"UNTOUCHED" LAKE SHORE
The Adirondack Park Agency's Reply to a Freedom of Information Request Chronicles the Coordinated Opposition to a Single Log House
By Carol W. LaGrasse
On August 9, 2001, the day that the Property Rights Foundation began its APA Watch, the Adirondack Park Agency (APA) staff made a very elaborate presentation to the commissioners about a single log house proposed to be built on a 7.9-acre lot between Lens Lake Road and Lens Lake in Stony Creek, the town where I live. The commissioners appeared to be persuaded primarily by one aspect of the information that they had received, the point that upwards of 80 letters of opposition to the project had been sent to the agency. They decided to go to the extraordinary step of holding a public hearing about the application for the single log house, even though it is proposed to be built over 300 feet from the lake, well beyond the APA law's required setback of 100 feet. Under the Freedom of Information Law, I requested a copy of all of the correspondence related to the project, which is known by the name of then-owner Michael Black's business "Cold River Properties" in Long Lake.
When I read the 121-pages of correspondence, I discovered that it chronicled an expertly executed campaign led by a well-situated neighboring property owner to defeat the application. The letters speak for themselves. Below are excerpts and summaries presented in approximate chronological order, with a few reports of key events during the progress of this campaign. In the end, the observer can see the symbiotic relationship between the letter campaign, the APA staff, and, with two exceptions, the APA commissioners.
Chronology of Letters to Save an "Untouched" Lake
The voluminous response to the Freedom of Information request begins with a letter to property owner Michael Black from William Hutchens, a retired man with addresses on Lens Lake Road, Stony Creek, and in Syracuse, New York. Mr. Hutchens owns the property on Lens Lake adjacent to Mr. Black's 7.9-acre lot. He is also a member of the Livingston Lake Club. This July 14, 2000 letter was one of several letters to others outside the APA that Mr. Hutchens copied to the agency.
In the letter to Mr. Black, Mr. Hutchens offered to buy the property from him, after wishing him "the best of luck with your project and much happiness when you and your family move in." Referring to a meeting with him "the other day," Mr. Hutchens offered "$20,000 - $30,000" for the lot, "in line with your original thinking and with actual market values in the Stony Creek area," while pointing out that "...to wait for approval of a building permit from APA could entail time, significant legal expense and, of course, real estate taxes in the interim, not to mention lost interest on your investment. Also, there is, of course, no guarantee you would actually receive a permit that would be satisfactory in view of the extensive wetlands in the area."
"[My] proposal is more likely to protect the fragile and unique environmental status of the area about which I and others in the proximity are concerned. You may not be as familiar with these circumstances as I am, but I mention it nonetheless as an important factor in the overall picture," he wrote.
Soon afterwards, a group of letters from owners of other property on Lens Lake Road arrived at the APA, addressed to William Curran, the Director of Regulatory Programs. The first was from Donna Maloney Washburn on behalf of her father Adrian Maloney, opposing the permit because "no other privately owned land on Lens Lake has been developed in any way within sight of the lake." She claimed that the "entire shoreline well back into the woods is a wetland and is so designated on maps we have seen." She complained that trees were already cut, writing that "we do not understand how anyone could be permitted to cut away as many of the trees as have already been cut."
This letter is significant because it raises three issues that are repeated over and over in subsequent letters opposing the project. The first is the claim that the entire privately owned shore of Lens Lake has never been developed within sight of the lake.
The second claim is that wetlands along the shore preclude development. But the letter is inaccurate in claiming that the entire shoreline is mapped as wetlands. Except for the area of the dam built by DEC recently, where the wetlands were filled in, and for one other small area and the large marsh stretching back from the lake from the shore of Mr. Hutchens' property, none of the privately owned lakeshore on the east side of Lens Lake is mapped as wetlands. In fact, the maps were consistent with a walk along the shore of Mr. Black's property in September 2001, when the lake level was about 1-1/2 inch below the top of the spillway because of a dry spell, causing the lake shore to recede some distance. The on-site walk showed that forest began only a few feet back from the receded shoreline, and that the land rose from the lake at slopes that would not support wetland.
The third claim is that the owner should not have been "permitted to cut away as many of the trees as have already been cut." An on-site walk, however, reveals that the single clearing at the lake shore amounts to only a cutting of the small trees in an area of about 20 30 feet wide by about 50 70 feet back from the lake. Many medium and larger trees are left within the clearing, and no medium or larger one or two-year-old stumps are to be seen. In fact, the largest stump is only 8 inches in diameter. There are no really large trees much over a foot in diameter in the vicinity at all, leading one to conclude that the land in that area was clearcut to the lake during the 1900's.
Other property owners along Lens Lake Road wrote letters to Mr. Curran, also. Margaret Kinosian of Ballston Lake made similar points in her August 23 letter, adding the argument that the applicant should not be treated any more leniently than she was when she had gotten APA permission for her camp on Lens Lake Road in 1989. The Kinosian dwelling was "well screened from the lake due to existing vegetation," "...located at least 1400 feet from the edge of the lake," "200 feet from the wetland located on the property," "100 feet from the edge of Lens Lake Road," and no vegetation could be cut "within 100 feet of Lens Lake Road...except for...25 feet in width for driveway...and utility installation."
An interesting aspect was added when William Liebl, the owner of a dilapidated camp on Lens Lake Road as well as a house in the center of town, who is also a councilman on the Stony Creek Town Board and employee of Mr. Hutchens wrote, "...All of the trees have been cut from the shoreline," warning about the "rape of the land," and asking that the owner "should be fined or punished." In this personally written letter, Mr. Liebl did not identify his town office, but when signing a later form letter, he added the words, "Councilman, Town of Stony Creek." Real estate agent and town board member Barbara Brooks, with whom Mr. Liebl lives, also wrote a letter during August. She pointed out that the property is "probably 75% wetlands" and that "they have cut down many trees along the shoreline." She asked Mr. Curran to "do something to stop them before they do any more damage."
