Higley and his son Alfie have operated a farm stand in a residential area on Route 28 in Mount Tremper for nine years, defying zoning laws that limit the size and scope of businesses in such zones. The operation has perplexed a series of town supervisors torn between enforcing the law and encouraging a popular local business.
Shandaken’s Zoning Enforcement Officer (ZEO), Gina Reilly, replied on June 3 to a complaint against Hanover Farms filed by three neighbors of the business. Within the required 10 days of receipt of the complaint, Reilly sent the complainants a letter asking for patience as the town board crafts a new law “that will assist us in the continued effort to attract such establishments to our community, while providing for sustainable business without sacrificing the safety, health and welfare of our community.”
Stanley said he has been consulting individually with board members on their suggestions for details such as increasing the size of businesses permitted within the existing law, specifying what hours they may operate, and what sort of goods they may sell. The current code limits farm stands to 100 square feet and its products to food items grown or made on the owner’s property, while Hanover Farms is over 2500 square feet, according to a 2008 letter provided by Higley, and sells a wide variety of produce and groceries.
“We have to see if the revision works within the zoning code and law, see what i’s have to be dotted and t’s crossed,” said Stanley. “We’re hoping to present it at the July 11 meeting. We’re ready to move on past this issue. If we have something we feel comfortable with, and the board votes accordingly, it will go to the Planning Board,” which will have 45 days to study the law and make its recommendations. As with any new law, a SEQR process will follow, involving a questionnaire on possible impacts to the environment, as well as a public hearing.
“It will take two to three months for the whole process, at a minimum,” said Stanley.
Higley, when asked what he thought of the proposal to revise the law, replied, “They haven’t made us an offer yet,” expressing disgust at the town’s role over the years of interaction regarding his business.
DiSclafani, who grappled with the farm stand issue during his single term as supervisor, has doubts about changing the code as a solution to the problem. His administration attempted a similar revision that ultimately was voted down by the town board.
He recalled, “I was willing to increase the size to 2000 square feet. Now I think that’s too big. To make a law that will work for [Higley], it has to be applicable to all residential zones. People scoff: who would put a business on a side road, no one’s driving by, but it still opens up an opportunity to put a business by anyone’s house. After thinking long and hard and seeing that there are neighbors complaining about it being open all night long, with the lights and the noise, I think the best option is to ask Mr. Higley to move to a commercial zone.”
Higley responded to this suggestion by saying he was, in fact, planning to move the business, “but not in Shandaken. We’re tired of this stuff.”
$2500 for approval?
At a May 25 special town board meeting on the subject, Alfie Higley referred to the town’s having “reneged on a deal” in 2008. Stanley told Woodstock Times that Higley was alluding to $2500 paid to the town by Hanover Farms when DiSclafani was attempting to resolve the issue.
When asked about the fate of the $2500, DiSclafani, speaking on June 14, offered his version of the story. He explained that the then newly appointed ZEO Reilly issued a “notice of non-compliance” to Hanover Farms within a month of DiSclafani’s taking office as supervisor. According to DiSclafani, Al Higley threatened to sue the town if it attempted to enforce the violation. DiSclafani set up a meeting with Higley and his lawyer, Reilly, the chairs of the zoning and planning boards, and a lawyer hired in place of the regular town attorney, who was on vacation.
“The town attorney said maybe we could find a compromise between what the current law is and what you [Hanover Farms] are now,” said DiSclafani. “By law we couldn’t create a law that was exactly what he was. That would be spot zoning, which would open up the town to a lawsuit. Mr. Higley was asked to send us specifics of his current site, and we told him we’d work on a law that would come close to that.”
Two months later, having received no data from Higley, DiSclafani asked the attorney to “draft a letter that might compel him to send the information so we could get moving. In that letter he asked for site plan specifics and $2500 to cover costs, legal or otherwise. I’m told that’s not usual, that it’s generally done through the planning board, and there’s no fee schedule. A couple more weeks go by, and Mr. Higley sends me back some specifics and a letter stating that ‘by cashing this check you approve my business, with no other need for approvals.’ I called the attorney and asked, ‘Is this anything? Is this real?’ He said no, you can’t attach a contract to a check unless there are two signatures on it [from both parties]. I unfortunately just deposited the check into the general fund.”
Higley’s point of view is that “Their attorney insisted we give the money, or they weren’t going to do any more on the farm stand law. I don’t care what Peter DiSclafani says — this is extortion. We put down conditions in our letter and on the check about what their obligations were” — obligations he says the town tacitly agreed to by depositing the check but failed to fulfill by not coming up with a plan to make Higley’s operation legal. He says he submitted a check bearing the memo “site plan approval,” and the word “approval” was illegally crossed out by the town.
Some six to eight months later, when the town board had presented proposed changes at public meetings, Higley was unhappy with the provisions, said DiSclafani. “The Higleys were contending that I led them to believe that the check was an approval of the farm stand — but it’s patently not true. They brought friends to public hearings who were convinced the town’s goal was to close Mr. Higley down. That wasn’t the case at all. We had created a committee that worked on drafting a new law. The town was not wanting to shut down a business and lose jobs. After I had spoken to another attorney and town councilmen, I thought it was better for town to eat the legal costs associated with working on the new law. The board voted to send back the $2500. Twice I tried to send it back, and it was returned uncashed. So I considered it a donation to the town.”
“They tried to give the check back a year later,” confirmed Higley. “Our attorneys advised us not to return it because we had an agreement.”++