Property Rights Foundation of America®

2. Adirondack Park Agency
(Latest update 2001)

P. O. Box 99, Route 86
Ray Brook, NY 12977
Telephone: (518) 891-4050
Fax: (518) 891-3938

Web site: www.northnet.org/adirondackparkagency

Key Personnel (1999)

Richard H. Lefebvre, Chairman
Daniel T. Fitts, Executive Director
Charles Fox, Chief Counsel (resigned Mar. 2001, not yet replaced Apr. 2001)
Barbara Rottier, Assistant Counsel
John S. Banta, Director of Planning
Edward J. Hood, Assistant Planning (Regulatory Revision Process)
Raymond P. Curran, Supervisor, Natural Resource Analysis
William J. Curran, Director of Regulatory Programs
Mark Sengenberger, Assist. Dir. of Regulatory Programs
Sandra Bureau, Dir. Interpretive Programs (Paul Smiths)

Membership

(Not Applicable-See Board of Directors)

Finances (1999)

Budget: $3,556,800

Coalition Involvements

"Although a state regulatory agency, the APA is strongly influenced by the Adirondack Council and other environmental groups. A minor agency scandal exemplifies this point. While covering an APA meeting, a reporter accidentally discovered that the agency's fax machine was programmed with numbers for the Adirondack Council and other environmental organizations. There were no numbers from any Adirondack or local government organizations programmed." -(First edition of this report)

The Adirondack Park Institute, Inc.
Linda Bennett, Exec. Dir., Box 256, Newcomb, NY 12852
(518) 582-2022
E-mail: api@netheaven.com
"The Adirondack Park Institute, Inc., is a New York State not-for-profit 501(c)(3) charitable organization founded in 1989 by a statewide constituency of private citizens interested in raising money to provide environmentally focused educational curriculum and resources to our communities. Thus, a relationship between the APA, Inc. and the Adirondack park Visitor Interpretive Centers located in Paul Smiths and Newcomb, New York, was formed to facilitate that goal." - APA 1999 annual report, p. 26.

VIC funding has come from:
Newcomb Lions Club
Town of Newcomb
International paper Company Foundation
Stewart's Shops
SEFA/United Way
Simmons Foundation
Adirondack Community Trust
New York State Electric and Gas Corporation

Organizational Description and Goals

The Adirondack Park Agency was created in 1971 to develop long-range land use plans for both the public and the private lands within the Blue Line. However, contrary to widespread opinion, the final APA Act was not passed in 1971. After much controversy, revisions to the lengthy law were passed in May 1973, with the very long amendments creating the actual land-use control system. The 1973 law also included the concessions won from Gov. Nelson Rockefeller by Adirondack Assemblyman and Majority Whip Glenn Harris. This means that there was an interim period during which the plans were being finalized and the final legislation developed. Thus the complete APA Act with its elaborate controls over land was actually passed in May 1973, and grandfathering of pre-existing parcels and land uses is dated from August 1, 1973.

The State Land Master Plan was adopted by the Agency and first signed by the Governor in 1972. The following year, in 1973, the Land Use and Development Plan pertaining to the park's private lands was adopted by the legislature.

The APA administers the provisions of the Adirondack Park Agency Act, including the Land Use and Development Plan, and the regulations derived from it. The APA also administers two other state laws within the Blue Line: the New York State Wild, Scenic and Recreational Rivers System Act (1972) and the New York State Freshwater Wetlands Act (1975), which regulates land within the Blue Line more strictly than land outside.

Board of Directors (Updated 2002)

Appointed Agency Members*
Richard H. Lefebvre, Chairman (Resignation announced Nov. 2002.)
James C. Frenette (Appointed Active Chairman Nov. 2002)
William H. Kissel
Frank Mezzano
Deanna Rehm *
Katherine O. Roberts
James T. Townsend
Cecil Wray

*(Until early 2002, one vacancy existed: one in-Park seat, formerly held by Greg Campbell, who resigned 1/15/98.)

