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Mitchell, Peter - Ruling, September 13, 2000

Ruling, September 13, 2000

STATE OF NEW YORK : LAKE GEORGE PARK COMMISSION

In the Matter of the Application of Peter Mitchell for Mooring Placement
- Application No. 5226 - 12 - 99

Parcel I.D. No. 48 - 1 - 14, Town of Hague

ALJ RULING ON ISSUES

Introduction

This action is brought by Mr. Peter B. Mitchell to appeal the decision by the Lake George Park Commission ("LGPC") to deny his application for a variance to place a mooring 134 feet from the mean high-water mark in front of his property on Lake George.

Background

Mr. Mitchell is the owner of real property ("Mitchell Property") located at 32 Oneida Drive, on the western shore of Lake George in the Town of Hague, Warren County, New York. This property is located on Oneida Bay and is referred to by its tax number, 48-1-14. There are two houses on the Mitchell Property; one serves as Mr. Mitchell's year round residence, and the second is a rental property. The property enjoys approximately 175 feet of shore line and one dock. Mr. Mitchell also has one permitted, existing mooring (Registration Number 22491), located approximately 102 feet from the mean high-water mark.

Mr. Mitchell is a self-described "sailing enthusiast" who enjoys sailing on Lake George year round. When the Lake is clear of ice he uses his nineteen foot 'Flying Scot' sailboat which he moors to his existing mooring. This sailboat has a removable centerboard, allowing it to be safely moored in relatively shallow water. In the winter, when the lake is covered with ice, Mr. Mitchell enjoys ice sailing.

In an effort to increase his sailing enjoyment, Mr. Mitchell seeks the second mooring to moor a 'Star Class' sailboat. As Mr. Mitchell describes it, this boat is longer (approximately 23 feet in length) than his 'Flying Scot' and has a keel. According to Mr. Mitchell, these 'Star Class' sailboats are not uncommon on Lake George. The keel on this larger sailboat extends approximately four (4) feet below the waterline. Contact by the keel with the lake bottom or other submerged obstacles would cause considerable damage to the boat.

In order to prevent such damage, Mr. Mitchell estimates that the sailboat should not be moored in a manner that will allow the vessel to ever be in water less than seven (7) feet in depth. This will prevent damage caused by water level fluctuations and storm waves.

By taking into account the characteristics of the lake bottom in front of his property, the need for a minimum of seven feet of water beneath his vessel, the length of mooring chain necessary to safely attach the vessel to the mooring and the size of the 'Star Class' sailboat, Mr. Mitchell estimates that the mooring must be placed approximately one hundred and thirty four (134) feet from the mean high-water mark. With the thirty four(34) feet of chain that Mr. Mitchell calculates he needs and the twenty three (23) foot length of the boat, Mr. Mitchell estimates that the full swing of the vessel will extend approximately one hundred and ninety one (191) feet from the mean high-water mark. None of Mr. Mitchell's calculations or analyses have been challenged by the LGPC.

History of the Application for a Variance

To secure the permission of LGPC to moor a 'Star Class' sailboat in front of his property, Mr. Mitchell submitted an application for the replacement of his existing dock and for permission to place a second mooring in Lake George. This application was submitted on June 3, 1999 and was subsequently revised on September 6, 1999 to include a variance request form for the second mooring. Presently, the application for the dock replacement has been suspended and is not at issue here. The variance application was necessary because the second mooring Mr. Mitchell seeks to place in the Lake would not conform to the requirements in regulations promulgated by the LGPC.

Specifically, Mr. Mitchell needs a variance from two regulatory provisions. First, because he seeks to place his second mooring 134 feet from the mean high water mark, he needs a variance from 6 NYCRR Part 646-1.1(c)(2)(iii) which states:

(iii) No dock, wharf or mooring shall be constructed or placed so as to extend offshore more than 100 feet from the mean high water mark.

Second, because the new mooring that Mr. Mitchell seeks to install would allow the full swing of a 'Star Class' sailboat to extend approximately 191 feet from the mean high-water mark, and because this full swing would extend into the setback area on the northern side of his property, Mr. Mitchell needs a variance from 6 NYCRR Part 646-1.1(c)(12), which reads:

(12) Moorings shall be placed so that vessels moored to them, at the full swing of their mooring or anchor line, will be no closer than 20 feet to the projection of the property lines extended into the lake along the axis of the property lines as they intersect the lake, or a line extended at right angle to the mean high-water mark, whichever results in the greater setback. Moorings shall not be placed so that the full swing of the vessel extends more than 100 feet offshore from the mean high-water mark.

