Legality of Switzkill Farm purchase challenged

— Enterprise file photo — H. Rose Schneider
Switzkill Farm in the past has hosted a summer science program for kids.

BERNE — Since the 2014 Berne Town Board — all Democrats — purchased the Switzkill Farm, some Republicans have claimed the public should have decided on the purchase in a referendum; it has been a campaign issue in every election since.

The now Republican-backed town board — only one Democrat remains — heard at its July 22 town board meeting from town attorney Javid Afzali that, when the property was purchased in 2014, it should have been subject to a permissive referendum. 

The property covers about 350 acres and has several small structures and two large buildings. The Switzkill Farm board has sponsored a variety of festivals and hosted a summer camp on the property, among other open-to-the-public activities.

According to New York State Town Law, a permissive referendum is an optional referendum that is brought about by a resident’s petition, which must be filed within 30 days of the approval of the statute or resolution in question. For a resident to know to submit a petition, though, the town clerk needs to file a notice on the town’s website and in the town’s paper of record. 

According to meeting minutes, the Berne Town Board in 2014 did not authorize Town Clerk Anita Clayton — who is still town clerk — to publish such a notice when it authorized the purchase of Switzkill Farm on Sept. 10.

However, Kevin Crosier, who was supervisor at the time, told The Enterprise this week that the authorization was not subject to permissive referendum because it was not purchased with borrowed money; rather, the town paid in cash the $130,200 required to close the deal.

Crosier also said that the purchase was reviewed by Albany County and the Open Space Institute, both of which provided funding for the property, along with the Mohawk-Hudson Land Conservancy.

New York State Town Law asserts that a town board can acquire real property “by lease, purchase, in the manner provided by law, or by acquisition in the manner provided by the eminent domain procedure law, any lands or rights therein ... required for any public purpose, and may, upon the adoption of a resolution, convey or lease real property in the name of the town, which resolution shall be subject to a permissive referendum.”

The town board at the time was advised by William Conboy II, a prominent Albany attorney who had been the town’s lawyer from 1982 until 2016, shortly before his death. 

“This attorney’s a joke to come up with something like that,” said Crosier of Afzali. Crosier, a Democrat, lost re-election in 2017 to Republican Sean Lyons.

After Conboy II stepped down as the town’s attorney, his son, William Conboy III, took over. Conboy III resigned from his post in April this year and the Berne Town Board — which had meanwhile flipped four of its five seats from Democrat-backed to Republican-backed — authorized Lyons to contract legal services from the firm Bond Schoeneck & King, with Afzali as lead counsel. 

Afzali was formerly the attorney for Knox, having resigned the week before he was appointed to Berne, and is currently Westerlo’s attorney. He received his juris doctorate in 2012 from Albany Law School of Union College, graduating magna cum laude.

At the July 22 meeting, Afzali said that the permissive referendum requirement for a property purchase is “pretty well-established.” He asserted that, because the purchase was made illegally, the town is subject to litigation from taxpayers. However, the statute of limitations for the invalid authorization is six years, with that benchmark passing in just over a month, on Sept. 10. 

If a resident were to sue, Afzali said he wasn’t sure what would happen since an analogous case has never been decided. And, even if the statute of limitations were to pass, he said that some courts have accepted the argument that the statute of limitations doesn’t apply to void votes held by a town board; still others have rejected the argument.

Afzali said that he received two recommendations from his firm on how to move forward. 

The first was for the town board to ratify the authorization and hold a referendum, which, if it passed, would put the town in the clear. 

The second was to wait for the statute of limitations to pass, at which point the burden of litigation would be heavy, as not only would a litigator have to argue that the purchase is invalid but that the statute of limitations doesn’t apply. 

“My preference is — from a legal perspective — do nothing,” Afzali told the board. “This will put the ball in someone else’s court.”

The board voted — 3 to 1, with Councilman Joel Willsey, the board’s lone Democrat, voting nay — to table the discussion due to Councilwoman Bonnie Conklin’s absence. The next town board meeting will be held Aug. 26.


Cause célèbre

While the news that Switzkill Farm may have been purchased illegally likely shocked most residents in the audience on July 22, it was not unwelcome news to many. 

The town’s acquisition of the former Buddhist site has been a flashpoint in Berne, with some residents upset that more input was not sought from them before the board authorized the purchase. 

In a letter to the Enterprise editor published in 2018, Leo Bartell Sr., a Democrat, wrote, “A people's vote is the only right thing to do — not having it shoved at us. The board in Berne has no respect for the townspeople.”

Even board members who voted for the purchase acknowledged its “suddenness,” according to minutes from the Sept. 10, 2014 meeting.

Then-councilman Wayne Emory was recorded as having “commented” on the swiftness of the purchase, without further detail, while then-Councilman Joe Golden was noted as saying that he only voted in favor because “it is money well spent,” in Clayton’s written words.

“[It’s] because of the nature of this and the fact that I don’t think it’s something we should pass up that I’m willing to vote in favor of it,” Golden said at the Sept. 10, 2014 meeting.

