March 2002:
Walt Olsen’s Property in Limbo, Tax Foreclosure and Land Trust Hover
Long Island Pine Barrens Lawsuit Argued In Albany County Court
Judge Malone Probes “Unequal Treatment” Issue
By Carol W. LaGrasse
Walter H. Olsen, Sr., is one of over 2,000 small property owners in the Pine Barrens on eastern Long Island whose land has been designated as part on an undevelopable “core area.” In June 2001 he brought a lawsuit that tackles several complex issues and takes on a veritable “who’s who” of defendants. On March 15, Judge Bernard Malone held the first hearing on the case in Albany County Supreme Court. When Judge Malone queried lawyers for the plaintiffs and defendants, he focused particularly hard on one issue, that of unequal treatment of various property owners.
The Long Island Pine Barrens Commission administers land use in the Pine Barrens and polices the undevelopable 50,000-acre core area which was preserved as a result of the official plan drawn up to implement the state’s 1993 Long Island Pine Barrens Protection Act. Perhaps the boldest point in Mr. Olsen’s lawsuit is that the commission is an illegal and unconstitutional entity. But the lawsuit also argues that the agency has never issued regulations to provide a system of compensation and appeal for landowners. Fundamental constitutional issues revolve around the issue of regulations.
At one point in the hour-long arguments before Judge Malone, Sheila Galvin, one of the plaintiffs’ attorneys, responded to a criticism that the lawsuit was too late. She argued that the plaintiffs couldn’t proceed forward in the usual timely manner to seek relief because the commission itself had no ability to deal through regulations because there were none.
The plaintiffs, led by Mr. Olsen, were caught in a “Catch-22.” They were never compensated by the commission for the zoning of their land for zero economic use, according to the papers filed in the lawsuit. But there was no system under which to appeal because the regulations from the illegally constituted agency were inherently null and void.
Instead, Ms. Galvin argued, “Based upon statements made at the commission by members of groups there was indication they would not be able to pay [for some properties.]”
She continued, “Twenty-five percent of the property owners were segregated and distinguished in the way that they were treated by the commission.”
“In what way?” asked Judge Malone.
Ms. Galvin replied that 25 percent “were identified not to be compensated.” They were doomed to lose their land through tax foreclosures and the like, she said. They were given no assessment reduction even though they could make no use of their land. They were coerced to make a gift of their land. From the outset, there was no effective compensation offered, even as TDR’s (transferable development rights). No cash compensation was offered, she said.
The judge asked, “Are those the plaintiffs in this case?”
“That’s correct, your honor,” she answered.
“What were the tax delinquent properties?” asked the judge.
“I can provide this information,” answered Ms. Galvin.
“What were the ways to acquire the properties without compensation?” asked the judge.
“Tax foreclosure is one method,” answered Ms. Galvin. “Also, they seek, through government and non-government acquisition, contributions. Some of our clients have been solicited by The Nature Conservancy to donate land [for them] to donate back to the state. Another [way] is just donate to the State.”
The judge asked, “Do you know what people you represent were not to be compensated and to gift their land?”
“Without discovery, we cannot determine this,” Ms. Galvin replied. “Our people, the small property owners, would not add a large block of land, but when added to surrounding parcels would be incorporated into the core area.”
Later in the discourse, Ms. Galvin argued, “There is a question of whether the commission has any ability to act without regulations promulgated under SAPA [the State Administrative Procedures Act].”
When the Assistant Attorney General Lisa M. Burianek again took the stand in defense of the State respondents, Judge Malone asked, “Do you agree that these are taxpayers whose properties are not being sought by the commission?”
“No,” answered Ms. Burianek. “We’re starting to stray into factual matters that should go before the court.”
“The commission is doing this by a voluntary basis,” she said.
“Is it the position of the State respondents that the commission has notified every property owner that they offer to buy their property?” asked Judge Malone.
“Yes,” answered the assistant attorney general. “In addition, they have The Nature Conservancy to make offers.”
But during an interview after the hearing, Mr. Olsen said, “I never received an offer from The Nature Conservancy.”
“The allegation that the plaintiffs have been targeted is incorrect,” the assistant attorney general continued in court. “The 75 percent goal is a goal.”
She pointed out that these allegations that the plaintiffs who have come to court have been targeted have to be proved by particular facts. She pointed out that the commission has given 42 hardship permits for people who want to develop their property.
However, when the plaintiffs’ lead attorney, James E. Morgan, took the stand for the third time, he pointed out that from the original 3,600 private properties, only 54 approvals have been given from 1993 to date. “They don’t tell you the number of applications,” he said.
Then he returned to the unequal treatment issue. “The parties who are plaintiffs are surrounded by properties at higher sales [prices] than our clients have been offered.”
Timothy J. Hopkins, the general counsel for the Suffolk County Water Authority, which is also a respondent, took part in all the arguments.
“Nowhere in law was 25 percent, or 75 percent set out. Seventy-five percent was established as a goal,” said Mr. Hopkins. “The reason was they didn’t want the rest to be [purchased]. They would use Transferable Development Rights...The goal was so that they’d acquire as much as possible.”
“If in any event their application was denied, they have to go to the commission,” he argued. “In order to receive compensation, they have to go through the process first.”
When the floor returned to Sheila Galvin, the argument went full circle “There has to be a process before they can go through a process,” she said. “The language was very clear with respect to establishing regulations.”
“1993?” asked Judge Malone.
“1993,” answered Ms. Galvin.
Judge Malone asked, “Is it that there are no permanent regulations, is this your position?”
Ms. Galvin replied, “Interim regulations continued through adoption of the plan. The regulations cease when the plan was adopted.”
“Once the plan was adopted there was no mechanism to apply to, no process. The fact that the commission has continued is irrelevant,” she emphasized.
During the later part of the hearing, the judge decided, “The court denies the motion for summary judgment.” He continued, “The court will give an opportunity to be heard.” The plaintiffs had overcome one hurdle. At the end of the hearing he reserved decision on other aspects of the case, such as discovery.
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