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Essex road dispute goes to court: Town of Essex fails in first attempt to force changes PDF Print E-mail
Written by LOHR McKINSTRY, Staff Writer   
Thursday, April 05, 2007

ELIZABETHTOWN — The Town of Essex lost a bid Wednesday to force the Lewis Family Farm to unplug a culvert and lower the height of a farm road the town says could cause flooding.
State Supreme Court Justice Mark Powers ruled for the Lewis Family Farm Inc., owned by Sadim "Sandy" Lewis, and denied the town's request for a preliminary injunction.
The town is suing the Lewis farm to compel it to alter a farm road that is higher than the town's adjacent Cross Road.
Powers said the town's request for an injunction didn't meet required legal criteria that included showing irreparable harm would occur without immediate action.
The evidence was "not sufficient to issue drastic relief," Powers said. "Those matters are going to have to await a full trial."
He set 10 a.m. Wednesday, Sept. 12, for the trial to start.
In the meantime, Lewis's attorneys and the town will try to negotiate a settlement.
"If we can work something out, that's what we've wanted from day one," Essex Town Supervisor Ronald E. Jackson said outside the courtroom.


FLOODING CONCERN

In court, Jackson testified that the Lewis Family Farm covered a culvert when its farm roads were built last year and that water could back up and cause flooding.
"The flooding issue (is that) heavy water through the culvert would flood the road. That whole area would become unsafe for traffic."
He said the farm road was built about six feet higher than Cross Road, at one point, and that could cause snow to accumulate on the town road.
If that happened, he said, "only our front-end loader could plow Cross Road. The road might be closed. A school bus uses that road."
But contractor Todd Deyo of Plattsburgh, who built the Lewis farm roads, testified those roads were built higher to prevent wollastonite-laden runoff from town roads from getting to farm fields.
The town uses wollastonite tailings provided by NYCO Minerals of Willsboro as a coating on its dirt roads, and Deyo said the chemicals in the tailings could affect the certified-organic-farm status of the Lewis Family Farm.
The 1,200-acre farm produces organic grains, hays and soybeans.
"They (Lewis) wanted to impede the drainage to the farm," Deyo said. "There was nothing that grew" where wollastonite got into the fields.
Wollastonite tailings include garnet and calcium-based diopside, Jackson said.
Deyo said the wollastonite doesn't stay on the roads on which it's placed.
"It washes downhill. There's no consistency to it."
He said he used crushed stone to build the farm roads between July and December 2006.


BLOCKED CULVERT

There was also a difference of opinion between Jackson and Deyo on how the culvert had been blocked, with Deyo saying it might have been wollastonite runoff, not his work.
Attorney Joseph Brennan of Glens Falls, who represented Lewis, said that, since Deyo indicated the "town itself has blocked the culvert," no order to force Lewis to unblock it was needed.
Deyo said about 35 feet of separation exists between the town road and the farm road.
"The higher elevation was selected because, if we didn't raise the farm road, the town road would still spill (wollastonite) over the farm road into the field," Deyo said.
The town has been using wollastonite on its dirt roads for years, Jackson said, and the substance is on the State Department of Environmental Conservation-approved list.
"Water flowed out into the fields for many years" containing wollastonite and wasn't harmful, said Town Special Counsel Darrell W. Harp of Clifton Park.


NO INJUNCTION

In the end, Justice Powers said there's no way to know what would happen during a storm due to the higher farm road and blocked drainage.
"There's been very little expert testimony, if you want to call it that. I'm going to deny the request for a preliminary injunction."
In a separate lawsuit, Lewis is suing the town to stop it from using wollastonite to maintain its roads. That suit will be heard later this year.

 

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