawk Hudson wouldn’t be open to discontinuation. The Open Space Institute is a third-party enforcer of the contract, King said, and would also be involved in discussions pertaining to an amendment or discontinuation.

“The intention of easements is that they are perpetual and protect land,” King said. “They’re set up to be difficult to alter and even more difficult to remove. As I said, that is very intentional because these things are meant to last. In order for that easement to be eliminated or altered, it would require either amending the easement, which is a process land trusts approach very cautiously and reluctantly in most cases, unless the amendment is going to have a positive outcome in conservation. 

“You might amend to add land or conserve more land, but those would be the few circumstances where you’re going to amend an easement. To extinguish an easement would require an act of the court ... And that’s unusual. 

“Unless there were something procedurally wrong or a significant error was made, I can’t imagine a court would extinguish a contract that both parties made in good faith, which they did. So getting rid of the easement doesn’t seem like an option.