My name is Carol W. LaGrasse, and I am a full-time resident and property owner in the town of Stony Creek. I am a retired Stony Creek Town Councilman, having served 9 years in office. A licensed professional engineer, I have practiced sanitary (environmental) engineering, structural engineering, and many other areas of civil engineering. As a student of the history of Stony Creek, I have edited and co-authored the book, An Enduring heritage-A History of Prominent Buildings in Stony Creek Center. In addition, I am founder and president of the Property Rights Foundation of America, a nonprofit, national, grassroots corporation based in Stony Creek and dedicated to the preservation of private property ownership and the enhancement of private property rights to their fullest extent, as guaranteed in the United States Constitution.
Today's public hearing represents a great concern because of the situation we have reached where an applicant to the APA for a permit to build an individual single family house on a large 7.9-acre plot of land in Stony Creek has been forced to undergo the extreme cost of submitting to a formal hearing process and possibly acquiesce to unjust, extra-legal requirements that increase his costs of construction, as well as infringe on the practicality of use and enjoyment of his beautiful private property.
Today I am going to confine my remarks to the issue of the scoping of the hearing process to follow this public hearing and to a few points about the history of the pristine. Various issues have been repeatedly raised by a single neighboring property owner who has written that he would like to buy the property, and others who are repeating his concerns, people who have property either along Lens Lake Road, or people within the Livingston Lake Club, located beyond the end of Lens Lake Road in the township of Day and south of Lens lake, and for which that one neighboring property owner is, I understand, the local representative, or people who belong to the Greenhaven Hunting Club, which is also located on Lens Lake Road. Nearly every letter from the Livingston Lake Club and Greenhaven Club members is a pre-typed form letter. Three other similar letters have been received by the APA from Stony Creek individuals, one of whom is closely connected to an employee of the aforementioned neighbor and one of whom is a DEC employee. The same issues that the particular neighboring property owner has raised have been raised by the Adirondack Council and the Association for Protection of the Adirondacks, environmental groups who advocate for extreme preservation within the Adirondack Park. In addition, the staff presentations at the Adirondack Park Agency meeting on August 9 to 10, 2001 emphasized certain issues generally in common with those in the letters, and advocated that a public hearing be held.
I am going to speak about whether to consider within the scope of project issues the issues of visibility of the proposed house from the town highway (Lens Lake Road), Lens Lake, and Spruce Mountain, and very briefly about the evidence required to establish validity to the repeated, unproven allegation that the Lens Lake shoreline was never developed.
In 1990, an intense controversy arose in the Adirondacks when the Commission on the Adirondacks in the Twenty-first Century appointed by Governor Cuomo completed a document called "The Adirondacks on the Twenty-first Century." The Twenty-first Century Commission, with Peter A. A. Berle as its chairman and George D. Davis as its executive director, issued 245 recommendations for legislation and policy changes to strengthen the preservation of the Adirondack region. This report was written by numerous experts in the current law and policy, making recommendations for changes in law and policy. Although several bills were submitted to enact these recommendations and although subsequently a substantial part of the land acquisition goals are making strides, no laws were passed to implement the land-use restrictions or aesthetic goals contained in the Twenty-first Century Commission report.
The report takes detailed cognizance of the various land-use categories and makes recommendations for each as well as across-the board recommendations, as follows in part:
"Siting and performance Standards" (pp. 75-76)
"Though the Adirondack Park covers a vast area, fully one-fifth the total area of New York State, the impression most people get of the Park is limited to views from the roadsides and lakeshores.
"The state should make these views as attractive as possible by setting aesthetic standards as well as standards of activities so as to protect air and water quality, shorelines and biological resources." (emphasis added)
After several recommendations of "General Development Principles," the report turns to specific "Aesthetics," beginning with:
"Aesthetic standards - matters of taste, what is pleasant
to see or hear - are difficult to agree on, yet it is for aesthetic
reasons that so many people live in or visit the Adirondack Park.
They seek the splendid views, the peace of the woodland setting,
the hamlets' friendliness, the solitude of a canoe drifting in
"In harmony with the spirit of the Park, buildings should be screened and set back from roads and lakeshores and they should blend in with the natural background..."
"164. New construction outside of hamlets should be screened from transportation and recreational corridors by indigenous vegetation. Where screening will not preclude visibility, a setback of 200 feet from the edge of the corridor should be required. Because topography, setback and vegetative buffers may not preclude visibility in all cases, standards to minimize visual impacts should be developed and may include standards on roof color, exterior materials and visibility against the skyline." (emphasis added)
The section on "Shorelines" of the Twenty-first Century Commission report (p. 81) contains clauses of interest in recommendations 184, 185, and 187:
"184...No shoreline development should be permitted in rural use or resource management areas."
"185. All structures should be set back at least 200 feet from shorelines."