Ex-Officio Members
Erin M. Crotty, Commissioner of Environmental Conservation (DEC), replaced John Cahill, 2001
Alexander F. Treadwell, Secretary of State (DOS)
Charles A. Gargano, Commissioner of Economic Development (DED), George M. Kazanjian designee, as of Mar. 2001

Designees
Sandra LeBarron, DEC
Stuart Buchanan, DEC
Richard Hoffman, DOS
Gregory Caito, DEC
Diane Burman, DED

Publications

"Adirondack Park Land Use and Development Map and State Land Map - 1999"
"Adirondack Park Agency - Rules and Regulations - Filed October 25, 1982"
"Adirondack Park Agency Act - As Printed March 31, 1991"
"Summary of Adirondack Park Agency Authority Over Land Use and Development and Subdivision" (fold-out poster 10/95)
Citizen's Guide to Adirondack Forestry
Citizen
's Guide to Adirondack Rivers and Roads
Citizen
's Guide to Community Planning
Citizen
's Guide to Adirondack Lakes
Citizen
's Guide to Adirondack Wetlands
Citizen
's Guide to the Adirondack Forest Preserve
"The Adirondack Park" (pamphlet)

Web Site

The APA web site demonstrates the power of GIS (Geographic Information Systems. According to the Hamilton County News, Mar. 27, 2001: "Executive Director Daniel Fitts asked the agency's computer mapping and web programmer, John Barge, to demonstrate the new 'Explore the Adirondacks' interactive mapping application.
"Barge displayed the web site on-screen and showed that visitors to the site can zoom in and around the park, viewing detailed maps of state and private lands, roads, water and municipal areas."

Comments (rev. 2000)

"The Adirondack Park Agency notoriously exceeds its statutory powers in order to make it impossible for applicants to obtain permits. In 1992, I analyzed the permit and enforcement conditions that the APA was illegally imposing since approximately 1990 and came to the conclusion that the conditions fit 18 categories of restrictions which included key aspects of the controversial Berle/Cuomo 1990 Commission report, The Adirondack Park in The Twenty-first Century and the Governor's program bill largely drafted by they-APA Director Glennon to implement the report. Unfortunately the economic damage to the Adirondacks and the denial of due process to permit applicants by imposing rules beyond APA legal powers has continued under the new Administration." -(LaGrasse, The Property Owner's Experience, 1998, p. 13) (publication order list)

Below is a summary version of this 1998 update I did of the APA's abuses of its power:

Master Plan
The most prominent APA imposition of a master plan recently is that on the Whitney application. One of the two paramount grounds by which Whitney Industries' application to develop a 15,000-acre subdivision was obstructed by the APA in 1997 was that the application was required to include a master plan for their 30,000 acres of property outside the proposed project. The project would have brought important new local economic activity while preserving parcels of adequate acreage for economic timber harvest.

Cumulative Impact and Segmentation
The master plan requirement is, of course, an implementation of the extra-legal concept of cumulative impact and segmentation review. Ironically, the APA violates the SEQRA requirement that a project not be segmented. (See below.)

Blackmail Land Sales
The notorious recent example is the coercion of Whitney Industries to both negotiate with The Nature Conservancy and sell their 15,000 acres to the State in 1997 as a result of applying to the APA and facing a hostile agency and insurmountable application hurdles. An overlooked clause of the APA law is supposed to protect against this abuse. The coerced acquisition of land from applicants as a result of the appearance of the applicant before the APA is specifically prohibited in the APA law.
"Nothing in this article shall be construed to empower the agency to acquire any interest in real property by purchase or condemnation. No right of first refusal or first option to purchase in favor of the agency, the department of environmental conservation or any other state agency shall in any way be created by this article..." (APA law Sec. 819(4))

Excessive requirements for local land-use plans and related matters
In 1997, the APA kept whittling down, and finally rejected a simple map revision request from the Town of Lake George, which had been greatly reduced in scope to fully meet each of the APA's repeated requests, even though the Town had an APA-approved land use plan. The Town had exhausted its hamlet space and wanted a revision to the APA-approved land-use plan to allow suitable expansion of development on adjacent land.
One of the few towns contemplating the attempt to obtain an APA-approved land-use plan in recent years, Tupper Lake dropped the process after the APA began to impose even tighter rules than the APA law requires. The Town of Ticonderoga had the same reaction.
In February 1998, at the controversial Long Lake Planning Board meeting about passing a town zoning plan which hosted three APA representatives and two Department of State representatives, APA Deputy Director Karyn Richards make a number of carefully couched arguments toward making the town plan stricter than APA law requires. At one point, she said that a local zoning plan which was more restrictive than the APA would prevent development that did not meet the character of the community.

