BERNE — The Mohawk Hudson Land Conservancy, through its attorney, Jon E. Crain, has moved to dismiss a lawsuit filed against it and the town of Berne by three Berne residents, including convicted felon and former state Supreme Court Justice Tom Spargo, over the town’s 2014 purchase of Switzkill Farm. 

In court documents obtained by The Enterprise, Crain argues that the residents, who claim that the town board purchased the 350-acre property illegally because it had not notified residents of their supposed right to a permissive referendum, is not only beyond the statute of limitations, but that the residents and their attorney, John E. Sweeney, failed to consider a section of New York State Town Law that authorizes town boards to expend surplus funds without being subject to a permissive referendum. 

Crain also counters an argument the plaintiffs made that the town board had not authorized a conservation easement placed on the property by attaching minutes of the Sept. 10, 2014 town board meeting, which include reference to the establishment of the easement using funds additional to those used to purchase the property.

Finally, Crain argues that the plaintiffs did not name all entities involved in the purchase, who would be affected by a court order to sell the property back.

The parties involved, Crain argues, are the Tenzin Gyatso Institute, the Buddhist group that sold the property; the Open Space Institute Land Trust, which helped cover a portion of the purchase price and is named as an enforcer of the easement; and the Albany County Capital Resource Corporation, which also provided funding for the purchase of the property.

“These non-parties have interests that would be adversely impacted by a judgment in this action,” Crain writes, “and full relief cannot be afforded without them.”

Crain, who is a partner with Whiteman Osterman & Hanna, LLP, declined to comment this week. Sweeney, a former United States Representative who appears to practice independently, could not be reached for comment. 

Legal background

Philip Stevens, Ian Connors, and Spargo brought forth the order to show cause against Berne and Mohawk Hudson Land Conservancy late last year. The suit aims to nullify the purchase of the property on the premise that the town failed to offer residents the chance to petition for a permissive referendum. 

As Crain notes in his motion to dismiss, the suit was developed six years after the purchase was authorized, which goes beyond the four-month statute of limitations provided by New York State Civil Practice Law and Rules. 

The possibility that Switzkill Farm was illegally purchased was brought up by Berne’s attorney, Javid Afzali, at a 2020 meeting of the town board, which that year had become the first Berne Town Board in decades to have a Republican-backed majority. 

The town board that purchased the property in 2014 for $142,700, including a $12,500 fee for the easement (only a portion of the total purchase price of $475,000), was dominated by Democrats and led by Supervisor Kevin Crosier, who was ousted by Republican Sean Lyons in 2017, and counseled by attorney William Conboy II, who has since died.

Although Spargo and Stevens are both currently enrolled as Conservatives, both have been active in Berne Republican politics. Stevens was formerly the Berne GOP Party chairman and Spargo, once elected on the Republican line as a Berne town justice, was the GOP-backed Berne Town Board’s controversial choice last year to chair the town’s planning board.

Though the purchase has been controversial across party lines because of its sudden nature, which Crosier has stated was necessary because of the third-party monies involved that would have been lost, Republicans have used it as a campaign issue ever since.

Afzali, who was hired as the town’s counsel in April 2020, stated at the July 2020 meeting that, because the town had made the purchase without notifying residents of their right to petition for a permissive referendum, the town was vulnerable to a lawsuit. 

However, he acknowledged that the statute of limitations for misappropriation of public property was six years, which meant that the window would close on Sept. 10, 2020, less than two months from the July meeting. 

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

Afzali explained that, for a lawsuit against the town to be effective, residents would have to not only prove that the purchase was illegal, but that the statute of limitations should be waived. 

The purchase

Switzkill Farm, formerly known as the Game Farm Road property, was purchased with a conservation easement in 2014 for $142,700 in town money by a unanimous vote by the town board of the time.

The total purchase price for the property was $475,000, not including the $12,500 easement fee. The remaining $344,800 was sourced from Albany County and the Open Space Institute. 