Another camp owner on Lens Lake Road, Ronald Rea of Ft. Edward wrote on August 31 that, "We hope that a permit for development will not be issued." Like others, he repeated the point that the land around the lake had "never" been developed or cut "for housing of any kind to be seen from the lake."
Then in September, Shirley and Robert Balvin wrote from their address on Lens Lake Road, "We object vehemently to the development of any kind by Cold River Properties or any other developer." Shirley Balvin traced their ancestry to the Stones and the MacDonalds, repeating the point of long association on the land contained in Mr. Rea's letter, where he stated that he owned the camp for 30 years, and Mr. Liebl's letter, where he said that he was born in Stony Creek.
Howard Ward, who lives in Schenectady, another property owner along Lens Lake Road, wrote in September, "I... find it discomforting that this pristine and beautiful site may be marred by construction."
Mr. and Mrs. Guy T. Newton of Rensselaer and Lens Lake Road wrote in September also, declaring, "We believe that any attempt to develop property on Len's Lake (sic) would destroy its pristine beauty and possibly [cause] further damage to the lake and surrounding area."
Lens Lake Road property owner Elaine Duguay, the daughter of Newel MacDonald, who "with his family lived and farmed the land for many years," sent a letter that also arrived at the APA in September. "I am opposed to the development of Lens Lake in Stony Creek. It will destroy the habitat of many wild animals and plants," she wrote.
William Hutchens' letters continue
While property owners along Lens Lake Road were writing these letters during August and September 2000, Mr. Hutchens was busy writing more letters of his own. On August 16th he wrote to Mr. Curran at the APA about his letter dated July 25. However, the APA did not send me the July letter in response to the FOIL request. Mr. Hutchens pointed out, "I sent you a good deal of information with my letter of July 25 regarding the wetlands in the area owned by Cold River Properties, including correspondence I had with the APA in 1993 regarding a 3-acre lot there which I purchased in 1994 and which is contiguous with Cold River Properties 7-acre lot."
He requested a copy of the "additional information request" that the APA sent to Mr. Black of "Cold River Properties. An additional information request is a device that the agency uses to require further information about the project from the applicant. In closing, he wrote, "I will call you in a few days to see when I might come to Ray Brook to meet you and hopefully also Tom Saehrig." Tom Saehrig is the review officer for the specific project.
Working the other direction of his effort, he wrote a three-page letter on October 27, 2000 about "Cold River Properties Development of Lens Lake" to individuals described only as "Concerned Citizens of Lens Lake Road and Stony Creek." He thanked them for writing to "William J. Curran, Director of Regulatory Programs at the Adirondack Park Agency," pointing out that the "number ...is rapidly escalating and could reach 100 or more with inclusion of members of Greenhaven and Livingston Lake." Mr. Hutchens gave a "reminder" of Mr. Curran's address at the end of this letter.
The Greenhaven Club is a middle-class hunting club located in a large old house on Lens Lake Road, whereas the Livingston Lake Club is a more upper crust complex of individually owned hunting lodges or camps on Livingston Lake in the town of Day, just south of Stony Creek. This club is reached only by traveling to their gate at the end of Lens lake Road, and taking a land or water route to the exclusive complex.
In this letter, Mr. Hutchens writes that the "developer completely cleared a plot of up to 30 yards wide and 50 yards deep of all foliage and most trees from the shore line back without notice or previous permission of the APA, burned (without notice to adjoining landowners) all such cuttings without bothering to secure a burn permit." (italics only added, underlining in original)
This observation presumably forms the basis for Mr. Hutchens' efforts to get the APA to institute an enforcement action against Cold River Properties.
Appealing to the readers' sense of outrage against a "developer," Mr. Hutchens related that "this developer purchased in early 2000 seven acres of land fronting on Lens Lake from an elderly widow, Vivian Farrer of Gloversville, for $15,000, land which she had purchased in 1979 for $10,000 and had said she was holding for her grandson, Scott Davis...[T]he developer...then advertised the lot for sale in the New York, New Jersey and Long Island metropolitan areas for $99,000 as follows: 'ADIRONDACK LAKEFRONT 7 acres on secluded lake, total privacy w/mt. views of lg. pines. This is special! $99,000 (518) 614-2190.'"
This bit of detail about the former landowner's intention for the property could mean that Mr. Hutchens had been trying to obtain the land from her even before the offer he formalized in his letter earlier that year to Mr. Black.
In his letter, he pointed out that his efforts to buy the land from the new owner "(which would have resulted in an almost tripling of his investment) were rebuffed."
"There has never been any shoreline cutting on Lens Lake and the area previously remained pristine except for a small spot where the dam exists. Other than the dam, there is no visible development on any of the shoreline of Lens Lake," he wrote.
"Extensive wetlands surround the lake...," he pointed out.
Drawing from points made in an influential publication, he wrote, "Lens Lake has been identified by the Adirondack Council in their 1988 publication, 2020 Vision, Volume 1, 'Biological Diversity: Saving All the Pieces,' as a very important and unusual biological resource. It is a quaking bog, generally found in boreal bogs and fens, and is one of the southern-most fens in the Adirondack Park and one of the richest in plant species." All of these points are made in the Adirondack Council publication.
As the letters from the Lens Lake Road and Livingston Lake landowners, Greenhaven Club members and a few others are studied, even the ones that are not merely signatures applied to the pre-typed letters which comprise the vast majority, the above themes and words are repeated over and over.
Mr. Hutchens also skillfully points out, "A somewhat related aspect is the consequential impact on the local assessments of Lens Lake Road property owners should this deal proceed at anything approaching $99,000."
