Splitting Hairs to Deny a Potentially Life-saving Home Improvement
ADIRONDACK PARK AGENCY STOPS ELDERLY MAN FROM BUILDING CARPORT
An "Extension" to the House would be Legal, but an Attached Carport is Denied
By Carol W. LaGrasse
Dick and Laura Willemin live in a quaint little blue and white frame house squeezed between Friends Lake and a winding highway in the town of Chester in northern New York. It isn't so picturesque, however, during winters in the Adirondack Mountains when they have to trek 150 feet across the road to their garage to reach their car.
Mr. Willemin, who wears a pacemaker for a more severe version of the same heart condition afflicting Vice President Dick Cheney, thought that the solution would be to roof the little paved parking area adjacent to his house, so that he wouldn't face the problem of his garage being blocked by snow during the winter.
In 1996, he and his wife applied to the Adirondack Park Agency (APA) for a variance from the rules requiring a setback of fifty feet for accessory structures from lake shores. The APA is a governor-appointed regional zoning agency controlling land use within the 6-million acre Adirondack "Park," which is comprised of approximately half government-owned and half privately owned land. They asked for the variance on the basis of a medical condition that necessitates immediate access to a vehicle in case of an emergency.
After the application for the small 22 ft. by 22 ft. garage languished for several years, the APA held a public hearing in November 2000. The record of the case expanded to approximately two inches thick. Mr. Willemin had to argue with the APA to include some of his key exhibits and the written statement of his final arguments in the formal hearing record.
The little project has now come to a standstill, even though the local town had already given the Willemins a variance. Two sets of APA bureaucrats have come up two different recommendations, neither of them fair. The hearing staff recommended granting the variance on condition that the carport be removed after the Willemins no longer reside in the house! The executive staff simply recommended denialon the grounds the application did not meet the legal test for "practical difficulty" necessary for a variance!
"Both staff opinions rested on the definition of a garage as an 'accessory structure,' which requires a variance from the fifty feet statutory shoreline setback, rather than as a lateral expansion of a single family dwelling which would be non-jurisdictional as long as it is no closer to the shoreline than the pre-existing building," according to the May 2001 issue of the Adirondack Park Agency Reporter, an independent newsletter published by Susan Allen in Keene Valley, New York.
The Adirondack Park Agency commissioners' meeting on May 10-11, 2001 brought the thinking of the agency members into focus. The agency is theoretically comprised of eleven members, but Governor Pataki has kept one of the seats vacant, leaving only ten members. Unfortunately for people applying for approval of their projects, the seat that the governor has been leaving vacant is one that the APA Act requires be given to a local resident. Since one of the seats which was intended to be sympathetic to the local people is vacant, it is even more difficult to obtain approval from the agency than otherwise. In addition, the law requires a majority vote of the full eleven-member commission to accomplish approval of an application. This means that Dick Willemin faced the challenge of obtaining six of ten votes from a potentially hostile commission.
The debate about his variance application went on interminably. Rather than toeing the APA's ultra-strict party line, the official representatives of the New York State Departments of State (DOS) and Environmental Conservation (DEC), who sit on the commission, leaned toward the idea that the project should have been considered non-jurisdictional.
"It struck me as a big benefit to applicants, and would appear to have no environmental impact, or very little. It would be authorized in a different form if it were an addition to a single family dwelling," said Stuart Buchanan, the representative of DEC. "So if there's a way to accommodate it, it seems like one of those common sense things we should try to achieve, because, again, this is one of those black eyes that sure would be nice to avoid."
After suggesting options to enable the project to get successfully through the agency's bureaucracy, Richard Hoffman, who represents the DOS, pointed out, "The carport is open, so you can see through it, it's farther from the shoreline, there's a vehicle already parked there. There are zero adverse consequences. It's a matter of seeing that substantial justice is done."
Other commissioners revealed their thinking.
"My heart goes out to him, I wish we could find some way to accommodate him. I'm not willing to change the law. The next man or lady comes along and it's an awful hard result but it's a very dangerous road," said Commissioner William Kissel, a lawyer who has published professional journal articles favorable to the APA. Later he voted to deny the variance.
"Sounds like this carport will also have to be plowed, so I don't see how this helps his problem," said Commissioner Katherine Roberts. Ms. Roberts, a teacher and school principal who has served on the board of directors of the wealthy Hudson Highlands Land Trust, is a Putnam County neighbor of Governor Pataki.
Commenting at length, Commissioner James Frenette, who is a retired local county official, came to the heart of the debate, saying, "He says he can build a bedroom and bathroom on a non-jurisdictional basis, but can't run the roofline out and make a carport. It boggles the mind to say he can't do it. The threat to the environment seems to be the legalese."
Richard Lefebvre, the chairman of the APA Commission, disputed the charge that denying the application would be a black eye to the agency.
"I don't think you duck black eyes if your conscience dictates, it can be a sign of courage in upholding the law," he intoned, adding that Mr. Willemin could go back to the staff for a different approach. "I don't find practical difficulty," he said. Mr. Lefebvre, who is retired from public education, represented Governor Pataki in the first delegation to the Italian Abruzzo Park, which the APA "twinned" to the Adirondack Park to promote wolf reintroduction in New York.
Joseph Rota represents the Local Government Review Board, a monitoring agency that was created in 1973 in a compromise to pass the APA Act. He has no vote on the APA commission, but is allowed to participate in the debate.
"There's no canon of law being violated, there's no degradation of the environment, there's the health and welfare of an individual at stake here. Value of rapid medical attention, it's important to consider. A carport is less visible than a bedroom," pleaded Mr. Rota. "Allow him to live out his remaining days with peace of mind, the Town and neighbors have helped him. Anything else is mean-spirited, time for the APA to show some humanity. It will not be a black eye of courage."
According to the APA Reporter, five commissioners voted for denial of the variance in a roll call vote: Lefebvre; Kissel; Roberts; James Townsend, a lawyer in Rochester; and Cecil Wray, a Manhattan corporate lawyer with a second home in Pataki's town of Garrison. Five voted for approval of the variance: Frenette; Hoffman; local town official Frank Mezzano; Richard Wild, who represented the DEC the second day; and George Kazanjian, who represents the Department of Economic Development. Since the motion needed six votes to carry, it failed 5-5.
Mr. Willemin decided to press his case without compromise. On July 3, he sent a formal appeal of the decision of the APA commissioners.
"I do not seek the more 'liberal' of the two Staff recommendations, namely the temporary carport. Rather, I seek recognition of the applicability of Reg. 575.5(b)2 and a letter of non-jurisdiction," he wrote, referring to the section of the APA regulations dealing with their non-jurisdiction over additions to dwellings.
"This has been our main cry and was totally ignored in the case summary which staff provided to the commissioners, - even after I complained that staff had omitted any reference(s) to it." he continued.
In his short letter appealing the commissioners' decision, he pointed out the battle he had experienced getting his formal exhibits placed in the hearing record.
"In my closing briefs I made the case that 575(b)2 should apply, but I have no confidence that my arguments reached the commissioners," he wrote. "When you had proceeded to omit so many hearing exhibits from the file, I must now wonder about the briefs."
But the APA's treatment of Dick Willemin is unremarkable in the light of the agency's record. And even if the commissioners relent, how can they justify the five-year holdup of an application for a little carport from an elderly man in need of less risky winter access to his car?
- Carol W. LaGrasse
July 9, 2001
Note: Appreciation is extended to Susan Allen, publisher of the Adirondack Park Agency Reporter, for the verbatim quotations from the May 10-11, 2001 APA meeting.