Farm market or supermarket? Town will ask court to decide

A new market that opened this fall on a Main Road, Jamesport farm will be the subject of legal action by Riverhead Town if a resolution on tomorrow night’s Town Board agenda is approved.

According to town officials, the operation of the Glass Greenhouses Farm Market, which opened in October, does not comply with the town zoning code. Riverhead officials say the use established by the owner, Walter Gabrielsen of Jamesport, goes beyond the definition of a “farm market” and is instead a retail store. Retail stores are not permitted in the rural corridor zoning use district where the market is located.

But the 12.4-acre farm where the 4,620-square-foot market was built is also located in a state-certified, county designated agricultural district. Farm operations located in agricultural districts are protected by state law, which says local governments cannot “unreasonably restrict or regulate farm operations within agricultural districts” unless the operations threaten public health or safety.

Since Gabrielsen’s site is in an agricultural district, the state Department of Agriculture and Markets, authorized to enforce the protections of the state agriculture and markets law, is interested in the matter. The agency’s agricultural protection unit has been reviewing the town’s actions and corresponding with the supervisor and other town officials since September 2011, shortly after Gabrielsen first submitted a building permit application to the town.

The state agricultural protection unit in November 2011 concluded that Gabrielsen’s farm market is a permitted use accessory to his farm operations. State officials objected to the Riverhead building department’s conclusion that Gabrielsen’s plans would require site plan review — a process that the state considers unreasonably restrictive of farm operations.

A streamlined site plan review process is allowed by the state, however, and that’s what Gabrielsen’s plans then underwent. The planning board approved the Glass Greenhouses Farm Market site plan by resolution 2012-23, dated March 1, 2012.

Gabrielsen obtained a building permit for a commercial farm building “to be used as a ‘Farm Market'” on Sept. 27, 2012. He also obtained county health department permits for a commercial kitchen. A temporary certificate of occupancy was issued by the town on Oct. 4, 2013. Good for 60 days, the temporary C.O. is now expired.

“If this is farming, then we don’t have the ability to stop a supermarket from going anyplace in this town,” Riverhead Supervisor Sean Walter said in an interview Friday.

“It’s stunning. It’s beautiful,” Walter said of the building, located at 1350 Main Road in Jamesport. The supervisor said he’d been inside the building last week for the first time since it opened in October.

“But when you walk in there, it’s a supermarket and a bakery and it’s not permitted in this zoning district,” he said. “What I just saw, maybe 25 percent could be coming from his farm. But all the other stuff you see is typical of, like, a 7-Eleven,” Walter said.
The state Department of Agriculture and Markets “is basically telling us we don’t have the jurisdiction,” Walter said. “Then there really is no town zoning.”

In letters to the town, the state agency has said Gabrielsen’s farm market would be used to sell “onsite greenhouse and orchard grown produce and fruit, as well as free-range chickens, eggs and fresh honey.” The agency noted that the town’s own zoning code allows a “farm market” to sell “enhanced agricultural products and handmade crafts.”

Gabrielsen said Saturday word of the town’s intention to commence legal action against him “came as a complete surprise.”

The town issued a temporary C.O. Oct. 4, pending an amended site plan showing a handicap ramp and a porch that was not shown on the first site plan, Gabrielsen said.

“We were told at a meeting with building and planning officials on Oct. 15 that this was just an administrative matter and once the amended site plan was approved, we’d get our permanent C.O. We filed the required 12 copies of the amended site plan and paid the $500 fee,” Gabrielsen said.

“We never heard anything further,” he said, until town attorney Bob Kozakiewicz requested a meeting onsite.

Kozakiewicz, accompanied by three members of the town’s farmland advisory committee and two members of the Planning Board, visited his market and met with him there earlier this month, he said.

“At the meeting the farmers and Planning Board members were in agreement that the farm market was a great asset to the community and was a big inspiration to the farming community at large,” Gabrielsen said.

Following that meeting, he said, it was his understanding that a permanent C.O. would be issued. Gabrielsen passed that information on to state regulators and the following day the director of the division of land and water resources at N.Y. Ag and Markets wrote to Kozakiewicz to say the department was glad a permanent C.O. would issue and would close its file on the review of the Gabrielsen application.

In an interview Friday, Kozakiewicz said he didn’t understand how Gabrielsen thought town officials agreed to issue a permanent C.O. That was not the discussion, he said, adding he was surprised by the letter from the state to that effect.

Gabrielsen, whose brother, George, is a member of the Riverhead Town Board, said Saturday he’s written to town board members asking them to table the resolution authorizing legal action so that they could meet with him and with representatives from Ag and Markets in the hope of resolving the dispute. [Councilman George Gabrielsen, who operates a farm across the road from the Glass Greenhouses, said he has recused himself from all discussions of his brother’s property and plans to abstain from any vote that might be taken by the town board Tuesday night.]

“I have six children working on my farm. We’re just trying to survive,” Walter Gabrielsen said.
But to the supervisor, there’s a bigger issue at stake.

“What is the future of farming?” the supervisor asked. “That is the fundamental question here. Because if it’s this, then the local municipality has lost all land use control to N.Y. State Ag and Markets,” he said.

“As town supervisor, I have to uphold the rule of law. This is a retail use and a retail use is not permitted in this zone,” Walter said.

“A court of law is going to have to decide whether the town or the state controls land use within the local municipality,” he said.

RiverheadLOCAL photos by Peter Blasl