"187. To minimize the visibility of lakeshore development and protect water quality, no trees shall be cut within 200 feet of a shoreline, except for a path up to five feet wide and designed to minimize visibility of structures. Owners of shorefront property outside hamlets where cutting has already occur(r)ed should be required to replant the area between the existing structure and the shore with indigenous trees and shrubs by the year 2000 to minimize visibility of existing structures." (emphasis added in the preceding three references)
The Twenty-first Century Commission report also espoused restriction of development that could be visible from hiking vistas. This aspect of the report relates to the issues that has been raised to protect the view from Spruce Mountain, with the further possibility discussed by preservationists that this is of critical importance if a state trail is developed. In that same part of the Twenty-first Century Commission report on "Siting and Performance Standards" is a set-out box of unnumbered recommendations under the heading "Examples of performance Standards." One recommendation is "No development in areas visible from scenic vistas." (p. 76)
This general recommendation is matched in the chapter of the report dealing with "Creating Greenways on Rivers, Trails and Road Corridors." Speaking about creating a system of greenways to prevent development along river routes, bicycle trails, hiking trails and trails of every description, one paragraph of the report states, "The Park should be known for this greenway system. Such a system could be designed to welcome the visitor...It could protect the vistas and stem the encroachments..." (p. 87)
These Twenty-first Century Commission proposals for legislation were delineated further in the Robert Glennon (APA Commissioner at the time) bill that sat in the legislature from 1990 through '91, but, like all the other less radical bills that were drafted during those years, failed to go anywhere because of the opposition of citizens of the Adirondack region. These proposals for setbacks, invisibility, and reduced visibility of structures from highways, waterways and vistas failed to pass the legislature.
When the Adirondack Park law was passed in its final form in May 1973, the preservationists were not completely successful in their goals sought at the time to restrict land along highways. The debate between then-Adirondack Assemblyman Glenn Harris, the Majority Whip, and Governor Nelson Rockefeller sheds light on one area where the idea of controlling the aesthetics of views from highways was held in check. Harris was instrumental in obtaining hundreds of concessions from the proponents of the APA law.
The original form of the APA law in March 1973 had the following clause for Class A Regional Projects under "critical environmental" areas in "Resource management" areas. (Resource Management is the strictest APA law land-use classification.)
"e. All land uses and development and all subdivisions
of land located within the following critical environmental areas...
(p. 70, l. 21-23)
"(e) within six hundred sixty feet of the edge of the right of way of federal or state highways." (p. 71, l. 2-3)
Assemblyman Harris worked hard to amend this bill. He succeeded.
These clauses, which I copied from his own personally initialed
copy of the bill (which is carefully preserved to this day), did
not become law.
The Assembly amendment proposal stated that on:
Page 7l, line 2 - "Delete 'six hundred sixty'
insert three hundred"
Page 71, line 3 - "after the word 'highways'
insert , except for an individual single family dwelling and accessory uses or structures thereto" (page thirteen)
The final APA law incorporated these changes, and retains these same Glenn Harris amendments to this day.
The original form of the APA law also classified the following uses in "Resource management" areas as "critical environmental areas":
"e. All land use and development and all subdivisions
of land located within the following critical environmental areas...(p.
70, l. 21-23)
"(f) within six hundred sixty feet of the edge of the right of way of county highways designated as major travel corridors by rule or regulation of the agency..." (p. 71, l. 3-6)
The Assembly amendment proposal stated that on:
Page 71, line 4 - "After 'within' delete 'six
insert three hundred"
Page 71, line 8 - "After the word 'program' insert
, except for an individual single family dwelling and accessory uses or structures thereto" (page thirteen)
The final law incorporated these changes and these clauses remain the same, with the same Glenn Harris amendments to this day.
These historic documents which I have quoted, directly demonstrate the intent of the legislature to specifically exclude APA jurisdiction in Resource Management areas over individual single family houses with respect to their visual impact on federal and state highways, and on county highways designated as major travel corridors. There were no other clauses in the initial bill that could be applied to grant APA jurisdiction over visual impact of individual single family houses on highways.
Because the Resource Management land-use class is the strictest class, and because the visual impact of land uses along federal and state highways and the county highways designated as travel corridors was considered as more, not less, critical, then the visual impact of land uses along county highways that are not designated as travel corridors and along town highways, the conclusion is that there was no intent to grant the APA jurisdiction over the visual impact of individual single family dwellings from any highways, including town highways.
The APA does, however, have jurisdiction over a single family dwelling in Resource Management lands within towns such as Stony Creek that have no APA-approved land-use plan, because the single family dwellings are classified as Class B Regional projects.