"Forever Wild" highway strips
Since the APA power to regulate the aesthetics of single residences along highways was specifically removed as a result of Assemblyman Glen Harris's negotiations with Governor Nelson Rockefeller when the APA law passed in 1973, it was blatantly illegal when the APA began routinely imposing the "forever wild" strips in the early 1990's to shield houses from view in accordance with the Twenty-first Century Commission and Glennon bill recommendations. The APA imposition requiring of "forever wild" highway strips is now routine, and, unless a miracle occurs, our hard-fought efforts to defeat it in the early 'nineties are now part of history.
A recent example is that the APA summoned the free wheeling concept of "critical environmental area" to require that Dave Doner's trailer (Keeseville) be set back with 300 feet of undeveloped area between it and the highway. This APA imposition was particularly egregious because the Doner trailer was by law non-jurisdictional, according to Howard Aubin.

Screening new and/or existing structures from highway view
Single family dwelling permits now often specify screening according to the Adirondack Park Agency Reporter (January 1998, p. 3).

Requiring future APA permission for any wetlands disturbance
The status of such controversial boilerplate conditions of the early 1990's which are stricter than the statutory wetlands protections has never been dealt with by the APA Commission according to the Adirondack Park Agency Reporter (January 1998, p. 1).

Clustering
The unwritten policy known as the "Butler Lake Guidelines," developed "to site buildings back from and invisible from a waterbody, in a 'cluster' design concept, and for much lower density than the maximum allowable in the particular land use classification," persists at the APA and deserves formal reconsideration, according to the Adirondack Park Agency Reporter (January 1998, p. 1).

Hunting and fishing camp jurisdiction
The APA uses wetlands and other stretches of vaguely defined jurisdiction to acquire control over exempt under-500 sq. ft. hunting camps. Rather than adhere to the statutory floor area criteria, it draws ton the existence of electric generators, water and waste water service as critical items, an evaluation of the yearly occupancy duration, or whether family groups use the structure, and counts lofts and porches toward floor area.
"As to Moose Ponds Club, in early 1996 it vanished from the list of pending projects, and its present status in unknown," according to the Adirondack Park Agency Reporter (December 1996, p. 4).

Operation and maintenance requirements
The APA continues to expand illegal Twenty-first Century Commission-style controls of operation and maintenance.
According to Adirondack Echoes (Winter 1997, p. 14), "The Ausable River Campsite wants to relocate some of their camper sites away from the river and out of the flood plain..." The APA "refuses to allow relocation of the sites and also refuses to allow this business to operate more than 120 days out of the year...Even the Dept. of Health agrees and allows campsites to remain open for 180 days..."
In 1997 the owner of the Campisi bed and breakfast agreed not to hire any employees, according to the Adirondack Park Agency Reporter (January 1998, p. 6).
The APA is now routinely imposing hours of operation and noise level restrictions in permits for business applications, according to Susan Allen, the editor and publisher of the Adirondack Park Agency Reporter.

Frivolous aesthetic requirements
The APA has continued to enforce arbitrary aesthetic choices of no objective merit and no environmental value.
When the APA illegally asserted jurisdiction over Dave Doner, it specified a darker shade for the color of his trailer, according to Howard Aubin.
At the present time, the APA staff routinely imposes color restrictions on structures. According to the Adirondack Park Agency Reporter (January 1998, p. 3), the "staff recently stated it now asks for manufacturers' color samples to be submitted for approval."

Encumbrances on the ultimate number of structures
Encumbrances are still accomplished by influencing an applicant to sign a permit as a contract, as in the example Kraig Saunders challenged at the time my lawsuit was brought.
Conrad and Carol Russell submitted an application in 1994 for a bed and breakfast in an APA Low Intensity-zoned area of the Town of Russia. Their intention was that the bed and breakfast, an addition to their house, would be on a parcel of 8.58 acres (far more than the APA statutory minimum and in keeping with the Town zoning), but the APA required that the bed and breakfast be considered as a structure in 180 acres, their then-existing entire parcel. This prevented the Russells from proceeding with the application because they had intended to further subdivide the parcel.

Broad conditions on vegetative cutting
Conrad and Carol Russell's bed and breakfast application in the Town of Russia was before the APA for at least two years beginning in 1994. The Russells were required to submit a vegetative cutting plan for 200 ft. from the Hinkley Reservoir, although the APA did not have the power to require this setback. The Russells considered it to be very undesirable for their project to have the cutting of vegetation so greatly restricted on the reservoir side.
Single family dwelling permits now often specify the "footprint," or "building envelope." Permit conditions prevent such things as paths to shorelines or have requirements to share roads (Adirondack Park Agency Reporter, January 1998, p. 3).

