Nine counties, two towns poised to sue APA

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January 6, 2009

<a href="mailto:kdedam@pressrepublican.com">By KIM SMITH DEDAM</a> The Press Republican Tue Jan 06, 2009, 04:08 PM EST

ELIZABETHTOWN — A multi-county petition challenging new Adirondack shoreline rules was wholly dismissed by the Adirondack Park Agency.

A coalition — expanded now to include nine Adirondack counties and two towns — is formulating Article 78 legal action against the state land-use agency.

A conference call between county attorneys at 2 p.m. today pressed the matter of a joint lawsuit, according to Warren County Attorney Paul Dusek.

Essex, Franklin, Clinton, Warren, Saratoga, Fulton, Hamilton, Herkimer and Washington counties, plus the towns of Newcomb and Indian Lake, have put $3,000 each into a joint legal fund to challenge the new shoreline regulation — its efficacy, timeliness and the rationale behind it.

Towns of Bleecker in Fulton Co.; Edinburgh in Saratoga Co.; and Black Brook in Clinton Co. have asked to join in the legal coalition, with several more towns expressing interest from Fulton County, said Fred Monroe, executive director of the Adirondack Park Local Government Review Board.

Only three counties with parcels of land in the Adirondacks are not part of the joint legal action as of Tuesday: Oneida, St. Lawrence and Lewis.

The coalition hired Glens Falls Attorney Dennis Phillips, who said in a brief phone interview today that his law firm does not allow any comment on ongoing litigation.

APA RESPONSE

Dusek said he received a written response by mail from APA this morning.

The eight-page letter defends the APA Act and the 12-year, multi-phase process undertaken to rewrite several rules, including the shoreline revision.

“The process has been entirely public and thorough,” the letter said.

APA then said the counties’ petition didn’t arrive in time for review before the Dec. 12 meeting.

“The petition is untimely since it is too late for the Agency Board to respond or take any action prior to the date of enactment (which was Dec. 31, 2008).”

APA cancelled the regular January meeting, saying they had “no agenda items requiring action.”

In a three-page response sent Monday, the counties said the petition was served Dec. 12, 2008, constituting advance notice of 27 days prior to the regularly scheduled January APA meeting.

“Instead, the agency sent the dismissal letter received by us,” the counties said. “On Dec. 30, 2008, and then, two days later, abnormally cancelled the regularly scheduled agency meeting set for Jan. 8 through 9. …The petition served on Dec. 12, 2008, was a very important ‘agenda item’ for the January meeting.”

In dismissing the petition, APA claims no section of the APA Act “provides for reconsideration after the rule-making action is final.”

Reconsideration is only done in project review, APA said, “which this (county petition) is not.”

The agency said they have not addressed the legal arguments presented by the counties, “and your petition for reconsideration or an administrative declaratory ruling will not be acted upon.”

NON-CONFORMING

The controversial shoreline regulation was adopted Nov. 14, 2008.

It eliminated a grandfather clause granting rights for private Adirondack property owners to build additions — without APA variance — on “non-conforming,” waterfront property in place before 1973.

Non-conforming is APA legal language for camps and houses built inside waterfront zoning setbacks before the APA Act was written.

Additions less than 250 square feet are exempted from APA review.

ADVERSE IMPACT

Many waterfront-property owners, town and county officials believe the regulation adversely impacts real-property values — thence town and county tax rolls — and real estate and construction markets in the park.

Environmental groups have come out in support of the new shoreline rule, since it also formally requires wastewater-treatment system upgrades and certified engineering design with all new shorefront construction, a move they say safeguards water quality in the Adirondacks.

Dusek said the counties want the regulation to revert back to its original form.

“We felt they don’t have the authority to do what they did,” he said.

E-mail Kim Smith Dedam at:

kdedam@pressrepublican.com