Lewis Family Farm, Inc. vs. APA
 

On August 17, 2009, the Adirondack Park Agency silently let the time expire to seek permission from the Court of Appeals to appeal the Appellate Division's unanimous decision affirming the Lewis Family Farm's complete victory in the Essex County Supreme Court.  The Lewis Family Farm's landmark victory over the Adirondack Park Agency is now final and not appealable.



In my opinion:

In which we attempt an accurate account of the hearing before Supreme Court, Appellate Division, Third Judicial Department, on May 27th, 2009, and offer thoughts about our government. - MORE -


May 27 -Final - The Oral Argument (Text - Not a Transcript)

May 27 - The Oral Argument (Audio)

May 12 - We Thank the Court


May 8 - Scheduling request May 27 Oral Argument

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In which Hon. Justice Richard B. Meyer’s well recognized Opinion is challenged, and the Farm defends - the government’s attack on the constitution, farming, New York Farm Bureau, Judge Meyer and us.


When understood, the first APA vendetta commenced on November 5, 1998, as we denied further support to Essex Community Heritage Organization and rejected ECHO’s approach to our neighbors as framed by ECHO executive director, Robert J. Hammerslag, now living in the Philippines. Robert C. Glennon Esq., retired APA general counsel, came hired by Hammerslag to the Town of Essex to abuse the constitution of New York the first time – and was fired by the Town after one appearance. For that record in its entirety, see 1998-1999, here.  The Town has destroyed its copy. Our thanks to those who shared.


This fresh attack on the constitution commenced in 2006 as we rejected Town of Essex Supervisor Ronald E. Jackson. Jackson’s life long destruction in the Farm’s elegant sugar bush, purchased from a branch of his family, was habit formed, his personal approach to us was oppressive, and we said no to more of each. Result:  the Road Case, Essex vs. Lewis, and APA. Mr. Jackson pulled a Hammerslag. That took one call to Ray Brook. Essex and Jackson lost, and we have prevailed against APA, both documented here.


In the end, we will farm, or we will not farm. That’s where we are, and all know it. Ironically, APA wants jurisdiction over 40 new houses – rather than having the best organic farm in the region – which APA cannot touch. APA board member Art Lussie asked me for the building contract as he went off to vote.


APA demands jurisdiction over our land, our cleansed landscape. This is the APA sickness. What we have is too good for the indigenous. Our views and land must be given over to second home buyers, those who support APA. APA supporters demand we subdivide, want us to build. APA wants jurisdiction, more files to stroke, more staff and more money from Albany to Ray Brook. It is about sustainability of APA, second homes, not a self-sustaining Lewis Family Farm.


Affirmed, Judge Meyer’s Opinion takes us to the next stage. We have much to do. Our family cares.


Government is failing across the land. Here the unelected, secretly supported government agency seeks to destroy New York’s better organic farm and the indigenous population, our dying neighborhoods and neighbors.


We will be pleased if it ends here. We know the enemy, and the enemy knows us. Once, we were friends and firm supporters of ECHO and APA.


Today, we farm.


Superior Court, Appellate Division, Third Department, reviews untold numbers of cases per year. For the eleven elected jurists, the math is incredible. Justice is threatened when an appellate court is overwhelmed.


On May 27th,  sixteen cases will be heard.  in Albany. AG’s appeal office gave the Court 1,500 pages on our appeal alone. What panel can absorb that record? The AG’s office swamps the Court. It’s a government snow job at taxpayer expense, set for APA to crush us – as they have the indigenous. No other farmer would fight back.


In over five months, Judge Meyer heard and took the record. He sat the case. His Opinion is clear and concise, and published all over the state. He has earned the respect of all.


Secret Life of Judges (see side bar above)


Chief Judge Dennis Jacobs, United States Court of Appeals for the Second Circuit, expressed our conviction and told the truth. With full cooperation from courts and lawyers, APA counts on crushing its enemy.


We approach the Court with profound respect and with equal dismay. We understand Jacobs. We are opposed by government lawyers and a whole damn process bent on destruction of our farm and a farmer’s right to house the farmhand.


We must hope this panel will take the time – and get it. Our constitution is threatened, we are threatened, and it’s a vendetta.


This is a North Country farming case.


Our stewardship of the environment thrills the most critical. APA knows this full well.


It is our success and future sustainability APA and its friends fear. And well they should. We are the new indigenous, and we aim to make it.



May 8 - Lewis Family Farm Reply Brief, examines the (un)constitutionality of APA's position


H        H        H



In which the Attorney General - APA denies the Court the respect of an advanced request, files an oversized 20-page final brief as it "asks" the Court's "permission" to do so on the last day, and tells the Court the allowable is 15, when it's 10 pages.