However, the APA jurisdiction over Class B Regional Projects does not bring in the APA power to regulate visual impact of an individual single family dwelling from a town highway. Under the APA law, Class B Regional Projects are less critical projects than Class A Regional Projects; they come before the APA only if the town has no APA-approved land-use plan. It is outside the law (illegal, or "ultra vires") for the APA to assert a criteria for review that was already rejected by the legislature for the most strictly regulated category of project, Class A Regional Projects.
Therefore, in view of the absence of any power defined in the APA law to regulate visibility of individual single family houses from highways, and in view of the evidence of the Twenty-first Century Commission attempt to establish new APA powers to control and eliminate visibility of houses outside of hamlets from roads (an expert commission that knew that the statutory power did not exist), and in view of the clear legislative intent to exclude APA power to evaluate visual impact from roads, neither visual impact from a highway, nor the setback and shielding by trees, etc., should be considerations for project review for a jurisdictional single family house.
Returning to the topic of visibility from the lake, and the setback from the lake. These topics are clearly detailed in the APA law. It is ultra-vires for the APA to impose conditions that are stricter than the specific requirements of the law. As in the issue of view from the highway, letters and testimony requesting stricter setbacks and clearing restrictions should be dismissed as irrelevant to the project review.
Under Section 806.1.a , the APA law states that for the shorelines of lakes:
"(2) The minimum setback of all principal buildings and accessory structures in excess of one hundred square feet, other than docks or boathouses, from the mean high water mark shall be...one hundred feet in resource management areas."
The same section of the law dictates an affirmative right for the property owner to cut vegetation, including trees, along a shorefront:
"(3) The removal of vegetation, including tress, shall be permitted on shorefront lots provided the following standards are met: (emphasis added)
"(a) Within thirty-five feet of the mean high-water mark not more than thirty percent of the trees in excess of six inches diameter at breast height existing at any time may be cut over any ten-year period.
"(b) Within six feet of the mean high-water mark no vegetation may be removed, except that up to a maximum of thirty percent of the shorefront may be cleared of vegetation on any individual lot..."
(Needless to say, the clearing performed in the last year or two on the Lens Lake Road parcel belonging to Cold Brook Properties, is a tiny fraction of the legally permitted clearing. I inspected this clearing last week myself, and can personally attest to this statement and to the tiny extent of recent clearing, which is, in fact, not clearing at all, but cutting and removal of brush in a small area and a number of small and medium trees among larger trees remaining, all in the same small area.)
The Twenty-first Century Commission goals for invisibility and extreme setbacks from shorelines contrast starkly with these reasonable restrictions in the APA law. The APA law governs, not the proposals of the Twenty-first Century Commission, which were roundly defeated, amid great controversy, ten years ago. Neither the APA, nor neighbors, nor hunting club members, nor wealthy lodge owners, nor the very environmental group that precipitated the Twenty-first Century Commission report, and then fought doggedly with all their wealth and the vast wealth of their environmental group allies, have the say on setbacks and visibility from lakeshores in the Adirondacks. The law controls.
I urge that the desire of interest groups to impose an ultra vires standard of invisibility from lake shores not persuade the court to allow them to bring their arguments for invisibility from lake shores into the scope of issues considered by the Administrative Law Judge.
Finally, the APA law has no requirements or standards for views from trails on mountaintops, and has no requirements for invisibility of houses from mountains. The preservationists sought these changes through the Twenty-first Century Commission to "protect vistas" from greenways (p. 87) and failed. It is still legal for someone to build a house that is visible from a mountaintop, from a state-owned mountaintop, and from a state trail on a state-owned mountaintop. Issues about visibility of a house from mountains should not be allowed within the scope of the hearing before the Administrative Law Judge.
Considering that issues may be developed or considered for testimony that the shoreline of Lens Lake was never disturbed except at the dam, I'd like to share some historical knowledge and site observations. No testimony should be allowed that the shoreline of Lens Lake was never disturbed except at the dam unless the party present sworn testimony accompanied by valid historical evidence to substantiate his or her assertion. (For Stony Creek in Warren County, much primary evidence is readily available, such as the 1876 Beers Atlas and other maps (both earlier and later), the deed chains, the assessment records, the New York State agricultural censuses for the latter part of the Nineteenth Century, the regular State and Federal census records, church records, other primary and secondary sources of information, both located here in this county and elsewhere.)
Landowners along Lens lake Road have made empty assertions that the land around Lens Lake has never been cleared. In a letter in opposition to the construction of this house (of which I received a copy just before this hearing in response to my Freedom of Information request), a property owner along Lens Lake Road states, "One can stand on our shore line property and view the magnificent splendor of a lake as old as time." (emphasis added. Jim Washburn and Donna Maloney Washburn letter of Sept. 9, 2001 to Mitchell Goroski, Senior Attorney, APA)
As an amateur historian who edited and co-wrote a book about the architectural history of part of Stony Creek, which touched inadvertently on the entire town's development and decline, I am aware that current forest patterns are not representative of historic land uses. Much of the town, including areas far from Creek Center, was covered with subsistence farms of very intensive land-use. In the middle of the nineteenth century land was cleared, some of the relatively "level" land turned to cultivated crops, with the sloped hillsides turned to large pastures, with relatively small woodlots for fuel retained as forest. (In the western part of town, much land was simply used for wood and hemlock bark harvesting.) The town had a widely dispersed population of double the present level.