Using underlining for emphasis, Mr. Hutchens points out the "major impact" of letters already sent, in that the "APA has requested additional information from the developer."
He adds, "To date, the APA has been cooperative and sensitive to the issues outlined above, particularly in view of the letters of objection received from all of you. Your continued interest, concerns, and even additional letters are critical to staving off permanent degradation of this important land. Let us not allow a developer from Long Lake spoil an area given to us by nature."
Mr. Hutchens covered even more ground. In the same letter, he announced that he had engaged a lawyer Timothy R. Smith of Lake Placid, who has "represented individuals and developers on both sides of similar matters, and was on the legal staff of the APA for many years." He also engaged Vincent McClelland of the LA Group, "a nationally-known consulting firm, to assist in testimony regarding wetlands, severe slopes, and environmental damage aspects of this matter. I will absorb all of the costs of the foregoing."
During November, nineteen identical, three-sentence letters identifying the senders as members of the Livingston Lake Club arrived in Mr. Curran's mail at the APA. The letters were all hand-signed, but only one sender took the time to include a return address. The pre-typed form letters state the position, "Please be advised I object most strongly to any development on a Lens Lake lot recently purchased by Cold River Properties because of the extensive existence of wetlands and the ecological importance of the area." In addition, one personally written letter arrived from a member of the Livingston Lake Club.
Hutchens reports about new buyer
Meanwhile Keith McHugh, who lives in Norwood, New Jersey, wrote Thomas Saehrig at the APA in October that he had "contracted with Mike Black of Cold River Properties, to purchase the 7-acre tract."
On November 20, 2000 Mr. Hutchens wrote to Mr. Curran again, reporting in detail about a meeting on October 30 with Keith McHugh. This letter he copied to Mr. Smith, his attorney. He wrote, "The grapevine tells me the contract price is $60,000, with Mr. McHugh paying expenses of securing an APA permit. I would doubt the price is lower, it could be higher. Mr. McHugh did not confirm anything."
"I discussed the issues of wetlands, slope and ambiance considerations and that the APA, notwithstanding what impression he had received, had not in my opinion taken a position on this matter," he wrote. The reader ponders, how would Mr. Hutchens be able to know the APA's position?
"I reviewed with him the local opposition, which is substantial (see enclosed October 27th memo from me to local opposers), and the reasons therefor. I shared some of the letters with him, including the aforementioned October 27th memo," Mr. Hutchens continued.
Mr. Hutchens next got to the theme of an enforcement action by the APA.
"I also made mention of numerous illegal, or at least improper steps taken by Mike Black of Cold River Properties, and indicated that in my opinion, an enforcement proceeding was pending. Mr. McHugh said he was aware of some of this, but was not aware that Mr. Black had cut the trees and brush on March 24th (per Black's letter to you) before he owned the property (June 13) or even had a contract to buy (April 18th) per the Real Property Transfer Report. Mr. McHugh said he did not approve of the cutting, anyway."
In his letter to Mr. Curran, Mr. Hutchens continued with the details of the meeting, getting to a salient point of importance to him, the possible visibility of the house from the lake. "During the course of our conversation, Mr. McHugh told me several times he 'wanted a view of the lake' which would be obtained by putting his house on the ridge or knoll on high ground. This 'view of the lake' condition seems contrary to what I learned from some source (other than the APA) a short while ago, i.e., that he 'did not need a view of the lake.'"
"When I suggested a view of the lake would mean the house could be seen from the lake both now and more prominently in due course through gradual thinning, and that this was one of the objections of various people, he disagreed. He said the house would not be visible from the lake. Given line of sight, this seems incongruous," Mr. Hutchens continued.
Then Mr. Hutchens recorded a more aggressive turn that the October meeting must have taken.
"I pointed out that it seemed like we might be headed for public hearings which could be expensive, arduous, and unpleasant. Such matters as Black's actions, neighbors' letters, and pictures of the lot cutting would be evidence and exhibits and it would be a generally unhappy time!"
He went on to further reveal to Mr. Curran in writing something he had told Mr. McHugh about the unpleasant future potentially awaiting his attempt to build on the property.
"And then, even if the APA granted him a permit, which I did not believe would turn out to be a satisfactory one for him, there could be a civil suit which could tie up the issue for a couple of years or something," wrote Mr. Hutchens about his conversation with Mr. McHugh.
Then Mr. Hutchens discussed his conversation about his offer to Mr. McHugh, bringing in his connection to The Nature Conservancy, a land trust which is active acquiring land in the Adirondacks, and happens to be the nation's largest environmental organization.
"In any event, after all this, I made Mr. McHugh an offer (we never got to a price) to buy an assignment of his contract so as to enable me to purchase the land and preserve it (either by gifting it to the Nature Conservancy of which I am a trustee or placing it under conservation easement, although I did not tell him this). He was not at all interested. (But in a later telephone conversation on October 31st, he indicated he would sell the contract to me if I found him a place he liked better than the Lens Lake lot.)"
McHugh's application moves along
Keith McHugh went on complying with the Adirondack Park Agency staff requests. In a letter to Thomas E. Saehrig dated February 9, 2001, he pointed out that his surveyor had sent a completed survey map of the property and that Mike Black would be forwarding additional tree surveys. He enclosed "elevations" (which are professionally drawn side views) of the proposed dwelling unit and boat storage unit.
His letter included narrative to answer remaining requests for additional information from the APA staff. He pointed out that DEC's new reinforced concrete dam on the lake, with its line of rocks, surrounding clearing, and lawn are quite visible, contrary to the APA's second additional formal information request, which he quoted, "(T)here are no man-made structures visible from the lake and immediate shoreline remains undeveloped." He enclosed a photograph of the dam, and pointed out that the State had made no attempt to make the dam invisible.