April 30 - Clerk of the Court’s letter to AG - /s/, ipso facto?

April 28 - AG Letter to Court


April 28 - APA's Appellant Reply Brief, in which the APA supplements its argument that "single family dwellings" are not "agricultural use structures"


April 14 - Appellate Division's Day Calendar for Wednesday, May 27, 2009  1:30 P.M. Session



April 1 - May Day.  Respondent Lewis Family Farm's Brief in Opposition to the Agency's Appeal of Hon. Richard B. Meyer, in which the Farm defends Judge Meyer's opinion recognizing the Farm's right to farm unfettered by APA jurisdiction, reiterates that right to farm is without meaning absent right to house the farm worker, and eviscerates the inconsistencies in the vendetta mounted against the Farm by APA and those who urge the bureaucracy on.  Anonymous supporters of their APA surrogates in the 501(c)3 community, with property interests masquerading as environmental, may believe in the immaculate conception in organic farming - but the farmer must work a real world that requires real people to do real things, day and night - people who live the job and their farm.  Their job is their life, the farm is their job, their life is the farm, nothing more, and nothing less.  


This is not April Fool's.  It is May Day.


April 1 -  Respondent Lewis Family Farm's Brief in Opposition to the Agency's Appeal, in which the farm defends Judge Meyer's opinion recognizing that the Lewis Family Farm's right to farm includes a right to house farm workers.



Excellent and Powerful:


“‘Forever wild’ should capture the essence of the Park, not the Agency entrusted with enforcing laws to protect forests and farms there for the benefit of all New Yorkers.”


April 1 -- Brief of Amicus Curiae of New York Farm Bureau, Inc., in which the Farm Bureau supports the Judge Meyer's opinion that farm worker housing is an "agricultural use structure"



March 20 -- Appellate Division's Decision and Order on the Agency's Motion for an Injunction, in which the court maintains the status quo pending the Agency's appeal by allowing the use of the only complete farm worker dwelling. The relief granted is no different from the relief granted by the same court to the Lewis Family Farm in May 2008.

The two houses in question are shells. They lack heating and plumbing. Work was stopped when the attack began. Should the farm not prevail in this battle, the houses will be razed and the farm sold for housing with a market value. These houses have no market value to second home buyers. First home buyers in the region would not be able to afford them. The farm would cease to exist.


March 6, 2009 -- Appellate Division's Decision and Order granting the New York Farm Bureau permission to file an Amicus Curiae Brief in Support of the Lewis Family Farm


March 3, 2009 -- Letter from Appellate Division confirming that oral argument will be heard during the May-June Term


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March 2, 2009 -- Appellant Agency's Brief to the Appellate Division in Support of Its Appeal of Judge Meyer's Decision & Order

March 2, 2009      Record on Appeal - Vol. I (compilation of materials from Lewis Family Farm's declaratory judgment action against APA) (Summer '07) NOTE: 14mb download

                             Record on Appeal - Vol. II (compilation of materials from Lewis Family Farm's Article 78 proceeding and APA's duplicative enforcement action) (Spring-Fall '08) NOTE: 17mb download

                             Record on Appeal - Vol. III (compilation of materials from APA's administrative enforcement action against Lewis Family Farm) (Winter '07-'08) NOTE: 44mb download


The government record (R) is 1,500 pages, government appeal is 50.



In which AG Andrew Cuomo's AAG, Loretta Simon Esq., in her first recognition of Judge Richard B. Meyer's order to notice the New York Farm Bureau when she reaches for the courts, acknowledges the presence of Cynthia Feathers Esq., New York Farm Bureau appeals counsel, in her effort to limit what the Farm Bureau might want to say to five judges of the Appellate Division, Third Judicial Department, should we all survive to the point of oral argument.  


The news that fills our hearts these days includes the following: the debt crisis in America and around the world threatens peace and prosperity, everywhere. California and New York, among others, are in arrears, NY to the tune of $15Bn. State employees everywhere may be paid in scrip before long, but AG Cuomo's office is bent on preserving the right to destroy the state's most interesting organic farm and the farm's court given right to build to house its workers and family. Meanwhile, Mayor Mike Bloomberg has all but endorsed his predecessor, Sir Rudy Giuliani (see Mayberry Man, The New Yorker, August 2007), former mayor of New York City and a defeated GOP presidential hopeful, in a race that would replace Governor David Paterson, whose poll numbers are lower than Giuliani's.  


In due course, it may come down to fresh food, fresh water, and the means to survive civil unrest. We have them all.


We are living in interesting times - and we will prevail against APA and AG effort to destroy the farm.


When losing would be winning, we will win.  


