BERNE — In its endeavor to relinquish ownership of Switzkill Farm, the town of Berne may take the unusual approach of selling it at auction. 

Collar City Auction President Randy Passonno attended the Aug. 17 town board meeting to lay out what that process would look like and why it would benefit the town, but not without obliquely acknowledging the “obstacles” that exist — specifically the conservation easement that was put into place through an agreement with the Mohawk Hudson Land Conservancy when the town purchased the 350-acre property in 2014. 

The town board then was made up of Democrats and is now GOP dominated; Republicans have used the purchase of the property, costing the town about $130,000, as a campaign issue in elections since the purchase.

Passonno, who, according to Collar City’s website, is a licensed Realtor and appraiser, described the process as “streamlined.” The town would allow Collar City to market the property and ultimately submit it to an auction period where bidders would compete against one another to ideally drive the price upward. Once bidding closes and the highest bidder is identified, the town board would meet to accept or reject the bid. 

Passonno said that a sale would be as-is and on a cash basis, and that it does not cost the town money to use Collar City’s services since the buyer is the one who will pay the company a 10-percent fee. In traditional real estate sales, it’s usually the seller who pays a fee to the Realtors involved — typically 6 percent of the sale price, according to the real estate website Zillow. 

Real-estate company Millenium Properties, which handles both real-estate auctions and traditional real-estate sales, describes on its site other benefits of auctions: They attract “highly motivated buyers” who are prepared for the auction process, and they occur within a fixed timetable, as opposed to market listings, which can sit dormant.

Passonno told the town board it can define the range of bidders however it wishes, such as restricting it to those who are based within the United States, and that the “personal property” at Switzkill Farm — furniture and equipment and such — can also be sold in a separate auction. 

Conservancy perspective

What went unmentioned during the meeting is that Mohawk Hudson Land Conservancy, through the conservation easement, has right of first refusal — a possible complication in the process, Mohawk Hudson Executive Director Mark King told The Enterprise this week.

“The auction format, to my knowledge, wouldn’t lend itself very well to that because we could step in and offer to buy once someone made their bid, so that would be kind of an awkward situation,” King said, noting that this is “new territory” and that he has never seen someone auction off an easement property. 

“The more typical approach,” he said, “... is they’re put on the market with or without a Realtor, and when [the owner] has a genuine offer and they think it’s going to go forward, we’ll then be contacted and asked whether we exercise our right or not.” 

King said that Mohawk Hudson has never gone ahead with that before, and that the right “is really there more as an opportunistic situation.”

“For example, if a property is adjacent to something else that’s come along — maybe we’ve got a preserve next to it and see the addition of some property as beneficial — we might then want to pursue the right, but we’ve never done that in the past,” he said. “And no telling what would happen in this [auction] scenario that they’re talking about.”

The other aspect of the easement that might get in the way, King said, is the condition that the property must remain open to the public, which would potentially make it unappealing to a non-developer who is otherwise unbothered by the easement. 

Passonno, at the end of his time before the board, told them that he’d need to know whether the conservation easement will remain in place before the property is put to auction so that that information can be conveyed to bidders. But, because the easement was entered into willingly, it’s unlikely that any court would allow the town to dissolve it without Mohawk Hudson’s consent, King told The Enterprise last year, when the town board first floated the idea of a sale.

Parkland

Further complicating matters, as The Enterprise has reported in the past, is that Switzkill Farm is likely considered parkland through implied dedication, and parkland can’t be sold by a municipality without state cooperation and legislative action. 

A a guide from the New York State Office of Parks, Recreation, and Historic Preservation 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.

Although the town never formally declared that Switzkill Farm is a park, it did establish 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, which meets the criteria for implied dedication of parkland, according to the state guide. 

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.

Berne resident Helen Lounsbury told the board at its Aug. 17 meeting that, although she feels the auction may be a good idea, it should be voted on by town residents. Supervisor Dennis Palow said that the town would hold public hearings on the matter.

Other options

The Berne Town Board, which is currently made up entirely of Republican-backed members, has been exploring the possibility of ditching Switzkill Farm since 2020, when the board at that time claimed that the property had been purchased illegally, since it was not subject to a permissive referendum. 

The purchase had already been controversial with many residents, Republicans and Republican-backed board members in particular, primarily because of the maintenance costs, which they feel do not feed into any meaningful revenue streams for the town. 

The property had also been purchased on relatively short notice, leaving some residents feeling that they weren’t able to adequately voice their concerns. The property was purchased quickly because the town had funding available from Albany County and the Open Space Institute, which together contributed all but $127,500 to the sale, excluding $15,200 in fees. 

The town currently has the option to hand the property over to Albany County, which would allow Berne to continue using the property in the same way it has since it was purchased. 

County spokeswoman Mary Rozak told The Enterprise this week that the county has not heard back from the town after making a formal proposal for ownership. Palow had announced in March that he and other town officials had met with County Executive Daniel McCoy to discuss such an agreement, though he portrayed it as a partnership rather than a transfer of ownership. 

“What that means is, we’ll still be involved, and our board will still be able to make decisions up at Switzkill Farm,” Palow said at the time, “but the county would be involved more, and anything that needs to be done up there, the county will pay for. It will not be coming … out of our budget, and our residents will still be able to rent it and that revenue will come to the town.”

Rozak declined this week to discuss the specifics of the proposal. Palow could not immediately be reached for comment on whether the town is still considering it.