On May 23, 2000, the LGPC by unanimous vote denied Mr. Mitchell's request for a variance and instructed staff to offer Mr. Mitchell an opportunity to request a public hearing. In its resolution, the LGPC cited as the grounds for denying Mr. Mitchell's variance application his failure to demonstrate that strict conformance with the mooring placement regulations would cause an unnecessary hardship due to unique and peculiar circumstances which impose substantial financial, technical and safety burdens.

Mr. Mitchell then informed the LGPC of his desire for a public hearing to review the variance denial, pursuant to 6 NYCRR Part 645-5.6(c). On June 23, 2000 the LGPC contacted the New York State Department of Environmental Conservation's Office of Hearings and Mediation Services seeking the assignment of a hearing officer to conduct the public hearing. Shortly thereafter, I was assigned to the matter.

Issues Conference

An issues conference in this matter was held August 16, 2000, at 9:30 a.m. at the Lake George Town Center. Mr. Mitchell appeared pro se and the LGPC was represented by their counsel, Martin D. Auffredou, Esq. Also attending from LGPC were Michael P. White, Executive Director of the LGPC and Margarethe Gallagher, Deputy Permit Administrator of the LGPC. Also attending was Administrative Law Judge Robert P. O'Connor from DEC's Office of Hearings and Mediation Services. No members of the public attended.

The purpose of the pre-hearing issues conference was to narrow the issues raised by the parties concerning the permit application and to define and limit the scope of issues remaining as subjects for the adjudicatory hearing (6 NYCRR Part 645-6.6).

Mr. Mitchell's Position

At the Issues Conference, Mr. Mitchell submitted a letter/brief dated August 16, 2000 setting forth the issues he is suggesting for adjudication. He expounded upon this letter/brief at the Issues Conference.

Mr. Mitchell requests adjudication of two issues. First that the LGPC erred in denying his application for a variance and that he is entitled to the variance because compliance with the regulations would create substantial technological, financial and safety burdens and hardships upon himself and upon the general public.

Second, Mr. Mitchell asserts that the LGPC regulations, themselves, are not accomplishing the goals of minimizing shoreline congestion, but are significantly increasing degradation of the littoral zone, and unreasonably increasing recreational risks.

LGPC Position

In its reply letter/brief dated August 30, 2000, LGPC argues that there is one issue that should be adjudicated, namely did the LGPC err in denying the variance Mr. Mitchell sought, or, to put it another way, can Mr. Mitchell demonstrate that he is entitled to a variance pursuant to 6 NYCRR Part 645-8.

Discussion

The first issue raised by Mr. Mitchell is the same one identified by the LGPC: was Mr. Mitchell's variance application improperly denied? I concur with the parties that this is the appropriate issue for adjudication at the public hearing scheduled for September 22, 2000.

The second issue raised by Mr. Mitchell, namely the question of the rationality of the regulations enacted by the LGPC is not an issue which can be considered in this hearing and is in fact an impermissible collateral attack on the duly promulgated regulations. This is not to say that Mr. Mitchell's arguments regarding shoreline congestion, degradation of the littoral zone and recreational risks are without merit; they may in fact be valid criticisms of the existing regulations but should be addressed through the rulemaking process, not an adjudicatory proceeding. Accordingly, these issues are well outside the scope of review granted to me.

For example, Mr. Mitchell's arguments that the regulations favor the use of motorboats on Lake George and discourage permittees from mooring sail boats may be accurate. There is no dispute that motorized vessels can be maneuvered more easily in shallow, inshore areas than can larger, fixed-keel sailboats. Presumably, when the regulations were under development, released for public comment and ultimately adopted in 1988, these concerns were raised. The regulatory requirement that moorings be no more than 100 feet from the mean high water mark seems to have been adopted in an effort to keep moored vessels closer to the shore in order that they do not create a safety issue by causing a hazard to navigation. This has had the effect of making it difficult to moor larger sailboats in front of some properties in some areas of the lake shore.

The fact that Mr. Mitchell disputes the rationality of this regulatory provision does not make this dispute adjudicable in this forum. An administrative law judge does not have the authority to examine such an issue in the context of a variance denial. The appropriate forum would be in State Supreme Court, provided the statute of limitations had not run on such a cause. And even had Mr. Mitchell brought such an action in a timely manner, he would have been required to show that the adoption of the regulations were "arbitrary and capricious". Given that the regulations were adopted to regulate the placement of moorings and keep them closer to shore (presumably to reduce interference to navigation), it seems likely that a court would rule that the LGPC had a rational basis for adopting these regulations. Similarly, any other of Mr. Mitchell's challenges to the rationality of the LGPC's regulations are not adjudicable in this matter.