February 27, 2009   Letter from Ass't Attorney General Loretta Simon Consenting to Farm Bureau's Motion to File an Amicus Curiae Brief.



Tonight, as the instant record closes, counsel points out the obvious - but neglects to show the three critical pages where an AAG misrepresents in 1999 under penalty of perjury, hidden today, by AAG Simon, from the Appellate Division, Third Judicial Department.  These pages are at '1999' as noted here:


February 23, 2009 -- Letter of John J. Privitera, esq., to Appellate Division in Response to Agency's "Affirmation in Further Support", in which the Court is asked to strike and disregard prejudicial and irrelevant material offered by the Agency.



In North Country Shakedown, see 1999, AAG Robert Rosenthal simply lied. In 2009, AAG 

Loretta Simon hides Rosenthal's lie of 1999 and offers the rest of it to confuse the Appellate Division, Third Judicial Department:


From 1999 North Country Shakedown

Dec 11, 2000  Ass’t. AG Robert Rosenthal misrepresents under penalty of perjury in his affidavit  In the face of our letter of October 23rd, see above,

AG Rosenthal claimed (see paragraph 5 of #626-00) in his affirmation to the court of Dec 11, 2000, “LFF has already contributed $50,000 to the Town of Keene for the purpose of assisting in funding... an environmental benefit project.”  FACT:  Neither we nor the farm gave to the Town of Keene. 

At the suggestion of Anita Deming, Cornell Cooperative Extension Agent, Sandy and Barbara Lewis (not LFF) made a tax - deductible gift to Trout Unlimited — Anita Deming solicited for Trout Unlimited, to “make the APA feel good” - and gave our gift to Glens Falls pediatrician John Braico MD for Trout Unlimited; fearing what government would do with this gesture, we sent the letter to Rosenthal of October 23rd: FACT - we refused to donate in settlement - were asked, declined, and sent the letter. Lewis Family Farm does not contribute to charity; neither we nor the farm gave a donation in settlement discussion with the APA.  Rosenthal was wrong and knew it.  Sandy & Barbara’s gift was not made as a result of a settlement discussion or a negotiation.  Period.


February 20, 2009 -- Affirmation of Loretta Simon in Further Support of Agency's Motion for an Injunction.



As our six kids used to say, “harsh but fair”


February 17, 2009    Memorandum of Law in Opposition to Agency's Motion for an Injunction, in which the Lewis Family Farm establishes that the Agency has failed to articulate its entitlement to an injunction and shows that the Agency's motion is punitive.

 

February 17, 2009   Affidavit of John J. Privitera, Esq., with Appendix of materials supporting the Memorandum of Law in Opposition to the Agency's Motion for an Injunction.


Government will not oppose New York Farm Bureau appearance.


February 13, 2009    New York Farm Bureau, Inc., submits Motion to File an Amicus Curiae Brief to the Appellate Division in Support of the Farm.


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In which the APA, in seeming desperation, seeks to sabotage our farm and the 2009 growing season in the face of it's stunning November defeat.  Judge Meyer and the Appellate Division have each ruled that the Lewis Family Farm has established the "likelihood of success on the merits" -- and thus, the Agency is likely to lose, yet again.  We note, the AG asked for March 2nd against February 17th, claiming insufficient time.  For pertinent facts and documents that bring them, please review four entries from the record in order of appearance:

Apr 25, 2008    Judge Meyer’s Decision and Order (1) granting the motion to consolidate the Article 78 proceeding and the APA’s duplicative enforcement action, (2) denying the APA’s motion to transfer judges, (3) and granting the motion to renew and reargue, but adhering to the April 11, 2008 Decision on the stay of the Determination

Apr 28, 2008    Order to Show Cause to Appellate Division, Third Judicial Department, and Affirmation of John Privitera, esq. in Support of a Full Stay of the APA’s Determination

May 19, 2008    Decision and Order of the Appellate Division Third Judicial Department granting the Lewis Family Farm’s Motion to Extend the Stay of the APA’s Determination, allowing partial use of the farm buildings pending judicial review of the Determination

Nov 19, 2008    Decision and Order of Essex County Supreme Court (J. Meyer) Annulling the APA's March 25, 2008 Determination and Dismissing the APA's Duplicative Enforcement Action Against the Lewis Family Farm 



By way of explanation...

Agency's motion in the Appellate Division for an order extending the May 19, 2008 stay, which prohibits the LFF from using 2 of the farm houses.  Although it first sought a February 16, 2009 return date, the Agency served an Amended Notice of Motion with a February 23, 2009 return date. 

 

Pursuant to Appellate Division rules, the LFF's opposition papers are due by 11:00 am on February 17, 2009.