Conditions based on land being of "global significance," or being essential plant or animal "habitat," or necessary to protect "biodiversity," "land bridges," or "whole ecosystems."
The APA obstruction of the Whitney Industries application to subdivide "great camps" on a 15,000-acre portion of their estate was based on these 1990 Twenty-first Century Commission concepts, which are not part of the APA law. The APA's alter ego, the Adirondack Council, raved that the Whitney's application would break up the great "Bob Marshall Wilderness" and disrupt the unique ecosystem of the vast area.
The APA's checklist now involves a panoply of biodiversity considerations, partly because the agency's advanced computer mapping has made such evaluation more efficient. The APA always considers whether a location involves one of the Adirondack Council's "2020 biodiversity sites."

Imposing conditions based on non-existent land-use category "back country"
The APA has grown comfortable in abrogating the statutory minimum lot sizes in its illegally instituted Twenty-first Century "back country" zone comprised of the Rural Use and Resource Management zones. Instead, for large parcels, the APA uses artificial constructs such as "environmental sensitivity," "significance," "uniqueness," "wetlands," and "irreplaceability" to withdraw use of land from the owner and transfer it to government control.

Conditions based generally on Twenty-first Century Commission concepts and resultant mood
In the eight years since I brought the lawsuit about the APA's illegally imposed permit conditions, the thinking put into writing by the Twenty-first Century Commission has become more the norm by environmental regulators. Thus, there is a comfort zone of illegality where the biological survey and master plan requirements could be imposed on the Whitneys and where the Whitneys could somehow end up negotiating with The Nature Conservancy and the DEC for the not-profit/State acquisition of their land.

Major Additional Present-day APA Impositions of Illegal Conditions

Endless information requests
At the March 1998 APA meeting, the Local Government Review Board representative Joseph Rota pointed out that there should be a limitation on Additional Information Requests (AIR's) by the APA for new information. Associate Counsel Barbara Rottier advised the commissioners:
"The statute, and I believe, the regulations, provide no limitation, we have the right to ask for information sufficient to determine the project complete. We try our damnedest to ask for as much as we think we'll need. When you get information you learn things about the project ant it can generate questions you wouldn't have known about before." (Adirondack Park Agency Reporter, March 1998, p. 2)

Staff barring the door to the board of commissioners
The full commission used to have a lead role to develop declaratory rulings, but now the staff prepares these with committee members. The staff also brings cases to the Attorney General for prosecution without hearing by the board of Commissioners. In addition, the everyday lengthy staff process, the tailoring of permit applications by staff (with repetitious oddball permit features that applicants would never have dreamed up) and the endless information and revision requirements in effect stop the ability to complete an APA application and have it approved or denied by the Commissioners.]

Perpetual APA control over completed projects
Discussion over the Spencer dock on Lake Champlain Narrows at the February 1998 APA meeting brought out a common permit condition allowing perpetual site investigations.
"Rota (executive director of APA Local Government Review Board) suggested that a condition regarding site investigation be limited to one year after project completion: 'The whole intent is to make sure it's done correctly, it shouldn't be open-ended.' Jarvis (APA Project Review Officer Richard Jarvis): 'Permits get recorded and may to a subsequent owner. One of the concerns is after it's constructed it remains in compliance, so there can't be a time limit. The specific language is directly out of our current regulations.' Rota: 'Forever?' Jarvis 'Yes.' Rota: 'The APA would be making examinations on every single project that comes through forever, there is no way we could do that.' Jarvis: 'That's staff's current dilemma. As time goes on, we have that much more to keep track of. We don't take a bunch of old permits and run compliance checks, unfortunately. As time goes on, we have that much more to keep track of. We don't take a bunch of old permits and run compliance checks, unfortunately. If a pro looking at a current project sees something different from what he recalled from ten years ago, he may call the applicant. Usually it's the public calling up.'"

Maintaining a mentality of discretionary power
At the APA's 1997 regulatory revision hearing at Colonie, I urged that a particular agency power (of setting a time frame for completion) under discussion be defined beneficially to the applicant. Counsel James Marrin replied that the agency had to retain its "discretionary" power. The mentality to keep discretionary power was apparent also in the proposal to add the requirement for a land survey by a licensed surveyor with the APA keeping the prerogative to beneficially waive the requirement if it chooses to.

