Property Rights Foundation of America®

Carol W. LaGrasse
P. O. Box 75
Stony Creek, NY 12878
(518) 696-2332 or 5748

 

November 9, 2001

The Hon. Administrative Law Judge Maria Villa
New York State Department of Environmental Conservation
Office of Hearings
625 Broadway, First Floor
Albany, NY 12233-1550

Re: Adirondack Park Agency Project No. 2000-158
"Cold River Properties"
Proposed Single Family Dwelling

Response to letter by Adirondack Park Agency Counsel,
Dated October 24, 2001

Dear Judge Villa:

This letter is in response to the APA Senior Attorney Mitchell Goroski's letter to you of October 24, 2001. I will refer to the points in his letter as the position of the Adirondack Park Agency (APA).

Introduction.

The Adirondack Park Agency mistakenly equates the statutory authority granted to the APA to regulate aesthetics with a supposed grant of authority to regulate the visibility or invisibility of single family houses from shorelines, highways, and mountaintops (and possibly other State-owned land). The APA does not have the authority to regulate such visibility, nor to require invisibility in this connection. The APA is further mistaken in assuming overly broad powers to regulate aesthetics of single-family houses. It should be outside the scope of the hearings for this project to include considerations of visibility and invisibility of the single family house and accessory structures. In addition, contrary to the APA's assertion, it also should be outside the scope of the hearings to include APA power to restrict shoreline cutting beyond that expressly stated in the APA law as I explain below.

Please refer to my final hearing statement mailed to you with my letter of September 29, 2001, which is hereby incorporated by reference.

  • I will first address the APA's claim to authority to regulate visibility and to require invisibility of a single-family house and its accessory structures.

In the context of one apparent overarching, mistaken claim that I have somehow claimed that the APA cannot regulate aesthetics, the APA confusingly makes a number of arguments that the Agency can regulate aesthetics:

"Notwithstanding the assertions of Carol LaGrasse, the Agency has clear authority to consider a project's impact on aesthetics in its review of a Class B Regional project in a town which has not adopted an Agency-approved local land use program." (p. 1, APA letter. See also rest of p. 1 and p. 2, APA letter.)

(I do not dispute the APA's power to review Class B Regional Projects, as might by inferred from the APA arguments.)

This section of the APA letter appears to be an attempt to refute my point that the APA can neither regulate visibility of a single family house and accessory structures nor require invisibility of the house and accessory structures. (From this point forward I shall simply refer to a single-family house and accessory structures as "a single-family house.")

I do not claim that the APA cannot regulate aesthetics. However, the APA can only regulate aesthetics in the context of its statutory jurisdiction over a project and certain aspects of a project.

  • The APA's statutory authority to regulate aesthetics does not include the authority to regulate visibility or to require invisibility of a single family house.

The "aesthetics" of a house does not include its visibility or invisibility:

Under the APA rules and regulations, "aesthetics" is defined as follows:

"Section 574.5. Further definitions of the development considerations. Those development considerations of section 805(4) of the Adirondack Park Agency Act which are pertinent will be considered by the agency in its review of projects. A list of the development considerations containing certain further definitions as set forth below:

"(a) Natural resource considerations."

The seventh natural resource consideration is 'aesthetics':

"(7) Aesthetics means harmonizing land use or development with the natural environment."

Nowhere does either the APA law or the regulations state that aesthetics include issues of visibility or invisibility.

"Harmonized" is not defined in the regulations, but it means interacting in a pleasing way, agree in feeling, combine in a way to make up a pleasing whole. "Harmony" is defined as a pleasing combination of elements as a whole.

To "harmonize" does not mean to make invisible. In fact, it means quite the opposite. A piece of music without harmony has only a single line of notes; there is no harmony, no interacting simultaneous or counterpointal notes. For the APA to impose a landscape without visibility of the land uses and development would not "harmonize" them. The APA would be eliminating "harmony" entirely. Only the forest would remain. However pleasing the forest element alone may be to some, the exclusive allowance of visibility of that element to the exclusion of all others does not harmonize the land use and development with its natural environment; it merely hides the land use or development.

The APA cites a denial of an application to build a boathouse as the basis for the ability of the APA to regulate aesthetics. (McCormick v. Lawrence, 54 AD2d, appeal denied 41 NY2d 801, appeal dismissed 41 NY2d 900, as cited in APA letter, p. 2) However, boathouses are neither primary nor secondary uses in any APA law land use classification, whereas single family dwellings are secondary uses in Resource Management land use classification, which is where the Keith McHugh property is located. Citing a case of the APA's rejection of a boathouse is of questionable relevance to the project under consideration.

Furthermore, although "marinas, boat yards and boat launching sites" are listed for every other land use classification as secondary uses, in Resource Management land use classification they are not listed. Without access to McCormick's actual permit application, one must reserve judgment about the applicability of McCormick, not knowing whether that application was one for an incompatible use even if a boathouse were to be considered equivalent to a "marina, boat yard or boat launching site."

