Property Rights Foundation of America®

"Worth Commenting," reprinted from New York Property Rights Clearinghouse (Vol. 10 No. 1, Winter 2006)

Fear and Trembling

By Carol W. LaGrasse

Lying low, or simply hiding, is a facet of being a property owner today. A person cannot avoid hearing now and then about people who put up buildings out of sight of government, hoping that they will not be discovered. The local building inspector might be reasonable, but there are also the Department of Environmental Conservation (DEC), Adirondack Park Agency (APA), and other powerful regional agencies.

However, when they hope to build a structure, the vast majority of people apply to their town or county for a building permit, and, where necessary, for a zoning permit. It is then that many of them indeed wish they could go into hiding. Suddenly, a DEC wetland maven is upon the hapless property owner. And these enforcers of environmental law are not to be taken care of. They do not want a chunk of affordable, traceless cash slipped into the top drawer of the desk. No, they want blood. It is your entire retirement investment that they want forfeited, a property that the environmental bureaucrat deems to contain an inviolate wetland, as well as its 100 ft. wide buffer zone, inconveniently located with respect to a site for a building and septic disposal system. Your property, zoned for, say, three houses, is now viable for at most one house, or perhaps for no house at all. Or your beautiful, dry, valuable lakefront property, which you purchased and cherished for your retirement home, cannot be built on. Or maybe the wetland bureaucrat orders that your only buildable location is a few hundred feet from the water's edge and you have to let the forest grow back along the shore, walling your house away from the lake. Or maybe you intended to practice agriculture in the wetland buffer zone, after judging its location from the officially promulgated wetland maps, but the wetland bureaucrat expands the extent of the wetland beyond the mapped area and prohibits you from using your property for agriculture.

This same DEC scenario is repeated ad infinitum with enforcement cases. A neighbor is unhappy with another neighbor, sometimes just because the targeted person will be using the property that the nearby resident enjoyed seeing vacant. The one neighbor reports the other neighbor to the DEC for, say, cutting trees or building a driveway. It is the same story as with the permit application scenario, except that added to the distress about potentially losing viable use of the property, the property owner now faces the DEC wetland enforcer's threat of fines.

The less widely known agency that profoundly affects the use of private property is the APA, which presides like a black cloud over property owners in much of northeastern New York. The APA has countless legal tools for jurisdiction over property owners, depending on the building use classification, the APA land-use category, density rules, and a host of other factors that trigger jurisdiction, including a much stricter system of control of property that contains wetland than elsewhere in the state. In the twelve-county Adirondack region, neighbors specialize in squealing on each other to the APA to settle grudges of every nature. In fact, the APA does nearly all of its enforcement actions as a result of people reporting anonymously on each other.

Once people receive a visitation from the APA or DEC, life changes. How to get the permit, even if undesirable compromises are dictated? How to get the enforcement agent to back off or, at least, to cut a workable deal so that the fine is bearable and the project can continue with restrictions that are not too expensive or limiting? Or, if the property is said to be "environmentally significant," some property owners get to the ultimate moral low point. How to influence the State or one of the land trusts working in concert with the State to buy up the property without leaving the property owner with too big a financial loss?

This is where the fear factor has set in.

And, this is also usually where a property owner contacts the Property Rights Foundation of America. The requests for assistance are numerous: A request for information about any of the many different aspects of the wetlands law, a request for an explanation of the nature of the APA and information about any of the countless inscrutable aspects of its authority, a request for a good lawyer who can negotiate successfully at a reasonable cost, or a request for a free lawyer.

The problem is that the property owner seldom responds affirmatively to the counter-request that he work with representatives in the State Senate and Assembly. The explanation is clear. The property owner is afraid that the enforcer from the APA or DEC will treat him more harshly if he brings attention to the situation or appears to be standing up to the enforcer.

Judging by experiences of a number of individuals with environmental agencies throughout the country, the approach of lying low and negotiating at any cost is not without reason. It is not just the hope of cutting some kind of deal that argues for the property owner to try to work quietly without calling in a potentially powerful backer; it is also the need to avoid the physiologically destructive stress of matching wits, debating, conflicting with a figure who wields immense power over the property owner.

And what happens when a property owner calls on a member of the Legislature, the very body that is the source of the laws that bestow the power of application review and enforcement for these arcane environmental matters? With exceptions for massive outpourings of citizen action, the occasions that come across the desk of the PRFA, where the property owner contacts the member of the Legislature, rarely wind up with a solution. It is much easier to obtain a grant to benefit the community than it is to obtain classical redress of grievances when a citizen contacts a member of the Legislature.

A good example is where the DEC closed down a number of the town center general stores in the North Country by placing liens on the property of the current owner for overpriced cleanup costs for leakage of a fuel tank during the tenure of an earlier owner. The stores remain closed, the owners ruined financially by DEC. Meanwhile, the Legislature makes available brownfield grants to local municipalities, but no help is extended to the innocent owners of the little general stores. And the ironies grow. In its latest so-called Open Space Conservation Plan, the DEC sanctimoniously announced a program for communities to make "green open space" in each town center where a gas station once stood. Now, wouldn't you be fearful of a government agency that is this malevolent?

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© 2006 Carol W. LaGrasse
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