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By KIM SMITH DEDAM
RAY BROOK — State Supreme Court has rejected a lawsuit brought by counties and towns against the Adirondack Park Agency over shoreline regulations.
The lawsuit, filed last spring by local governments, including Essex, Franklin and Clinton counties, claimed that a new APA regulation over waterfront residences built in the Adirondack Park before 1973 was made improperly and overstepped the agency's legislative jurisdiction.
A clause built into the APA rules 30 years ago allowed existing shoreline property to be "grandfathered in" and partially exempt from stringent Adirondack construction setbacks of 50 to 150 feet from the water.
Many older camps, including historic former Great Camps, sit right beside the water's edge.
Property owners could add on to their residences as long as expansion was planned to the back, away from the water.
The new regulation requires APA variance for any additions to waterfront property and formal notice from shoreline homeowners planning even "minor expansion."
NO GROUNDS
Seven Adirondack counties and numerous towns pooled resources and filed the lawsuit, which also claimed the APA had not done proper economic-impact review to evaluate how the tightened rule would affect lucrative property-tax income from waterfront land.
Petitioners maintained the APA was "trumping the intent of legislature" and had overstepped regulatory boundary.
But Supreme Court Justice Robert J. Muller rejected much of the counties' argument.
"What has occurred here is that the administrative agency charged with interpreting and enforcing a statute has reconsidered a regulation it adopted years ago," Muller wrote.
"The revised regulation, now adopted and in force, clearly takes a more restrictive view. The Court finds that none of the grounds alleged by petitioners invalidate the amendment."
The Supreme Court also upheld APA jurisdiction over any subdivision of waterfront wetlands.
In a statement issued Tuesday, APA officials said they were pleased the court found in their favor on shoreline development and wetlands subdivision.
"The agency believes regulatory revisions were important to protect shorelines and overall water quality. The court also ruled that the agency clearly acted in accordance with the State Administrative Procedures Act."
RULING AGAINST APA
Muller did rule, however, that "natural subdivision" created by existing roads anywhere in the Adirondack Park cannot be removed from language in the regulation.
Fred Monroe, chairman of the Local Government Review Board, said this part of the decision provided an important win for local landowners.
"The more important thing is the court upheld the natural-subdivision rule. There are many people who own property on both sides of a road, and this creates separate lots you can sell without applying for subdivision approval from APA. The court decision means this rule is still alive."
The judge also said the APA overstepped its regulatory boundary by redefining hunting and fishing cabins, in effect rewriting restrictions "not contemplated by the (State) Legislature."
Muller ordered the new APA definition stricken from the rule, which went into effect Dec. 31, 2008.
In the Town of Newcomb — one of the towns that sued — Supervisor George Canon said he was relieved to see the judge recognize the APA overstepped boundaries.
"That's a win, as far as I'm concerned," Canon said Monday night. "And it's an important issue here. They tried to define hunting and fishing cabin use for only specific purposes, but my question is: What, are you going to have APA fishing and hunting cabin police? I'm glad the judge saw the fallacy in that."
The APA said that without the detailed definition, new camp construction "will require a case-by-case determination" to see if it is a "seasonal dwelling, requiring a principal-building right," or "a hunting and fishing cabin."
Canon said the decision divided findings, some in the APA's favor, some in favor of local government.
"The ones we won I would say are the smaller end of the scale. I would rather have the decision allowing expansion on shoreline property, rather than the hunting and fishing cabins."
APPEAL UNCERTAIN
"I guess we'll (petitioners) have to get together to decide if an appeal is worth it or not," Canon said.
Monroe also did not know whether the local governments would appeal.
"The attorneys are still reviewing it."
Neither Canon nor Monroe have noted any measurable adverse economic impact yet from the new regulation, which has been in effect for about a year.
"I've heard from some contractors that it's impacted their business," Monroe said.
"We haven't seen any impact yet on our assessed value. But I really believe that will happen. People are not going to buy an 800-square-foot cabin on the waterfront for a lot of money when they can't do what they want with it."
But APA Chairman Curt Stiles said the new regulation will actually improve the value of existing waterfront property by limiting new development.
APA officials said their staff has seen a "minimal disruption of proposals and plans" since the new rules went into effect.
INPUT LACKING
Asked what the park agency might have done better in creating the new regulation, Monroe said they could have vetted the change through local government.
"They could have done what it says in APA Act, which is consult with Local Government Review Board; consultation to me means some kind of meaningful dialogue. It did happen, but very, very late in the process — in September, before they adopted this last November.
"APA is charged with the responsibility of fostering a continued planning process, which recognizes matters of local concern. And that's what we should be doing."
E-mail Kim Smith Dedam at: kdedam@pressrepublican.com
