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String together all the adjacent nearby improvements to accumulate square footage

APA DEALS BLOW TO ELDERLY COUPLE'S HOME IMPROVEMENTS

An Expansive Theory of What Comprises a Single Structure

By Carol W. LaGrasse

The Adirondack Park Agency has apparently won its enforcement against Marilyn and Milton Wechsler, who have been improving their summer residence, a lake front cottage that they bought in 1957 after the Loon Lake Hotel in Franklin County burned down. The Wechslers ran into the wrath of the Adirondack Park Agency, or APA, when they built a shorefront erosion control structure known as a gabion wall in the waters of Loon Lake, just offshore from their cottage there in the town of Franklin.

A gabion wall is a metal cage filled with heavy stones that is used as a foundation, in this case as a wall.


Marilyn and Milton Wechsler at the Supreme Court Appellate Court Division, Albany, on April 29, 2011, the day their appeal was argued.

Photos of the Wechsler's site improvements at Loon Lake
August 2011 Photos provided.

The unanimous ruling on June 9, 1022 of the New York State Supreme Court Appellate Division in Albany, which was written by Justice Egan, hinged on the failure of the Wechslers to file a challenge to the APA's May 2009 enforcement determination within the 60-day statutory time limit. Because the ruling did not hinge on the specifics of the charges, all of the APA's allegations were upheld because the gate to appeal them was slammed shut.

To fully understand the APA's stretch of jurisdiction to get the Wechslers, it is necessary to understand that in its determination, the APA did not find that the 150 foot long gabion wall, which was built during 2007 and 2008, is inherently within its jurisdiction, considering that it is not within the shoreline, but out in the water. Also, in the notice of violation, the APA had not determined that the driveway was within its jurisdiction. And, the APA had determined that the other improvements, two wooden staircases, the flagstone patio and the stone walls, are each less than 100 square feet in size, the area that would have triggered jurisdiction.

To bring all these features of the Wechsler's site improvements into its clutches, the APA developed a theory that all of the separate structures—the gabion wall, staircases, patio, and stone walls—are one "inter-connected accessory structure," even though none of the structures is attached or physically connected to any other. Instead, the structures are adjacent to or near one another.

The APA ordered the Wechslers to remove their driveway and other structures and dismantle the gabion wall, as well as to pay a $10,000 fine. State Supreme Court Judge David Demarest of Franklin County dismissed the Wechslers' petition on the basis that it was not timely.

The Wechslers' believe that the APA's attempt to extend its jurisdiction beyond the authority given to it by the Legislature should have changed the status of their appeal. They pointed out that if there is a claim that an agency has no jurisdiction over a particular subject matter, the 60-day statute of limitations does not apply, citing New York State Appellate Division rulings that "writ of prohibition" is not subject to the 60-day statute of limitations.

Mr. and Mrs. Wechsler were represented by Matthew D. Norfolk of Lake Placid. The Appellate Court oral argument was by Michael J. Hutter of Albany.

What motivates the APA to continually stretch the law to expand its powers to the detriment of the well-being of the residents? The treatment of the Wechslers by the APA and the courts is especially galling, considering the ages of the retired couple (she is 80 and he is 85 years of age) and that their son has been tenaciously recovering from a disabling stroke since the age of 30. The patio and staircases enhance his ability to enjoy the site.

The quality of mercy is not strained,
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blessed;
It blesseth him that gives and him that takes:
'Tis mightiest in the mightiest: it becomes
The thronèd monarch better than his crown.

William Shakespeare, The Merchant of Venice

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