He also enclosed photos of houses near the access road to the dam and the adjacent town boat launching site, questioning whether these houses help to preserve the "quaking bog." The phrase "quaking bog," was referenced by the Adirondack Council in its 2020 Vision report, where the group advocated that the State acquire the remaining private land around the lake.
Mr. McHugh also enclosed a photograph of Lens Lake Road where it borders the western shore of the lake, commenting that the vehicles using the road disrupt the solitude and that Lens Lake Road near the lake is not representative of the "wilderness" character of Lens Lake.
Several weeks later, on April 12, 2001, William J. Curran at the APA received a note from "W. D. Hutchens," stating only "Please note attached FYI." Attached was a photocopy of the cover of the Adirondack Council's 2020 Vision report Volume 1 published in 1988 and the page describing the attributes of item 27, "Lens Lake Bog and Livingston Lake" in the towns of Stony Creek and Day needing State preservation.
Mr. Hutchens owns a 2.55-acre parcel with a lodge at the tip of a promontory on the south central part of Livingston Lake. The Adirondack Council report had conceded, "Several camps exist on Livingston Lake but only one on the more biologically important northern half which is nearly 'pinched off' from the rest of the lake." This was too close for comfort. In fact, shortly afterwards, the land on Livingston Lake including the promontory with the Hutchens camp and extending to the north end of that lake, plus much of Lens Lake's shorefront, including the area with the Hutchens house and land, were slated for acquisition in the Twenty-first Century Commission report commissioned by Governor Cuomo.
In the early 1990's Mr. Hutchens displayed great concern when the Adirondack Council's report precipitated a State acquisition map that cross-hatched the family property along with all the lakefront property on Lens Lake, part of Livingston Lake, and all of "Middle Flow," which connects them, as well as other property in that general area of Stony Creek. Mr. Hutchens became a well-known, articulate public spokesperson for the wealthy Adirondack Landowners Association that formed to oppose the State's acquisition of the 654,850 acres of lands crosshatched on the official map.
Another letter barrage
On April 12, 2001, Mr. Hutchens sent a letter that at first glance seems to be exactly the same as 32 pre-typed, precisely alike form letters requesting a public hearing about the project that began to arrive on April 16, 2001 at the APA headquarters addressed to William J. Curran. A careful perusal, however, reveals that his letter has a few small differences, plus an additional paragraph, "The number of people who have expressed opposition has grown from the slightly more than 30 who wrote letters to the APA last Fall to more than 100 now." Except for the typed date and additional paragraph, which could have been easily added to the letter if the master were in Mr. Hutchens' computer, his letter has precisely the same paragraphing, typesetting and wording, down to the addressing of the letter to Mr. Curran, as all 32 form letters signed by others.
Aside from the signatures and handwritten dates, the only individualization of the 32 form letters is the addition of addresses by hand or label on eight of them. On April 23, Mr. Curran received a differently typed letter from William H. Davis that was very similar to this form letter, but had reworded the request for a public hearing and stated that the application "flies in the face" of the "Blue Line."
The last of these 32 letters arrived at Mr. Curran's office on April 28, 2001. Although the number of letters received thus far was becoming impressive, only the eight letters from neighboring property owners (one a town resident), the three from Stony Creek residents during August and September 2000, one from a Livingston Lake Club member, and one from a Greenhaven Club member were personally written.
Of the nineteen form letters from Livingston Lake Club members that Mr. Curran received during October and November 2000, sixteen were signed with the same name as letters in the April - May 2001 group of form letters. Of the three remaining Livingston Lake form letters dated during August and September 2000, only one has a last name differing from those in the April-May 2001 generic form letter group.
Many of the form letters in the 32 letter group that are from seemingly new people are signed by people with the same last names, including people who may be Mr. Hutchens' relatives. For instance, William D. Hutchens, Jr., owns a 2.08-acre property on Livingston Lake in common with Virginia B. Easterly, one of the people who signed two letters. However, in order to make a true letter count to indicate the number of separate individuals who have made any effort, however small, to express their opposition to the project, all individual people will be included, including those with the same last names.
Some of the signers of the new group of form letters had already sent letters as residents or as neighboring owners on Lens Lake Road. When the new names from the new group of generic form letters are added to the number of separate individuals who had previously sent letters, a total of 42 individuals, including William Hutchens, had written their own letters or signed form letters to Mr. Curran in opposition to the project by May 2001. But more letters were being signed.
An additional group of form letters, 13 from the Greenhaven Club, arrived during April 2001, all but one dated April 16 through 18. The thirteenth letter, dated April 25, appears to have been signed by the same person who signed one dated April 17, but with a superficial change in penmanship and different pen. This group of opposition letters again urges public hearings about the project. Although typeset by the same source as each other, one design of the otherwise exactly alike typed letters added a sentence lacking on most of the letters. This sentence refers to the importance of Lens Lake because of the 2020 Vision report. The letters have the same style and typeface as the previous groups of form letters.
With the twelve individuals who signed the new group of form letters from the Greenhaven Club, the new total of separate individuals who had written in opposition rose to 54. Counting each of Mr. Hutchens' letters separately, the number of letters in the works being sent in opposition had risen to 81 by April-May 2001 when William Hutchens wrote his April 12 letter claiming that "The number of people who have expressed opposition has grown from the slightly more than 30 who wrote letters to the APA last Fall to more than 100 now."
But the "number of people" was only 54, not 100. Considering that Mr. Hutchens is a retired but very successful accountant, who still dots every "i" and crosses every "t," the inaccurate wording is significant. And, counting Mr. Hutchens only once, the number of individuals who had personally written letters of opposition, rather than signed pre-typed form letters, was only fourteen.