Furthermore, the citation of the decision in McCormick is irrelevant because it deals with considerations in the context of an issue that I have not raised. The McCormick decision reaches the constitutional holding: "In our opinion, the Legislature has provided sufficient standards to guide the agency in its review of projects and thus we find no unconstitutional delegation of power to the agency." (Matter of Levin v. Whalen, 39 NY2d 510. Id. at 124-5, as cited on p. 2 of APA letter) But I have not raised the question of the constitutionality of the delegation of power over aesthetics to the agency. My concerns herein relate solely to the APA's power within the context of APA law.

  • The arguments related to the character description of Resource Management land use areas on page 3 of the APA letter also fail to convince.

The APA letter correctly quotes portions of the APA law related to the character of Resource Management lands. But the portions quoted at length fail to convey the whole picture. For instance, the APA letter quotes the law accurately, "Finally, resource management areas will allow for residential development on substantial acreages or in small clusters on carefully selected and well designed sites" (Section 805.3.g.(2)), but fails to follow this citation with the one that applies to the subject parcel:

"Single family dwelling on existing vacant lot. One single family dwelling or mobile home shall be allowed to be build on any vacant lot which was on record on the date that this act shall become a law regardless of the overall intensity guidelines..." (APA law 811.1.a)

This exemption under Section 811.1 applies "(n)otwithstanding any other provision of this article," which is an indication of the clear intent that the intensity guidelines were obviated.

The exemption negates the relevance of the intensity requirements. The clustering requirement cannot be applied to an individual single-family dwelling. The inferred prohibition in the citation of the reference to "substantial acreages" is irrelevant.

The selected citations from the APA law's description of Resource Management leave a misimpression that Resource Management is to be all wild forest land. But the APA law states that primary uses in Resource Management areas also include agricultural uses, agricultural use structures, forestry uses, forestry use structures, private sand and gravel extractions, public utility uses, hunting and fishing cabins less than five hundred square feet of floor space. Secondary uses include single family dwellings, individual mobile homes, hunting cabins over five hundred square feet, campgrounds, group camps, ski centers and related tourist accommodations, agricultural services, sawmills, chipping mills, pallet mills, commercial sand and gravel extractions, mineral extractions, mineral extraction structures, watershed management and flood control projects, sewage treatment plants, major public utility uses, municipal roads, and golf courses.

The APA letter continues with arguments based on the character description for Resource Management areas. (APA letter, p. 3) "The secondary uses on such list are those which are generally compatible with such area depending upon their particular location and impact upon nearby uses and conformity with the overall intensity guidelines for such area." (APA law, Section 805.3.a, emphasis added in APA letter) The APA letter states that the determination of whether the single family dwelling at issue is compatible "turns on the consideration of the project's impacts, including aesthetic impacts, on adjoining and nearby uses." (APA letter, p. 4)

However, this detailed citation of the land use character description in the APA law fails to address how visibility and invisibility come into the process. "Harmony," not visibility or invisibility, is the meaning of the aesthetics feature in APA law.

  • The APA argues (p. 4) that "The amendment that Ms. LaGrasse refers to simply...transferred single family dwellings from the list of Class A projects within 300 feet of a Federal, State or County designated highway to the Class B Regional project list 810 (2) (d) for Resource Management areas."

The APA's argument conflicts with the actual law.

As pointed out in my statement, the original APA law classified as "critical environmental areas" in Resource Management, I should further add, under Class A Regional Projects, lands within six hundred sixty feet of the edge of the right of way of federal, state, or county highways. The final law changed this to three hundred feet and added the words, "except for an individual single family dwelling and accessory uses or structures thereto."

Was the original wording which did not take exception for single family houses "transferred" to Section 810.2.d? No. This material was not transferred to Section 810.2.d under Class B Regional Projects from where it formerly was under Class A. In fact, "critical environmental areas" do not appear under Class B Regional Projects at all. Nor does this material occur under any other heading or subparagraph without a heading under Class B Regional Projects. The material cannot be found anywhere else under Resource Management.

  • The APA claims (p. 4), "In short, Ms. LaGrasse is confusing a change in jurisdictional thresholds for Class A Regional projects with the Agency's authority to consider several factors, including aesthetics, in its review of a jurisdictional project."

As previously explained, the APA has no specific basis, for claiming a "change" in jurisdictional thresholds. Therefore, the APA argument that I am "confusing" this is invalid. The only argument remaining to the APA is that it always had and still retains, even though specific authority in the Class A Regional Project context was taken away, authority to regulate all single family dwellings along federal, state, and county highways as "critical environmental areas." This is clearly contrary to the legislative intent demonstrated by removing these from "critical environmental areas."