The purchase price for the property was $475,000. All but $127,500 came from Albany County and the Open Space Institute. On Jan. 25, the town board authorized an additional $2,700 in closing fees. The town also allowed $12,500 for a conservation easement at the time of the purchase authorization, bringing the town’s initial contribution to to $142,700. 

The quick decision was made because the bulk of the funding would have been lost with a delay. In 2014, Crosier said the town once had the opportunity to purchase a stretch of property on Warners Lake and didn’t pursue it.

“So this is another opportunity, 25, 30 years later, that came about,” he said at the time. “This is probably one of the nicest properties in Albany County, without a doubt.”

While there’s still animosity over the circumstances of the purchase itself, criticism is buoyed by the notion that the town is still putting money toward the farm, as noted by Bonnie Conklin, a Republican-backed Conservative, who said as much in an Enterprise interview while she was campaigning last year.

Calling the property “a great resource,” Conklin said, “I just don’t think our town should be responsible for all the repairs.”

According to Deputy Supervisor Dennis Palow, a Republican, who said he reviewed the financial reports ahead of the July 22 meeting, Switzkill Farm has cost the town a total of $408,934.39, including the town’s initial contribution and a reserve account set up for the property with a balance of $150,000. This leaves other costs at approximately $116,500.

Meanwhile, he said, the property generated only $28,609, which comes from fees charged for weddings, conferences, retreat-house rentals, and other uses. 

The Enterprise has submitted a Freedom of Information Law Request for all financial records related to Switzkill Farm. Clayton, the town’s Freedom of Information Law officer, told The Enterprise that the requested documents will be sent no later than Aug. 31.

Richard Ronconi, who has been on the Switzkill Farm board for four years, told The Enterprise that Palow’s numbers didn’t sound accurate, adding that he was not at the July 22 meeting.

“They’re trying to do anything they can to get rid of the farm,” Ronconi said, “so I’d take those figures with a grain of salt.”

Ronconi said he felt the farm generated more than the sum provided by Palow, but explained that, either way, the property should be viewed as an investment.

“All those four years we were bringing in money,” Ronconi said, “but when the new board came in they didn’t want us to spend money. But the whole idea was we need to invest some money in it so we can get more people up there and make more money.” 

At its first meeting on Jan. 1, the Republican-backed board resolved to hold off on Switzkill Farm Board chairman and vice-chairman appointments, along with appointments to the conservation board, with Supervisor Lyons explaining to The Enterprise that there was interest in combining the boards.

At the town board’s Feb. 15 meeting, as dozens of residents rallied against the Republican majority, Lyons announced that the boards could continue to meet but did not make any appointments to the Switzkill Farm board.

Mark Hohengasser, who was chairman of the board in 2019 and served as vice chair  in years’ prior, told The Enterprise that the town board is stifling what could be a lucrative feature of the town with its politicking.

“From day one this has all been political,” Hohengasser said. “This has been a strategy of the Republican side and it’s been high priority. I think they’ve put a lot of time in thinking how to abolish the park … I’ve always felt there’s an opportunity to succeed or intentionally make it fail and the town board, as it stands now, wants it to fail.” 

Hohengasser brought up the property’s “silver” certification by the International Dark Sky Association, which means that the sky there is only slightly impacted by light pollution, making it a prime spot for an observatory. 

In 2016, the town and Switzkill Farm boards were presented with a proposal  for an observatory by the Helderberg Earth and Sky Observatory Planning Committee, headed by Ron Barnell. 

The 21-page proposal included letters of recommendation and support from various people, including from professors of physics at both the State University of New York at Albany and Rensselaer Polytechnic Institute, along with Berne-Knox-Westerlo superintendent Timothy Mundell.

While the project fell through — Barnell has switched his focus to Rensselaerville — the interest in Switzkill Farm as a locale suggests greater utility than Hohengasser says is being leveraged.

“The place is a wonderful venue for events,” Hohengasser said. “Now with COVID that’s a little different, obviously …. But it has so many possibilities.”

Executive director of the Mohawk-Hudson Land Conservancy, Mark King, said that, as a layman, he thinks Afzali’s interpretation of the law sounds incorrect, and he highlighted the natural value of the property.

“It’s got a lot of great features to it,” King said. “It’s got views to the Catskills and beyond, it’s got a waterfall on it … so there’s all kinds of opportunities on that property.”

King also mentioned that the land is near the state-owned Partridge Run Wildlife Management Area and adjacent to Cole Hill State Forest, an 876-acre area that includes four miles of a trail known as the Long Path that starts in New Jersey at the George Washington Bridge to Manhattan and extends north to Altamont.

“We were involved in the beginning, talking to the town and the county and the Open Space Institute about how to make this happen,” King said. “Ultimately, our primary role is that we hold a conservation easement over the land … which places some limits on how the property can be utilized into the future. The limits are that it has to stay a park and remain accessible to the public, but there’s a lot of flexibility in how it can be utilized.”


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