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Reprinted from New York Property Rights Clearinghouse, Vol. 5, No. 1 (PRFA, Summer 2001)

One-Two Punch

Long Island Pine Barrens Owners Sue in Both State and Federal Courts

Small property owners trapped in the Long Island Pine Barrens Core Area have gotten to the heart of the law by bringing their complaints in a new lawsuit in state court on June 22. Led by Walter H. Olsen, Sr., the president of Civil Property Rights Associates, Inc., they are suing for a judgment that Environmental Conservation Law Article 57, which established the Long Island Pine Barrens Joint Planning and Policy Commission, is an illegal delegation of power in violation of the Constitution and that the commission itself is an illegal and unconstitutional entity. Their 109-page petition argues that the zoning powers of the regional commission violate the local home rule powers of towns and villages under the State Constitution and that the map delineating the Core Area where no development is allowed was made illegally, because the Department of Environmental Conservation (DEC) failed to certify an aquifer recharge map required by statute to logically determine the boundaries of land needed to be preserved to protect the drinking water.

The list of defendants reads like a "who's who" of the history of the Long Island Pine Barrens statute and the all-important regional zoning map that is tied to it. The lawsuit divulges an unsavory history of how "stakeholders" involved in politics, real estate, and well-connected environmental organizations created legislation and drew the zoning map boundaries of a roughly 50,000 acre Core Area for zero development to suit their own interests without public input or adherence to laws passed to protect the aquifer.

The lawsuit, served by attorneys James E. Morgan and Sheila Galvin of Delmar, digs into financial malfeasance of the Pine Barrens Commission, showing that it expended funds in a convoluted, unauthorized trail of expenditures through the Suffolk County Water Authority, rather than using the special fund required by law. The commission failed to buy a critical indemnification insurance policy that the law specifically directed it to get to protect itself in case landowners went to court. Furthermore, the lawsuit charges that it is illegal for the State Attorney General to represent the commission against landowners' suits. In addition to these causes and their claims for damages because of the deprivation of their rights, the property owners ask the court to enjoin the State Comptroller from releasing funds to the commission until the State Legislature reconstitutes the entity in accord with the law and the constitution.

The complementary lawsuit in federal court is based primarily on three of the most important bulwarks of freedom, the right to equal protection of the law, the right of due process of law, and private property rights. But in arriving at the Long Island Pine Barrens law and the final map of the area where no development is allowed, most property owners were not given a chance to be involved in the process, and while most property owners lost their private property rights, certain individuals and businesses received special treatment.

On June 28, Gladys Gherardi and several members of Civil Property Rights Associates (CPRA) went to the U.S. District Court, Northern District of New York, in Albany to sue for compensation for the violation of these fundamental rights. In their federal lawsuit, which brings up causes of action that are complementary to those in state court, they emphasize that the government cannot create a sub-class of people.

The commercial property that Mrs. Gherardi owns in Manorville is located directly across Route 111 from land owned by developer Charles Mancini. Although both properties are equally situated with respect to the critical water recharge area for the "so-called" Pine Barrens Aquifer, as the plaintiffs refer to it, Mrs. Gherardi's property ended up in the Core Area and Mr. Mancini's property was cut out of the Core Area. The lawsuit reveals that he then built 350 houses with cesspools without having to go before the Long Island Pine Barrens Commission, even though the primary stated purpose of creating the Pine Barrens protection area was to protect the groundwater.

But the process that created the Pine Barrens Core Area produced an even more offensive class distinction. The Town of Riverhead used its statutory veto power over the boundary map to exempt the Grumman property, in which it had an economic interest, even though the land is in the heart of the Pine Barrens ground water recharge area. When the Suffolk County Gabreski Airport, where commercial development is being promoted, and the Brookhaven National Laboratories are also considered, government-controlled properties together comprise ten percent of the area in the Central Pine Barrens, but nearly all of it is cut out from the Core Area. In fact, municipalities control the bulk of the developable land exempt from Pine Barrens Commission control, which is actively marketed at prices that the plaintiffs can never obtain for their property.

The plaintiffs charge that the basis for the boundaries of the Core Area in the final map was a map presented by James LaRocca, the president of the Long Island Association, a prominent businessmen's group. No one has admitted to being the author of that map, which increased the Core Area from 32,000 acres to 47,500 acres. The plaintiffs charge that the LaRocca map, with a few municipal inputs, provided the basis for the legislation and final plan without regard to aquifer recharge area bounds. The lawsuit charges that the mapping was not done by people with scientific expertise, but by people with economic interests in whether their land was included in the restrictive Core Area.

The lawsuit outlines the machinations that interested, well-connected parties went through to devalue the property in the Core Area. One of the towns up-zoned the lot sizes. According to the parallel lawsuit in state court, James Tripp, who was then at the Environmental Planning Lobby in Albany, worked through then DEC Deputy Commissioner Robert Bendick to bring up the idea of using "transferable development rights" (TDR's) to keep the cost of compensation to property owners down. The federal lawsuit tells how the Pine Barrens credit system came in on an amendment to the Pine Barrens law. Henry Dittmer, the vice president of CPRA, who is one of the plaintiffs, owns land that is situated much like the Grumman property, but his only option is to sell his land to the Clearinghouse for Pine Barrens Credits. However, the "credits" are essentially useless because their value has no relation to what should be the fair market value of Mr. Dittmer's land, the plaintiffs charge.

The Nature Conservancy offered Mrs. Gherardi a buyout of $7,500 per acre, when other commercial land on Route 111 is selling for $100,000 per acre. She thinks that the Nature Conservancy is "a government fronting agency working in conjunction with the commission." Furthermore, at no time was consideration given to the law that the fee owner of the land owns the underground water rights. Summarizing these and other flagrant illegal actions, the lawsuit states that the defendants have acted individually and in concert to deny the plaintiffs' property interests.

The defendants include the leaders of the State Legislature in their official capacity, plus prominent officials of Suffolk County, the three towns, Pine Barrens agencies, and Suffolk County Water Authority, individually, as well as in their official capacity. In addition, the property owners are suing Richard Amper, who is well-known as the head of the Long Island Pine Barrens Society, individually, and in his capacity as vice chairman of the Pine Barrens Commission Advisory Committee. The lawsuit points out that the Pine Barrens Society used the courts to stop 232 projects worth $600 million until overturned by the Court of Appeals in 1992 and that Mr. Amper has influential access to the media. The Pine Barrens law was passed and the map all-too-quickly finalized in 1993, the lawsuit points out. - Carol W. LaGrasse

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