Big guns, pressing for an enforcement action
Significant wheels were turning. On April 20, 2001, the Adirondack Council, a regional environmental group formally affiliated with several of the major national environmental organizations such as the National Audubon Society and the Wilderness Society, weighed in with a letter to William Curran requesting a public hearing for the project. The annual budget of the Council separate from the coalition it represents is approximately two million dollars. Predictably, the Adirondack Council repeated William Hutchens' position that cutting of vegetation near the lake shore could be a violation, and must be "remediated prior to processing of an application," also pointing out that this should be required "whether or not the applicant pursues this project application any further." Their letter pointed out, "As you are probably aware, this site is extremely important ecologically and is cited in Volume 1 of our 2020 Vision Series..."
On June 12th, Mr. Hutchens' wrote again to William Curran at the APA. He thanked the official and project review officer for apparently keeping him in the loop. "Thanks to you and Tom Saehrig for keeping Tim Smith and me apprised of the status of the above-referenced project."
Then he pressed on with the topic of an enforcement action against the property owner for the trees that had been cut.
"What, then, has become of Cold Brook Properties' illegal action in clearing 30' x 100' portion of the lot...?" he inquired. (In his Oct. 27, 2000 letter he'd referred to 30 yds. by 50 yds.)
"Could you please advise me and Tim Smith by return mail as to how and when this violation will be resolved, what enforcement number was assigned and what penalty will be imposed on Mr. Black?" he wrote.
He asserted, "According to the regulation referred to above, the review time periods should not run until the violation is resolved."
This particular letter was not as successful as the campaign for a public hearing.
Application's progress arouses ire
Keith McHugh, the prospective buyer, had assumed the role of communicating with the APA that was formerly occupied by Michael Black, the owner of Cold Brook Properties. His letter on June 25, 2001 to Thomas Saehrig was quite short, apparently indicating that APA staff's requirements for additional information were drawing to a close.
Mr. McHugh wrote, "Pursuant to your request, the building's ground floor elevation will be at or near 1918'. The entire letter was composed of this single sentence and his courtesy closing, "Please feel free to call me at any time at the above numbers should you have any questions or need anything further from me."
"I have received notice of completion of the application for the above-named project and I must say I am most surprised," declared Mr. Hutchens in a July 16th letter to Mr. Curran.
"I wrote to you...specifically identifying my concern (complaint, if you will) regarding the violations by Cold River Properties and requesting you advise me of the status of same. No response has been received," he wrote.
"There is no question that violations have occurred and, as an adjacent landowner, I believe I am entitled to see that the responsibility of the APA to enforce the regulations is carried out. With all due respect, anything short of this will not be satisfactory to me, or to the many who share my views," he declared.
Then he assumed an even more forceful posture. He had written to the executive director of the Adirondack Council, congratulating him for an article in the Glens Falls Post Star, the major daily for the region. He enclosed a copy of this letter.
"I noted in the June Post Star your praise of the APA for strengthening its enforcement procedures. Congratulations to you for bringing visibility to this important matter," he'd written to Timothy Burke at the Adirondack Council.
"As I'm sure you will recall, I am vigorously pursuing what appears to be a clear violation on Lens Lake in the Town of Stony Creek by Michael Black of Cold River Properties. It's about time somebody says just because a tract is small does not permit one to abuse it by breaking the rules," he'd pointed out to Mr. Burke.
His letter to Mr. Curran at the APA continued, "I call your attention to my letter of June 26 (copy enclosed) to Tim Burke regarding his praise in the media of the improvement of the APA's enforcement procedures. The Cold River Properties case would not be a sterling example..."
Reiterating his annoyance at being cut out of the loop, he closed with the words, "Finally, I have received no response to my letter of June 28...But it would be nice to know, Bill, that the Agency won't permit an applicant to quote a project review officer out of context in this way."
His annoyance stated in the June 28th letter was that Keith McHugh had written on February 9th to Tom Saehrig, "I have sited the dwelling unit at the location that you stated would meet with your approval."
Mr. Hutchens' June 28th letter's tone had been very positive, however, by comparison with his July 16th letter. In the June 28 letter he had written, "As you no doubt know, Tom Saehrig has been good enough to send me copies of additional letters from citizens objecting to the Lens Lake development as well as copies of additional submissions by Mr. Black."
"As of this writing," he had cordially continued, "I count nearly 100 letters submitted to the APA. According to my records, however, there are at least six letters copies provided directly to me by the writers which may or may not be in your files as I did not receive copies from you folks...I enclose the relevant copies for you to pass along to Tom for the file..."
Another high-caliber opponent
At the same time that Mr. Hutchens was castigating the APA staff, a new heavy hitter was entering the fray. David Gibson, the long-time executive director of the Association for the Protection of the Adirondacks, which has also had countless dealings with the APA, wrote to "Bill Curran, Director of Regulatory Programs," on July 17 on stationery celebrating their one-hundredth anniversary, which occurred in 2001. Their trustees and honorary trustees listed on the venerable group's stationery read like a who's who of Adirondack preservation policy.
"The Association for the Protection of the Adirondacks lends its voice to those who ask for a public hearing on this project," began Mr. Gibson.
Referring to Lens Lake, he wrote, "It's inclusion as a 'biologically rich site' in 20:20 (sic) Vision Volume 1 (1998, Adirondack Council) suggest(s) it contains an 'unusual abundance of plant and/or wildlife species and communities.'"
He made the point, "[T]he privately owned parts of the shoreline of Lens Lake have remained undeveloped despite its location near major population centers outside the Adirondack Park."
Then he suggested linking the area to the joint Natural Heritage Program. This is The Nature Conservancy's national program, where, in New York, they survey rare, threatened, and endangered wildlife under contract to DEC. "As the APA conducts project review, there may be important data from the DEC's Natural Heritage Program or the Agency's own Upper Hudson Watershed GIS to further substantiate the importance of the wetlands bordering the lake. It seems apparent that even one single family home in this lake must necessarily have a footprint occupying part of the wetland, thus making the project site a Critical Area within Resource Management."