The appropriate forum to challenge the rationality of these regulations is before the State Legislature or the LGPC, the two bodies with the power to adjust the existing regulations. The State Legislature could direct the LGPC to amend its regulations to be more accommodating to sailboats. Alternatively, the LGPC could amend its regulations to incorporate measures easing the constraints on mooring sailboats.

In summary, the issue of whether the regulations are rational is not a matter for adjudication. It is outside the scope of the authority of the administrative law judge.

Conclusion

I provide this conclusion in an effort to help the parties understand the standard that applies for the granting of a variance and thus the standard that I will use to evaluate the arguments and evidence presented at the adjudicatory hearing.

As stated, the issue to be adjudicated is: was the variance application improperly denied? The pertinent section here is 6 NYCRR 645-8.3, which sets forth the standards for granting a variance and reads as follows.

  1. No variance shall be granted under this Subpart unless the applicant shall establish by substantial and credible evidence unnecessary hardship.
  2. In order to establish unnecessary hardship, an applicant must demonstrate:
    1. unique and peculiar conditions to the applicant's particular situation which impose a substantial technological, financial or safety burden upon the applicant or the public;
    2. that because of such uniqueness, there is no reasonable possibility that the applicant's property or, if no property is involved, the continuation of the applicant's business, enterprise, use or activity will bring a reasonable return following conformity with the regulations of the commission;
    3. that the proposed activity will have no adverse impact on the public health, safety or welfare, the environment or the resources of the park; and
    4. that the granting of a variance will not alter the essential character of the area in which the proposed use of activity is located, and will not lead to congestion in the park.

Mr. Mitchell must be prepared to meet all four parts of this test for a variance. First, he must prove that "unique and peculiar conditions to the applicant's particular situation" exist. This means that, compared to other land owners along the shore of Lake George, his physical situation is in someway unique and peculiar. The fact that he owns, or desires to own, a certain kind of vessel that cannot be moored without a variance by nearly every landowner is not a strong argument. Further, if this uniqueness and peculiarity can be demonstrated, Mr. Mitchell will have to prove that these conditions "impose a substantial technological, financial or safety burden upon the applicant or the public".

Next Mr. Mitchell will have to demonstrate that because of "such uniqueness, there is no reasonable possibility that the applicant's property ... will bring a reasonable return following conformity with the regulations of the commission". The mere fact that his property would be worth more if the variance was granted than it would be if the variance were denied is insufficient. In an analogous situation, there are many court decisions in zoning disputes which stand for the proposition that an applicant is not entitled to a use of his property that maximizes his return if such use is prohibited by a valid zoning ordinance. All that is required is that the applicant receive a reasonable return. The fact that Mr. Mitchell has two viable residences on his property, along with a dock and an approved mooring will enter into an analysis of reasonable return.

Once Mr. Mitchell has proven the first two parts of the test Mr. Mitchell will have to prove "that the proposed activity will have no adverse impact on the public health, safety or welfare, the environment or the resources of the park." And finally, "that the granting of a variance will not alter the essential character of the area in which the proposed use of activity is located, and will not lead to congestion in the park." Only if Mr. Mitchell can provide "substantial, credible evidence" for each part of this four part test will he meet the conditions set forth in the regulations for a variance.

Appeals

This ruling may be appealed in writing to the Lake George Park Commission within seven (7) days of the date below pursuant to 6 NYCRR Part 645-6.6(d). Should such an appeal be taken, the parties shall ensure that transmittal of all papers is made to me and all parties at the same time and in the same manner as transmittal is made to the Commission. No submissions by telecopier will be accepted. Appeals should address this ruling, rather than merely restating a party's contentions.

/s/
P. Nicholas Garlick
Administrative Law Judge

Albany, New York
September 13, 2000

TO:Mr. Peter B. Mitchell
P.O. Box 2535
Silver Bay, NY 12874

Martin D. Affredou, Esq.
Barlett, Pontiff, Stewart & Rhodes
Attorneys at Law
P.O. Box 2168
One Washington Street
Glens Falls, NY 12801-2168

Mr. Michael P. White
Executive Director
Lake George Park Commission
75 Fort George Road
P.O. Box 749
Lake George NY 12845-0749

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