Feb. 2, 2009   AG's Notice of Motion for Partial Stay                                   2

Feb. 2, 2009   Affirmation of Loretta Simon, Esq., in Support of Stay         81

Feb. 2, 2009   Affidavit of Douglas Miller                                                     3

Feb. 2, 2009   Affidavit of Sarah Reynolds                                                    7

Feb. 2, 2009   Affidavit of Shaun Lalonde                                                   47

Feb. 2, 2009   AG's Amended Notice of Motion for Partial Stay                  2 

                                                                                                                    142 pages



In which the Appellate Division, Third Judicial Department, responds, please see our motion, then see Adam Liptak, New York Times, August 27, Benjamin H. Barton, Chief Judge Dennis G. Jacobs, Chief Judge of the United States Court of Appeals for the Second Circuit.

Jan. 15 -- Appellate Division's Decision and Order Consolidating the Outstanding Appeals and Deeming the APA the Appellate on the Consolidated Appeals.  (APA's Opening Brief and the Record on Appeal are Due on March 2, 2009)


In which AAG Loretta Simon reveals that her proposal has the attention of her supervisors, as her draft brief requires "substantial internal review." (see paragraph 5); and she attempts to explain her arbitrary charge of $2.37 per page, then mislabels the charge proposed at 'about $19,000' || This government submission to the court is not authorized nor are we permitted to respond.  

Jan 9, 2009 The Unauthorized and Untimely "Sur-reply"


In which the farm requests action before the growing season starts, not before it “passes” (See page 7) and, “Incredibly, the Agency seeks authorization from this Court to charge the Lewis Family Farm $19,434.00 in copy reproduction charges!” - Jacob F. Lamme Esq.


January 5, 2009   LFF's Reply to APA's "Limited" Opposition to LFF's Motion to the Appellate Division, Third Department Requesting Consolidation of LFF's Appeal of Judge Ryan and the Agency's Appeal of Judge Meyer

[This is the corrected version. Click for explanation letter or original voided document.]


In which the government does what the government does.... We are all paying for this.

January 2, 2009   APA's "Limited" Opposition to LFF's Motion to the Appellate Division, Third Department Requesting Consolidation of LFF's Appeal of Judge Ryan and the Agency's Appeal of Judge Meyer


December 23, 2008   Motion to the Appellate Division, Third Department Requesting Consolidation of LFF's Appeal of Judge Ryan and the Agency's Appeal of Judge Meyer


December 17, 2008   Notice of Appeal, Index No. 315-08 and 332-8, December 17, 2008; Notice entered on the 29th day following the Court's decision, November 19; government had till the end of the month of December.




Related cases involving the Appellate Division, Third Judicial Department:

315-08315-08.html
332-08332-08.html
498-07498-07.html


Unrelated Road Case, appeal ignored:

47-0747-07.html

 
The_Appeal_files/jacobs.pdf

We ask, who is in charge here?

Of course, this destroys Lewis Family Farm's ability to recruit and execute strategy - and threatens the farm's existence. Chilling, but this is APA strategy.  All of this is supported by Adirondack Council and the other 501(c)(3) types with anonymous donors seeking the hole in the donut, surrounded by state land, and funded by Nature Conservancy money.  Note: http://www.uncommongoods.com >> Oliver, for our son's memorial in photography, donated by his brothers and sister, purchase money credited to Nature Conservancy in the name of James Oliver Lewis, born April 17, 1972, died December 14, 1998.


We know who's in charge here: government, motivated by the property interests of the few, abusive to the many, violating law and the courts, day after day, for 37 years, a rogue agency in need of honest management.

 

Unlike the other timelines on this site, we present this in reverse chronological order with the newest documents on top.

Appeal-related documents are presented in their respective cases. Click the links below for those timelines.

The Secret Life of Judges

By Dennis G. Jacobs

Do Judges Systematically Favor the Interests of the Legal Profession?

By Benjamin H. Barton

With the Bench Cozied Up to the Bar, the Lawyers Can’t Lose

By Adam Liptak, New York Times, August 27, 2007

© 2008 Lewis Family Farm. All Photos © Barbara A Lewis, except where otherwise noted. All rights reserved.

E2007-041E2007-041.html
315-08315-08.html
332-08332-08.html
PressPress_Archives/Press_Archives.html
WelcomeWelcome.html
47-0747-07.html
Other APA
CasesOther_APA_Cases.html
Motion for FeesMotion_for_Fees.html
The $50K
Caper50K_Caper.html
Early
DocumentsEarly_Documents.html
498-07498-07.html
1998-19991998-1999.html
Cases
ExplainedCases_Explained.html
The
Appeal
The DecisionThe_Decision.html
EpilogueEpilogue.html