Having put in some "original" thoughts, albeit in the context of well-known information to anyone in the arena of environmental activism in the Adirondacks, this confident writer ended on a note reminiscent of Mr. Hutchens' several letters.
"[T]he project ought not proceed at all without addressing violations of the shoreline regulations contained in the Act," Mr. Gibson reminded the director of regulation.
A decision approaches
The date of the all-important monthly meeting of the board of commissioners of the Adirondack Park Agency was drawing near. The agency had decided to move its August 9 10, 2001 meeting from its headquarters in Ray Brook, which is hidden away in the High Peaks region near Saranac Lake, to a more accessible location, North Creek, only a 45-minute drive from Stony Creek in the same county, Warren. The commissioners had the power to decide whether the applicant would be required to go to the expensive process of a public hearing.
During recent years, the APA has seldom held public hearings about permit applications. Nearly all these projects have been of far greater scope than the individual single family log house proposed for the parcel on Lens Lake or have been small projects needing variances that by law require public hearings.
A few more letters came in to the APA during the short remaining interval before the APA meeting. The Adirondack Council's Joseph Moore faxed the project review officer, "Tom Saehrig," a copy of his April 20, 2001 letter to William Curran. "Just want to make sure it's part of the record with the comment deadline approaching," he jotted on the FAX cover sheet.
Mr. and Mrs. Kinosian, the Lens Lake Road property owners residing in Ballston Lake, New York, stayed involved. Henry Kinosian sent a long letter on July 25 detailing the history of his family's purchase of the lands, their construction of a cabin, and his arguments about the limitations of the property where the log house is proposed. Apparently drawing from his sense of his moral rectitude, he developed several arguments to confound the progress of the project.
"[W]e chose to preserve the ambiance of the lake and valley by designing our vacation home for minimum environmental and visual impact...," he wrote. "Lens Lake remains an oasis in the rapidly developing Adirondacks," he claimed. "...Even if only part of the house shows, the virgin viewshed of Lens Lake would be blemished forever."
Waxing technical, he argued "Once the land within the 300' high water setback and 100' road setback is eliminated, this 7 acre parcel is reduced to less than 2 acres of available land." He gave no authority for the extreme setbacks he cited, perhaps because there is none in law.
Mr. and Mrs. Kinosian were apparently unaware of the usual heritage of the old towns in the Adirondacks. Perhaps he never noticed the prominent converted church meeting house, the town cemetery, farmhouses, and converted schoolhouse along Lens Lake Road. Perhaps he never realized that the lake was a hydrologic impossibility without the dam to impound its waters. Perhaps, for all his pride in ownership of "1600' of shoreline" pointed to at the beginning of his letter, he never noticed the age of the forest, never realized that, as every Stony Creek old-timer knows, the relatively level land all around town, including that around the old, far smaller Lens Lake, was cleared and farmed over a century ago. Afterwards, around the turn of the twentieth century, the land around Lens Lake was flooded to create a lake that today is perhaps four times the original size, resulting now in the "virgin" shoreline he so cherishes.
"By leaving the forest surrounding the lake intact, the experience of total wilderness remains complete for everyone," he continued.
The closing argument in his letter was "Lens Lake remains wild and beautiful today because people have chosen not to disturb it."
Perhaps he should have more accurately written, "The shores of the impounded waters became forested again because poverty and hardship drove three-quarters of the population out of Stony Creek. Today we enjoy the lake's transient beauty."
Bill Hutchens was still writing letters, also. On August 1, 2001, he sent a detailed letter to purchaser Keith McHugh, with a copy to the APA. The letter is actually a memorandum of their meeting of October 30th of the previous year, supplemented by a proposal to arrange for him to buy another parcel of land instead of the Lens Lake property.
"I understand you had a contract to buy subject to obtaining the appropriate APA permit to build. At that time I offered to purchase an assignment of your contract with Cold River Properties in order that I might work out something with them that would negate development on Lens Lake," he wrote.
Discussing a telephone conversation they had had the following day, he wrote, "The subject of this was that you had an open mind about considering another place..."
He pressed on with a proposal, "[Y]ou might want to now consider a lot on Hadley Hill Road, about five miles as the crow flies from Lens Lake...The lot is about 282 acres and is privately situated with a very nice view of the West Mountain Range, including Hadley Mountain, Round Top Mountain, and Gill Mountain..."
"The asking price per the owner is $120,000 or about $425 per acre. As you know, the asking price for the Lens lake lot at $99,000 was about $12,700 per acre and at $60,000, is about $7,700 per acre. The Hadley Hill lot asking price is 'negotiable,'" he went on.
"I have a gentlemen's understanding with the owner, Joe Hahn...of an arrangement to a right of first refusal in order that I might make it available for your consideration...," Mr. Hutchens pointed out, enclosing a copy of a tax map showing the property location.
With the APA meeting just days away, Timothy R. Smith an attorney in Lake Placid, which is a short distance from the agency's headquarters, wrote to Mr. Curran that he understood that Keith McHugh had asked to speak to the Regulatory Programs Committee at the meeting. "If Mr. McHugh is allowed to speak, my client (and adjoining owner) William D. Hutchens would also like to be afforded an opportunity to speak," the lawyer requested.
Two more short letters of opposition from individuals who had previously written arrived at the APA office shortly before the August 9 meeting.
In addition, the Adirondack Council sent another letter, dated August 8, which has no date stamp, but may have been received by the APA by August 9. This letter reiterated their opinion that the project should go to a public hearing. Mr. Moore made a new point that "Should the Agency vote to send this project to public hearing..., we ask that the scope of issues to be heard not be limited prior to a scoping session involving all interested parties. There are a number of significant environmental issues related to this application which can only be addressed in adequate depth in public hearing forum."