Lens Lake Road has the obvious evidence of the days when the current parcels of land, most roughly the same configuration as presently (except for the feature I'll discuss), served different purposes than the two minor uses of today, summer and year-round residences with no land-based production. A relatively large cemetery currently maintained by the town contains many graves of people who once populated the Lens Lake area. When I was on the town board, we revitalized the cemetery there in response to descendants of the many Stony Creek people buried there. The substantial building that was once the Methodist Episcopal Church and still stands on the corner of Lens Lake Road attests to the population who went there every Sunday to worship in such numbers that the church in Creek Center was able to expand with a satellite church in the population center up in the Lens Lake community. The schoolhouse where the Rea residence stands today served the community's local children. A second, later schoolhouse was on the road to the cemetery, I was told, and still stands.
Where did all these people farm the land? Part of the answer to the question is found in the record that there was much more land. Lens Lake was much smaller than today. The 1876 Beers Atlas shows it about one-third or less the current size. This stands to reason hydrologically, considering the natural elevation of the base of the spillway. The shore of Lens lake was far from the current shoreline. The current shoreline was artificially created by damming the outlet stream after the lands were developed for farming. In the past, all over Stony Creek, water power needs resulted in the damming of streams. At Lens Lake the outlet was dammed, probably with the resultant fluctuation of the lake level, perhaps to meet power production needs for a small factory or to release logs to float them to sawmills. Very recently, the State of New York Department of Environmental Conservation replaced a wood dam with a substantial a concrete dam with a fixed spillway elevation at the lake outlet, establishing the spillway level about eight feet above the outlet creek bed (and leaving the creek bed dry for the latter part of the summer this year).
The Lens Lake shoreline is not pristine. The forest growth is second growth, at the oldest, and the shoreline itself is a new feature, resulting from the flooding of developed farmland. It may be beautiful, but not pristine. If a lake with such a small supply of water like Lens lake, one which cannot even support trout, has "unique" biological features, that is only proof of the resilience of natural systems or, perhaps, proof that there is something beautiful, able to be alleged as "unique" even in the most deficient biological systems.
In 1990, my husband Peter and I dropped much of our lives to fight the Twenty-first Century Commission legislation and the Environmental Quality Bond Act for land acquisition in the Adirondacks. Our land was not cross-hatched for acquisition on the Commission's official map, but the land on Lens Lake Road and the Livingston Lake Club were. We fought for the right of our neighbors like the Greenhaven Club members, Livingston Lake Club members and people like Bill Hutchens to keep their land...Bill Hutchens was an active opponent of the proposals as spokesman for the wealthy Adirondack Landowners Association. I am still volunteering full time to fight for private property rights and the tradition of private land ownership.
The law publication of Peter A. A. Berle, the head of the Twenty-first Century Commission, blamed the New York Farm Bureau's work and the publicity associated with the lawsuit that my husband Peter and I created for the defeat of the bond act. The proposals of the Twenty-first Century Commission were backed by all the wealth of the Adirondack Council, the Residents Committee to protect the Adirondacks, the Association to Protect the Adirondacks, and their national affiliates, such as the National Audubon Society, of which Peter Berle was president. The people of the Adirondacks united to defeat the Twenty-first Century Commission legislation and led the state to successfully defeat the bond act. The "2020 Vision" reports of the Adirondack Council, which precipitated the appointment of the Twenty-first Century Commission, were discredited, along with their fanatical preservation ideas, such as to forever preserve Lens Lake and its shores as State-owned land, in a supposedly "untouched" condition.
One of the worst outrages against the people that was proposed by the Twenty-first Century Commission was to require that new and existing houses outside hamlets be built or made retroactively invisible from roads and waterways. This was a terrible insult and, if enacted, would have been an offense to the human right to have a dwelling place and to proudly own one within the human community, within a place like Stony Creek. This outrageous idea to make houses invisible was publicly discredited.
Our town now has a need to grow and prosper. One half the land is owned by New York State, and is protected forever as wild land. That's enough. The private land is not State-owned land, not forever wild. The legal restrictions in the APA law are more than adequate to protect the environment. The court should not entertain arguments advocating illegal APA powers that offend human rights.
Carol W. LaGrasse
P. O. Box 75
Stony Creek, NY 12878
Edited October 6, 2001