In fact, only under Class A Regional Projects do "critical environmental areas" appear. Actually, single family houses are primary uses in Rural Use and all less strict zones, and are merely demoted to secondary use in Resource Management, not eliminated from Resource Management. Under resource management, the law states "(R)esource management areas will allow for residential development on substantial acreages," referring to the 42-acre per house minimum, which is waived by law for preexisting lots, in this case a generous 7.9 acres.

Since what would be involved here is the distance from a town highway, there would be even less impact.

The cultural argument should not be missed here, also. The people of Stony Creek built these roads with pick and shovel, with the labor of their own bodies and their beasts of burden, such as oxen, at convenient distances from their little houses and barns over a century ago. This historic fact was recognized inadvertently by the Lens Lake Road opposition witnesses at the hearing and in their letters, where they said that none of their houses were located near the lake. The motivation in the older houses, which are the most common, was nothing about preserving the lake, however. It was just to be relatively convenient in the labor-intensive situation where they lived. It is very likely that because Assemblyman Glenn Harris understood this history, which is true throughout the Adirondacks, and because he understood the cultural pride in their homes and the practical necessities related to ordinary life for the residents of the Adirondacks that he had this onerous restriction deleted (not transferred).

Furthermore, the Governor's Program Bill to implement Twenty-first Century Commission report recommendations for the APA law serves as further proof that the treatment of land along highways as "critical environmental areas" that ought to be kept wild is not part of the law.

"'Critical environmental area' shall mean...(c) in low intensity use, rural use and resource management areas, any area within one-eighth mile of the edge of the right of way of a county or town highway designated by rule or regulation of the agency as a major travel corridor, or as a highway of exceptional scenic beauty;...in no event designate more than ten per centum of the total mileage of county and town highways in any town as critical environmental areas pursuant to this subdivision." (Section 802, subdivision 20, p. 12, Governor's Program bill, #254, 5/19/92, underlining in original, to indicate new material)

  • The APA letter alleges that, "And the argument that the 806 shoreline cutting and setback restrictions control here clearly fails to acknowledge that these are minimum restrictions that may apply (see 806(1)) and that an undue adverse impact analysis might impose stricter conditions."

But Section 806.1.a of the APA statute dictates an affirmative right for the property owner to cut vegetation, including trees, along a shorefront. The law states that for the shorelines of lakes:

"(3) The removal of vegetation, including trees, shall be permitted on shorefront lots provided the following standards are met: (emphasis added)

"(a) Within thirty-five feet of the mean high-water mark not more than thirty percent of the trees of six inches diameter at breast height existing at any time may be cut over any ten-year period.

"(b) Within six feet of the mean high-water mark no vegetation may be removed, except that up to a maximum of thirty percent of the shorefront may be cleared of vegetation on any individual lot..." (Section 806.1.a, APA law)

The APA letter mistakenly states that the above paragraphs provide mere "minimum" standards for regulation that can be made stricter by the requirements of "undue adverse impact analysis." The words "at a minimum" occurs in two places in the introductory paragraph of "Shoreline restrictions." First, generally, and, second, applied specifically to "any local government in the adoption and enforcement of a local land use program." (Section 806.1, APA law) However, in evaluating the application of the use of the word "minimum" in a general sense, the wording of the shoreline cutting paragraphs differs from all the other paragraphs, which are about lot widths, setbacks, shoreline frontages, and on-site sewage drainage fields and septic pits. None of these standards have the words, "shall be permitted" ... "provided the following standards are met." (emphasis added)

The wording of Section 806.1.a provides a clear restriction on the power of the APA to regulate shoreline cutting. And, considering the strictness of the rules as incorporated into the actual APA law, the restriction is perfectly logical from an environmental point of view if one divorces one's reasoning from the extreme wildlands concept for Resource Management and Rural Use land use classifications that gained fashion in 1990 at the time of the Twenty-first Century Commission report.

The extreme environmentalists who hold a great deal of sway at the APA have been dissatisfied from the time of the APA law's enactment with the fact that shorelines can still be slightly developed. The Twenty-first Century Commission's recommendations were an attempt to close the gap between the actual law and the way the environmentalists wanted the law to be written.

Following the recommendations of his Commission, in 1992, the Governor's Program bill attempted to declare lakeshores as "critical environmental areas," using the following wording:

"'Critical environmental area' means...(d) in rural use and resource management areas, any area within one-eighth mile of the shoreline of a lake or pond." (Section 802, subdivision 20, page 12, Governor's Program Bill #254, 5/19/92, underlining in original, to denote new material)

The unsuccessful plan to convert areas 660 ft. from the shores of water bodies such Lens lake to "critical environmental areas" demonstrates that these areas were not so protected in the original APA law, as enacted and amended in 1973 and as it stands today.