"Staff has made assertions regarding potential impacts to wetlands with which the Council, as well as other potential intervenors, do not agree. These issues should not be eliminated from the scope of any potential hearing by the commissioners, but should instead be explored in the context of a complete scoping session."
At the APA meeting in North Creek, William Hutchens sat at the opposite end of the large chandeliered conference room in the Copperfield Inn from Keith McHugh and Michael Black. Unless the chairman consented, only the staff and commissioners were allowed to speak. By law, the eleven APA commissioners are appointed by the governor, except for three who are designees of DEC, the Department of State, and the Department of Economic Development. One appointive seat is currently vacant, and Chairman Lefebvre recused himself because he knows Livingston Lake Club members.
The project review officer Thomas Saehrig made lengthy presentations during two rambling days when the commissioners first met in committee, then as a full board. Illustrating the talk on August 9, he displayed a slide of a map diagram, then showed a view from a nearby mountaintop, which he said depicted the character of the "wholly undeveloped" region around Lens Lake. He also pointed out that this panoramic photo was provided by an adjoining landowner.
Upon showing a view of the town road along the lake and the access road to the dam and town's boat launching site, Mr. Saehrig observed that there was "some development." He showed photographs of the shore during a test with balloons flying 100 ft. above two corners of the proposed house in an attempt to evaluate the visibility of the house from the lake. He also showed a professional rendering of the proposed house and an elaborate site diagram. He pointed out that the applicant had done a detailed stem count of all the vegetation that exists on the 7.9 acre parcel, and explained which trees would be removed to build the house on the proposed site 300-ft. from the shoreline.
In the course of the discussion, the staff member pointed out that the agency had begun to receive public comment, and that 53 individuals had written, commenting about issues such as visibility, pollution, shoreline, bogs, Wilcox Wild Forest, and open space. He did not mention that approximately three-quarters of the letters were form letters.
Mr. Saehrig explained that the staff had concluded that the project would have no impact on water quality or the bog, but that there was a potential open space impact. He said that he had asked the applicant to do a visibility impact study, but that this was not taken up. He said that it "will be taken up at the hearing." After pointing out that the area was designated in the Adirondack Council's 2020 Vision study, he said that the staff recommends that the APA hold a public hearing about the project. "The reason we need a public hearing is the need to gather information," he said.
A long discussion ensued. Seeming skeptical about the need for a public hearing, Commissioner James Townsend, a lawyer from Rochester who has climbed all of the Adirondack High Peaks, inquired, "What information you feel you need to gather that is not in this extensive material before us?
Mr. Saehrig answered, "The public wants to present the environmental impact on the shoreline." Mr. Townsend replied, "Is there no evidence that this affects shoreline?" The discussion went on interminably about an apparent alternative site near the road, rather than the one 300 ft. from the shore to which Mr. McHugh had already moved the site of the once-envisioned lake-view cottage.
During this long discussion, Mr. Townsend asked, "Is there an element of the public that has not been heard from that wants to be heard? What do you expect to learn?"
William Curran, the top regulatory official, who had become engaged in the discussion, responded, "That's the interesting question. We don't know. I don't know if the folks that are here are in agreement with our position. It's likely that there will be a challenge to our position. They feel that there's going to be an impact on water quality."
Then the acting APA counsel, Barbara Rottier, turned the discussion to visibility analysis. The APA staff said that their visual analysis was complete but they appeared to be concerned about visibility once the house site clearing was done. Retired Supreme Court Judge James King, who was the alternative designee to the APA commission from the Department of State in August, said "I thought I heard you say that you cannot see this cottage from the lake."
Mr. Saehrig replied, "Our visual analysis says you are unlikely to see this cottage from the lake except possibly in winter."
Another long discussion ensued about the limits of clearing for the house. Commissioner James Frenette asked, "What are you looking at from the front porch? You're not looking at the lake."
Mr. Saehrig replied, "You're looking at dense vegetation."
To which Mr. Frenette remarked, "You're not looking at the lake. The lake can't see it!"
Mr. Curran entered the discussion again, asserting, "The roof of the structure is 65 ft. above the lake. From the lake, it's flat, a slope, then a bench [where the house is proposed]. He is going to try to put parking underneath the house. Some raising of the structure for that is necessary."
"That's not true!" declared Mr. McHugh from the audience.
"Unless the laws of physics change. You have an eight-foot cellar," asserted Mr. Curran.
"It's on the back slope," declared Mr. McHugh, at which, Commissioner Katherine Roberts, the committee chair, cut him off for being out of order.
"In any event, the first floor will be above the existing grade," Mr. Curran continued. "Our concern is, is there a better location on this site where twelve months of the year you will have a higher amount of screening, where the applicant will not be seen."
The discussion went along a new line. Commissioner Cecil Wray asked about the photograph from the mountaintop. Commissioner Wray resides in Manhattan, where he is a corporate lawyer. He also owns a weekend house in Gov. Pataki's exclusive home town of Garrison, and a third residence in Keene Valley in the Adirondacks.
"This photo is from Spruce Mountain," the staff person explained. "There is potential visibility of this vista from State land. The public wants this vista."
"Construction around trees is very, very stressful to trees," Mr. Wray said. "You may think you leave trees standing, but you may not have them there."
Commissioner Frank Mezzano, who is a retired supervisor of the local Adirondack town of Lake Pleasant and a member of the Hamilton County board of supervisors, objected to what he termed "staff's recital."
"I really disagree with staff's recommendation for a public hearing," the low-spoken commissioner said. "The criteria laid out on the issues are subjective enough that one could argue one way or the other."