Requiring or advising applicants to work with land conservancies
This APA abuse of requiring selected environmental contractors continues. In 1998, Howard Aubin told me that a recent APA letter to an applicant for non-jurisdiction advised the applicant tow work with The Nature Conservancy to develop the project in an environmentally sound manner. At the July 1997 meeting of the Local Government Review Board, the APA spokesman announced that the agency had discontinued its [unofficial] practice of requiring donations to nonprofit organizations as a prerequisite for project approval. This extortion is rumored to continue. No Attorney General prosecutions have ever been pursued.

Using APA authority to push private land into the State Government ownership (update 2002)
Upon the announcement of Chairman Richard Lefebvre's retirement, the press reported that one of the accomplishments under his tenure was the State acquisition of the Whitney parcel and other large tracts of land (Paul Grondahl, "Savoring what he helped protect," Times Union, Albany, N.Y., December 16, 2002, p. B2). However, the APA Act has a clause prohibiting the agency from using its powers to acquire land for state land acquisition.

Imposing shoreline setbacks and spacings stricter than those in APA law
As a high priority, the APA has continued to increase restrictions on shoreline land. George Kapusinsky fought to the Appellate Division because the APA made him double access footage and shoreline footage to force his small subdivision away from the lake, according to Howard Aubin. Other cases where the APA was overzealous in protecting shoreline were the Chaplinski family, Conrad and Carol Russell, Butler Lakes, Whitney, and the Jim Morris projects.

New projects prohibiting use of underwater lands
The APA and DEC agreed to disagree about the jurisdiction over "deep water wetlands," after an exchange of memoranda which are inaccessible to FOIL. The APA uses a "summer low" to determine its jurisdiction over two meter deep water, taking wetlands further out than DEC's "mean high water."
In a far-reaching policy change under the Pataki Administration, underwater utility lines were prohibited from crossing Adirondack lakes.

Excessive detail, micromanaging of project design
The APA's attitude is that it can manage every aspect of a project as though the agency, not the private property owner, has title to the land.
The impositions of management of the applicant's property range from the extreme of the total takeover of all uninvolved land to the finest detail of meddling. During the Whitney project review, the staff suggested that Whitneys find a better spot for their 40 camps on the other 30,000 acres of land they own.
At one APA meeting, a commissioner objected to the permit condition permanently setting the color of the building. The staff denied that the stipulation was by the APA, saying that it was the applicant's proposal. Counsel James Marrin said that they didn't have the right to change a permit, according to Susan Allen.

APA staff designing permit applications
The example cited above is typical. Another was in 1994 that Conrad Russell applied for a project o n 8.58 acres, but the project application notice sent to neighbors was for a project on 180 acres.

Failure to simplify permit process
APA permits have failed to get shorter and less detailed under the Pataki Administration.

Requiring pre-approval by other agencies
Without statutory authority, the APA takes the liberty of deeming applications incomplete if the applicant has not completed applications to other agencies.

Use of enforcement or "wetlands" to acquire jurisdiction for uses which are non-jurisdictional by statute
In an enforcement settlement offer to Chris McGill for his Wilmington property, the APA required that he reapply for a permit for any accessory use, although accessory uses are non-jurisdictional by statute, according to Howard Aubin.

Stretching the APA's authority to acquire jurisdiction over major projects which are exempt.
The APA's declaring jurisdiction over Wal-Mart's Lake Placid proposal because the elevation of some pavement was so low that the entire construction (deemed the "structure") stretched over 40 ft. was a recent example

Neighbor compliance powers
The APA is now adding a permit clause giving neighbors the power of enforcement.

Use of snitches for enforcement, failure to identify accusers
The APA was one of the early agencies to rely on grudges for enforcement.

Current Regulatory Reform Process is too long drawn out and burdensome.

During spring 2000, the APA presented for public comment the formal revised regulations for Part I of Phase I of its regulatory revision process, which began in 1997. The APA is violating SEQRA by segmenting the revision process, making it incomprehensible and hopelessly burdensome for all but a select few to comment.
Areas of revision during this phase include procedures for review of projects, preliminary consultations and conceptual review, permit application requirements generally, renewal of permits, appeals and requests for reconsideration, subdivisions (counting lots), subdivisions (gift, devise or inheritance), subdivisions (preexisting subdivision), cooperative agreements.
Important problems as well as illegalities with the specific proposed revisions have been formally documented in writing by the Blue Line Council, the Property Rights Foundation and others, and these comments are readily available.
In addition, overlapping the Part I, Phase I revisions, the APA has begun discussions on definitions, where important comments from the Blue Line Council are available.

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