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Couple on Lake George Freed of 21 Years of Confusion

The Adirondack Park Agency (APA) was bloodied in a sixteen-page decision by Essex County Supreme Court Judge Richard B. Meyer on June 2 reversing the agency's enforcement decision against Joseph and Patricia Zelanis, who own a quarter-acre waterfront lot on which they built their house on the east shore of Lake George in the town of Putnam in Washington County.

Six of the APA's repeated abuses of its power were called to task in the court ruling reversing its enforcement committee's 2009 decision in connection with a residence and dock dating back into the 1980s within the twenty-three single family dwelling Royal Anchorage Estates Subdivision.

The Zelanis couple had built their house with their own hands, as they could find the time and money. It has 2,040 square feet of floor space and an attached garage. To comply with the developer's requirement included in the deed that the house be a minimum of 1,500 square feet, that amount of square footage was part of the application to the APA. The agency understood at the time that this was the developer's minimum.

The house has three bedrooms, plus a study, storage room, and a basement. The couple installed their individual wastewater system consisting of holding and septic tanks because the subdivision had not built a sewage system. In 1999 they added two covered porches. The first, a covered entrance to the house from the driveway, is connected to the entrance to the residence on the opposite side of the building from the shoreline. The second porch, which is screened in, is located on the southwesterly side of the house. A lawn and vegetation shield it from the lake.

The APA permit did not limit the number of bedrooms, bathrooms, porches or decks and there was no language indicating that a porch or deck was to be included as part of the "1,500 square feet of floor space."

In 2006, the Zelanises constructed a U-shaped dock, which was covered with a roof, and includes an area on the middle where boats would be secured. In the original permit, additional boathouses were not permitted, but each shoreline lot was allowed to build just one uncovered dock. The Zelanises' U-shaped dock was referred to as a "boathouse" in the designs, but no APA permit was sought, on the basis that the Zelanises asserted that it is only a covered dock.

On the original permit, the project sponsor was to submit to the APA for approval the final engineering and construction details for the common sewage disposal system to which each lot was to connect once the system was completed.

The Putnam Sewer District and Royal Estates finally obtained a permit from the APA to put in a community waste water system in 2007 and finished construction in 2009. The permit required that even existing houses hook up to the system. In addition, the permit stipulated that any new single family dwellings connected to the system have not more than a total or three rooms that could be used as bedrooms.

The APA demanded in 2009 that the couple remove the two covered porches as well as the roof and supporting structures of the waterfront dock or boathouse so that all that remains would be the U-shaped dock authorized by the Lake George Park Commission, connect to the recently constructed common sewage system, record a deed restricting the use of the house to no more than three bedrooms, and pay a civil penalty of $5,000 to resolve violations. In 1989, the APA had given the Zelanises a violation (never completing the enforcement) that the house exceeded 1,500 square feet, but now the APA allowed the actual dwelling to consist of the 2,040 square feet exclusive of the attached garage.

The couple argued that the porches do not constitute living space or floor space for the purposes of the square foot limitation. But the APA applied a definition of floor space that included porches from the rules that were adopted nine years after the porches were constructed.

The court ruled that the APA's application of the rule violates the well-established "law of this state that nonconforming uses or structures, in existence when a zoning ordinance is enacted, are, as a general rule, constitutionally protected and will be permitted to continue, notwithstanding the contrary provisions of the ordinance…The petitioners established a vested interest in the porches since construction was completed more than ten years prior to the commencement of the enforcement proceeding." The court annulled the APA's interpretation.

The APA argued that it had been using a definition of square feet of floor space consistent with the new rule for a number of years, but it had not made this point when it issued the violation. The court overruled this thinking: "It has…long been the rule that judicial review of an administrative determination is limited to the grounds presented by the agency at the time of its determination."

The court went further, stating that even if it were to consider the past practice claim, it would fail. An administrative agency may not regulate under the guise of interpretation, the court pointed out. And, under the guise of interpreting a regulation, an agency cannot create defacto a new regulation. Speaking perhaps unknowingly to a repeated APA practice, the judge also cited earlier court decisions that past agency practice is not binding precedent.

The court dug deeper, proving that the APA's past practice defining floor area practice was not consistent. The APA was caught up short in its citation of the 1989 Ryan case that the floor space included the unfinished basement. However, the 2008 regulation specifically includes only finished basements in the floor space calculation. The court also meticulously dissected several additional examples of the APA's inconsistency in whether unfinished basements would be included in floor space calculation.

The court concluded that the APA's determination of what constitutes floor area is arbitrary because there was nothing on the record to explain why it changed its mind on the calculation method.

The court rejected the Zelanises' argument that the U-shaped structure is merely a covered dock, since the original permits prohibited boathouses and allowed only one uncovered dock and the drawings showed the structure with a boat moored inside. The court ordered them to remove the roof and supporting structure.

The court dealt logically with the situation related to the new common sewage disposal system, considering the Zelanises did not have any common or municipal sewage system to connect into when they built their house. Actually, the connection to the system was not required in the original subdivision permits, but was indeed required in the permit issued to the developer and the Town of Putnam in 2007, 21 years later. The court ruled that the issue be sent back to the APA for further reconsideration in accordance with concerns such as financial consequences.

The court held that the APA violation notice did not allege any violation or any condition of the permits limiting the number of bedrooms, which is a violation of due process, because the material facts and documentary evidence and provisions of law on which the charge is based must be noticed.

In addition, the permits had no three-bedroom per dwelling limitation, the only reference being to the overall design of the common sewage system being based on the DEC standards for houses with three bedrooms.

Finally, the most arresting aspect of the decision — the abuse that has been repeated time and time again: the command that the property owners who violate the APA law record a deed limiting the use of the property to the restrictions set forth in the settlement, in this case that a filed deed limit the number of bedrooms in the residence to three. The court stated:

"An administrative agency may not amend a permit through the guise of enforcement especially when resort may be had to available procedures to amend of modify the permit, in this case by modifying the permit for activities exceeding the scope of the project or varying the project as described in the permit and the committee can direct the executive director to institute proceedings for that purpose."

The court said that the APA's enforcement remedies for violation of the APA Act, the regulations, an order or permit, are limited by statute to "a civil penalty of not more than five hundred dollars for each day or part thereof during which such violation continues" and/or "an action or proceeding to prevent, restrain, enjoin, correct or abate any violation of, or to enforce" such Act.

The court annulled the order directing the Zelanises to execute and record the deed limiting their property to three bedrooms because no authority to direct a party to execute or record a deed is vested in the APA by statute or regulation.

In addition, the civil penalty was denied as excessive because it could not be determined which amount of the total penalty was assessed for each violation, and the redetermination of the penalty was remanded to the APA.

Attorney Matthew E. Norfolk of Lake Placid represented Joseph and Patricia Zelanis.

- Carol W. LaGrasse

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