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No central source for information about overlapping permit requirements

Overlapping Jurisdictions Hit Home with Couple's Dream House

Town Failed to Warn Couple about Corps of Engineers' Power over Wetlands

By Carol W. LaGrasse
June 2, 2003

Just another wetlands infringement on private property rights...But a quick reading of a story in the Albany Times Union on April 3, touches the heart.

Amritesh and Sunita Singh, a couple who had emigrated from India about fifteen years ago, had bought a little vacant plot of land in Niskayuna at the Schenectady County tax auction so that they could build their dream home, "where they could raise their children and grow old," according to the article by Danielle T. Furfaro. After they bought the land for $7,000, the U.S. Army Corps of Engineers told them that because of wetlands on the property, they could not build. Mr. Singh said, according to the newspaper, that officials from the town of Niskayuna had shown him wetlands maps depicting that the property had no wetlands. The paper quoted the town attorney, Eric Dickson, "The town building department doesn't speak for the Army Corps of Engineers and the Department of Environmental Conservation."

How true! Advocates of home rule would rue the day when town officials would be required to be responsible for informing property owners of the jurisdictions of overlapping state and federal agencies that have power over the use of private property.

A similar incident in Montgomery County was investigated by the Albany Channel 10 during April, where, according to the report, a woman in the Town of Charleston bought land and later received a letter from the State Department of Environmental Conservation (DEC) that the mobile home she'd placed there was illegal because of wetlands.

The property owners of the State of New York desperately need a clearinghouse of information about permit requirements from overlapping local, state and federal agencies. At the present time, property owners have no reasonable, efficient way to find out what agencies have jurisdiction.

One of the most tragic situations that can happen to a property owner is that the individual applies for a building permit, the local town or the county grants the permit, and later the New York State DEC or the U.S. Army Corps of Engineers comes into the picture. In the Niskayuna situation, involving the Corps of Engineers, it would have been no help to the young couple to look at official wetlands because these are DEC maps, to which the Corps of Engineers does not restrict its enforcement. In addition, DEC often routinely enforces wetlands rules on land it designates that is outside the boundaries of wetlands on its own official maps.

Either of these agencies sometimes exerts its power to stop the building or issue a wetland violation. Their complicated wetlands rules are separate and different from each other. Only a specialized wetlands or property rights lawyer knows when they have jurisdiction.

It is almost impossible for ordinary property owners to know about all the agencies where they have to go for permits, because — in addition to town and county building, planning and zoning, and other departments — there are regional, state, and federal agencies that can come into play. In addition to approximately ten categories of local and county agencies, approximately twenty state, regional, and federal agencies have potential jurisdiction over property owners in various regions of New York State.

For instance, north of Albany in twelve counties in the Adirondacks, the Adirondack Park Agency (APA), a State zoning agency, has jurisdiction over one-family houses on much of the land. People often illegally build improvements, including permanent homes, without realizing that they need an APA permit. Even driveways in wetlands require an APA permit, which is a foible to unknowing property owners with hostile neighbors. Property owners along the Adirondack Park boundary, which has few markers, have built houses without the required permission and faced severe penalties.

Currently, no single agency has the responsibility to warn the permit-seeking property owner about this hazard of multiple jurisdictions. Later, the property owner may be fined and/or ordered to remove the new structure. Federal prison terms have been given for wetlands violations. There is no protection to the property owner for costs due to detrimental reliance on the local building department's granting of a permit. The Legislature should place the responsibility in one department of the State government, such as the Department of State, to provide a full list of potentially jurisdictional agencies at every level to the property owner whenever an application is made for a local building or zoning permit.

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