"I'm concerned about staff's position on visibility," remarked the retired judge, who was the local State Assemblyman for many years and is now chief counsel at the Department of State. "If invisibility is our goal, we should have some measure. I'm troubled by that. I don't know where to land on it."
"If staff can't figure out what trees are going to be taken out, they're not gonna' find that out at a public hearing," he said.
Commissioner William Kissel, a lawyer in Lake Placid who has written professional journal articles showing his support for the type of regional zoning imposed by the APA, entered the discussion.
"Concerns were raised by letters, claiming there was a violation" Mr. Kissel said. "There is a legitimate difference of opinion."
"The fact that the staff has determined a position is not relevant," he asserted. "I'm not impressed with staff."
Continuing at length, he said, "Most important to me is that there is considerable public concern. I can't tell if it is fanned."
"It's common sense, in a project like this, that we would like to have a public hearing," he said. "That's a burden on the applicant. That's gonna' slow the applicant. That's the price we pay."
Mr. Wray joined in. "I'd like to associate myself completely with Mr. Kissel's statement."
Mr. Mezzano protested. "The fact that there is a house there and someone might see it is not offensive."
After even more discussion, Joseph Rota, the executive director of the Adirondack Park Agency Local Government Review Board, an agency established by the legislature to monitor the APA, made a short statement.
"This is a legal site. It exceeds the legal setback," Mr. Rota said. "At a public hearing, you're going to hear the comments you've already heard."
Mr. Kissel made a motion to go to a public hearing. Because only the committee members could vote on August 9, although the full commission engaged in the discussion, there were only four votes, Mr. Kissel and Ms. Roberts in favor and Mr. King and Mr. Frenette opposed.
The defeat of the motion had little meaning, however. The next day, Ms. Roberts made a committee presentation to the full board of commissioners for their decision about the public hearing.
Mr. Frenette reversed his position to favor the public hearing. "Last night I was awake a lot of the night," he said. "...I read the criteria for a public hearing. At least five of the eight criteria are in this project. There are questions raised. The hearing would allow the applicant to hear and address the concerns of the agency staff. The other issue, visibility...It would allow us to get a take on invisibility and substantial invisibility."
Mr. Townsend pressed the issue of "resources."
"Lens Lake is a unique area," he said. He asked Mr. Saehrig, "Do you agree that the uniqueness of the resource is to be addressed in a public hearing?"
Mr. Saehrig and Mr. Curran said that they expected to add a number of additional recommendations as a result of the hearing. After pointing out that he would ask to restore the shoreline area, Mr. Saehrig said that there was an alternative site on the property, which would be a "major modification." Mr. Curran said, "We're likely to impose an imposition of no further cutting on the site."
"Some of the concerned citizens are likely to produce simulations that could be visible from the lake," Mr. Curran said.
During more lengthy discussion, Mr. Townsend said, "If we're attempting to gain information to impose additional conditions, I support a hearing."
Recalling the photograph provided by the adjoining owner, one member of the staff pointed out that the site might be seen from Spruce Mountain. He pointed out that they would be discussing what consideration would be given to a woods road that is not a marked trail, but that this could become more important under the development of the UMP. (The Unit Management Plan for Wilcox Lake Wild Forest, the region of State-owned land in this part of the Adirondacks, is to be developed during the next few years.)
Mr. King asked, "If the vote is to go to a public hearing, how much of a delay is involved?"
APA staff attorney Mitchell Goreski gave a partial answer, "Thirty days to the hearing," adding, "There would be a scoping session to limit issues and parties at the hearing. After that, it's open-ended."
Mr. King continued, "If the issues are settled, would there be many? Few? It's unlikely now to be seen from the lake. Seen from Spruce Mountain? Somebody's gonna' come in with a computer simulation. I'm not sure we want to get to this."
The staff explained, "There are references to hiring an attorney. Tim Smith was here yesterday...None of the letters has said there's a public viewing point except the lake...Tim Smith will probably represent a group of adjoining neighbors. All will be consolidated."
Mr. Mezzano remarked, "When Commissioner Frenette went through guidelines, some are so subjective. They could be interpreted either way. I wonder how many of the letter writers have actually seen the plans, of 80 or 100. I wonder if they are prompted by neighbors."
"I find the project in keeping with the character of the Adirondacks," Mr. Mezzano said. "Whether it can be seen from the mountaintop is not relevant." He pointed out that the project should be reviewed on the issues set out in the APA law, "not on the basis of whether people are going to see it from a canoe, or a lot of letters."
Mr. Frenette said, "I tip in favor of a public hearing. It gives the applicant a chance to be heard. It is our chance to have a dialogue with the applicant, to have an objective vote."
The motion to have a public hearing passed seven in favor, with Mr. King and Mr. Mezzano opposed.
DEC Administrative Judge Maria E. Villa set the first public hearing date for September 12 at the town hall in Stony Creek. After the terrorist attack, the first hearing was rescheduled for September 26, when it was indeed held, soon after Keith McHugh closed on the property. But this was only the beginning of the hearing process. For the hearings, Mr. McHugh had engaged a law firm to represent him, escalating his project application expense a significant notch. Mr. Hutchens also had his attorney. Although Mr. Hutchens had not stopped the application from being declared complete, he had achieved his all-important purpose of bringing the project to an expensive and time-consuming public hearing. Every one of the issues that Mr. Hutchens had raised were still alive, the supposedly illegal shorefront cutting, wetlands, shoreline, the supposedly unique significance of Lens Lake and its floating bogs cited by the Adirondack Council, and the visibility of the proposed house. Even water quality was on the table. Lawyers would now argue their points about the scope of the review before a judgeeven before the formal hearing on the issues takes place.
The remarkable collection of letters in the APA file is a testimony to the effectiveness of a single-minded, influential neighbor joined by a few other people who want to obstruct a project on nearby land.