For citations and an in-depth discussion of the failed recommendations in the all-important Twenty-first Century Commission report to hide buildings from roads and lakeshores, please refer to my revised September 26, 2001 Statement for Public Hearing on this project application, noting in particular the following quotations from the Twenty-first Century Commission report:

"In harmony with the spirit of the Park, buildings should be screened and set back from roads and lakeshores and they should blend in with the natural background..." (quoted from "General Development Principles," under "Aesthetics." See pp. 75-76)

"164. New construction outside of hamlets should be screened from transportation and recreational corridors by indigenous vegetation. Where screening will not preclude visibility, a setback of 200 feet from the edge of the corridor should be required. Because topography, setback and vegetative buffers may not preclude visibility in all cases, standards to minimize visual impacts should be developed and may include standards o n roof color, exterior materials and visibility against the skyline." (emphasis added)

The section on "Shorelines" of the Twenty-first Century Commission report (p. 81) demonstrates the desire to change policy to require invisibility from shorelines in recommendations 184, 185, and 187:

"184. No shoreline development should be permitted in rural use or resource management areas."

"185. All structures should be set back at least 200 feet from shorelines."

"187. To minimize the visibility of lakeshore development and protect water quality, no trees shall be cut within 200 feet of a shoreline, except for a path up to five feet wide and designed to minimize visibility of structures. Owners of shorefront property outside hamlets where cutting has already occur(r)ed should be required to replant the area between the existing structure and the shore with indigenous trees and shrubs by the year 2000 to minimize visibility of existing structures." (emphasis added in the preceding three references)

The Twenty-first Century Commission also recommended:

"No development in areas visible from scenic vistas." (p. 76, emphasis added)

All of these recommendations in this watershed report marked an attempted change from a policy of harmony of land uses and development with the resources of the Park to one of invisibility. But, as pointed out in more depth in my public hearing statement, the recommendations never became law. The actual law, however, does not suit the APA. The APA letter replying to my public hearing statement mistakenly reflects the policies sought in the failed proposals as though they had become law.

Summary and basic legal principles

The arguments in the APA letter should be rejected because they would sustain regulatory powers that would exceed the Agency's statutory authority. The scope of the hearings should not include issues that are beyond the APA's statutory authority.

"Under its power to make rules and regulations, an agency may not adopt any which contravene or conflict with statute." (Levine v. N.Y. State Department of Social Services, Sup., 434 N.Y.S. 2d 572).

"An administrative agency may not made regulations more restrictive than the statute under which it is promulgated." (National Elevator Industry v. State Tax Commission, 412 N.Y.S. 2d, 195)

"...we recognize the well-established rules which limit the powers of an administrative agency to those expressly conferred by the enabling act or those necessarily implied therefrom. Agency promulgated rules and regulations may only implement the law in harmony with the statute." Summerson v. Barber, 462 N.Y.S. 2d 325, A.D. 3 Department 1983. cf. Jackson V. Blumm, App. Division, 436 N.Y.S. 2d, 358)

  • Conclusions

Expansion of the definition of "aesthetics" to include visibility and invisibility of the single-family house from Lens Lake, and possibly from Lens Lake Road and/or Spruce Mountain and other State-owned land within the scope of the hearing review would exceed the APA's statutory authority. The scope of the hearing process for the subject project should not include issues of visibility or invisibility of the single-family house from the lake shore or town highway or from any mountaintop or other State-owned land.

The APA's argument that "standards in law" in connection with the shoreline setback standards are only "guidance" that does not necessarily constrain the agency are also an attempt to exceed its statutory authority. The scope of the hearing process should not include considerations of APA restrictions of shoreline cutting beyond those allowed under Section 806.1.a. (3) (a), (b), and (c).

Thank you for the opportunity to respond to the APA letter.

Respectfully,

Carol W. LaGrasse

Copies of this letter are being served by mail to the following:

Madeline Sheila Galvin, Esq. &
James E. Morgan, Esq.
Galvin and Morgan
Attorneys for Keith McHugh
217 Delaware Avenue
Delmar, NY 12054

Mitchell J. Goroski, Esq., Sr. Attny. &
Thomas E. Saehrig, Environmental Program Specialist
Adirondack Park Agency
P. O. Box 99
Ray Brook, NY 12977

Timothy R. Smith Esq.
Smith, Dwyer and Bliss, P. C.
Attorneys for William Hutchens
33 Saranac Avenue
Lake Placid, NY 12946

Mr. John P. Studer
Designated Representative of
Greenhaven Fish and Game Club
411 Roaring Branch Road
Stony Creek, NY 12878

Joseph M. Moore, Park Monitor
Designated Representative of
Adirondack Council
P. O. Box D-2
Elizabethtown, NY 12932-0640

Peter Bauer, Executive Director
Designated Representative of
Residents' Committee to Protect the Adirondacks
P. O. Box 27
North Creek, NY 12853-0027

 

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