The property was sold by the Tenzin Gyatso Institute for Wisdom and Compassion, a not-for-profit Buddhist organization based in California whose present status is unclear, according to Crain. The Enterprise could not find any current information about the organization.

Former Hilltown resident Joanna Bull, who was instrumental in sourcing the property for the Buddhists, and who now lives in California, told The Enterprise this week that the Tenzin Gyatso Institute itself disbanded at the time of the sale to Berne.

When the Buddhists first purchased the Berne property, it was called the Rigpa Center for Wisdom and Compassion, and they had plans to construct a large temple and renovate several existing buildings.

Tenzin Gyatso is the birth name of the current Dalai Lama, the traditional government leader and highest priest of the dominant sect of Buddhism in Tibet, who was displaced when the Chinese took over.

The Berne center was considered the only North American retreat center associated with Rigpa, an international Tibetan Buddhist organization with centers across the globe. Rigpa centers base their programs on “The Tibetan Book of Living and Dying” by Sogyal Rinpoche, who visited the Berne retreat center for its inauguration in 2010.

Visitors came to stay in the center’s living quarters, which offered instruction on meditation and the philosophies of Buddhism. It also was aimed at training caregivers to help dying people.

The property was originally listed for $750,000 in July of 2014, according to the order to show cause but, when negotiations between the Tenzin Gyatso Institute and another Buddhist organization broke down, the not-for-profit approached the town with the lower price.

The discount, combined with the opportunity to use outside funding, sent Crosier into a scramble to close the deal, he has said. Former Councilman Joseph Golden, who was on the town board at the time of the purchase authorization, said before his vote that, while he was wary of the timing, “[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.”

The sale was covered by The Enterprise at the time, and a month after the authorization, the Berne Town Board submitted a joint letter to The Enterprise editor inviting residents to share their thoughts. Crain argues in his motion to dismiss that contemporary media reports like these undermine any argument that the purchase occurred without the chance for resident input.

To develop and maintain the property, the town established a seven-member supervisory board that would come to be known as the Switzkill Farm Board, once the land received its current name. That board hosted public events like WinterFest on the property, as well as private events like weddings, and it has warned against the threats of complacency on the town board, which in 2020 suspended the board before disbanding it altogether in 2021. 

Now the property is overseen by a general-purpose Recreation and Parks Advisory Board, which critics say won’t have the resources to develop the property to its full potential. 

The property is home to caretaker Nelson Kent, whose day-to-day maintenance of the property is accepted by the town in lieu of rent. Kent is a Buddhist who inhabited the property before the town came into possession of it, along with fellow Buddhist Diane Poole, who lived in a retreat house and was not related to Kent.

In February 2018, when temperatures were below freezing, Berne’s code-enforcement officer Chance Townsend evicted Kent and Poole because of faulty sprinklers, giving them only a few hours’ notice before vacating them. This enraged Democrats in the town, including Crosier, who said Poole was “hysterical” and “in tears” after the incident. She never returned to the property.

Now that the town board is made up of Republican-backed board members and just one Democrat, Joel Willsey, supporters of Switzkill Farm are on edge, and were suspicious that Republican leadership was aiming to get rid of the farm even before last year’s lawsuit was publicized. 

The town’s 2021 budget reduced the then-Switzkill Farm Board’s budget by $5,000, leaving just $10,300. 

Former Councilwoman Karen Schimmer, a Democrat who was on the board when the property was purchased and left office in 2020, after not seeking re-election, criticized Lyons for what she perceives as hypocrisy. 

Schimmer told The Enterprise last November, as she gave a tour of the property — all the while envisioning scenarios like Shakespeare in the Park, and an authentic Native American longhouse that could be built for school kids to learn about indigenous cultures — that Lyons once agreed with her that the park had “a lot of potential.”

“Then he does something like this,” Schimmer said of the board’s dissolution, along with budget cuts, “that shows there’s no interest in promoting or encouraging the place.”