Tuesday, September 22, 2009

Commentary: Anti-Enviros Look For Legal Loopholes

This month three anti-environmental activists clashed with state agencies charged with protecting the environment in the Adirondack Park. In what appears to be a growing trend, all three men are using legal technicalities to attempt to enforce their own personal wills.

Earlier this month, Salim B. “Sandy” Lewis won the right to have three additional single-family houses exempted from Adirondack Park zoning rules because they were built on a farm. Lewis had refused to seek an APA permit because he claimed that the structures were for agricultural use, as farmworker housing. The APA Act says all structures on a farm count as a single principle building lot, and are exempt from density requirements and APA permits. After losing in a lower court, State Attorney General Andrew Cuomo’s Office appealed on behalf of the APA, but Appellate Division justices agreed with Lewis’s claim that the houses were farm buildings, equivalent say, to a barn, a greenhouse, or a chicken coop.
On Monday, Plattsburgh-area businessman Arthur Spiegel lost another battle in his personal war to build his Lake Placid house bigger and more visibly than his neighbors’. In 2004 Spiegel had begun building his vacation home, taller then allowed, on too steep a slope, and by taking out too many trees according to the Adirondack Park Agency (APA). The APA demanded that Spiegel meet the same rules we’re all supposed to live by, but Spiegel went to court instead to argue he was being unfairly targeted. U.S. District Judge William Sessions agreed that the understaffed Adirondack Park Agency doesn’t do as well as it should in enforcing egregious zoning violations, but he also found that Spiegel had to take his medicine—No, the judge said, the APA’s decision wasn’t malicious or political, the agency was simply enforcing the law.

Yesterday, Lake Placid Snowmobile Club President James McCulley asked Attorney General Andrew M. Cuomo to launch an investigation into the Department of Environmental Conservation (DEC). McCulley drove his truck down the Jackrabbit Trail in May of 2005 and was ticketed. A DEC administrative judge later found that the trail, part of the former Old Mountain Road between North Elba and Keene, had never been closed properly back in 1974. In May, DEC Commissioner Pete Grannis was forced into a position of effectively reopening Old Mountain Road between North Elba and Keene. Now the status of the trail is in limbo—sort of. I sense that McCulley knows pretty well that his win on a technicality won’t stand, so now he’s launching another attack, claiming that the DEC is colluding with the Adirondack Mountain Club, the Adirondack Council, and Association for the Protection of the Adirondacks to violate the state “ex parte” law. That law says that employees of a state agency cannot “communicate, directly or indirectly” on legal issues unless all parties are included. His proof? E-mails between the DEC and environmentalists he obtained through the Freedom of Information Law. That’s right: McCulley used a law designed to keep citizens informed on what state agencies are doing to claim that information was illegally given to citizens.

One of the funnier moments of all this looking for legal loopholes comes from a recent legal motion. “DEC has developed a close alliance with various environmental groups and, in reality,” McCulley’s attorney Matthew Norfolk argued, “has morphed into a state-sponsored environmental advocacy organization funded by the taxpayers of the state of New York,”

No kidding! The DEC was established on EARTH DAY in 1970 and it’s mission is simple:

“To conserve, improve and protect New York’s natural resources and environment and to prevent, abate and control water, land and air pollution, in order to enhance the health, safety and welfare of the people of the state and their overall economic and social well-being.”

That sounds like a “state-sponsored environmental advocacy organization” to me, although I’m sure some of our neighbors would disagree, and find a loophole to “prove” it.

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John Warren

John Warren has been exploring the woods and waters of the Adirondacks for almost 50 years. After a career as a print journalist and documentary television producer he founded Adirondack Almanack in 2005 and co-founded the geolocation services company Adirondack Atlas in 2015.

John remains active in traditional media. His Adirondack Outdoors Conditions Report can be heard Friday mornings across the region on the stations of North Country Public Radio and on 93.3 / 102.1 The Mix. Since 2008, John has been a media specialist on the staff of the New York State Writers Institute.

John is also a professional researcher and historian with a M.A. in Public History. He edits The New York History Blog and is the author of two books of regional history. As a Grant Consultant for the William G. Pomeroy Foundation, he has reviewed hundreds of historic roadside marker grant applications from around New York State for historical accuracy.

17 Responses

  1. Dave/Towns and Trails says:

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