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McHugh, Keith (Lens Lake) - Ruling, February 11, 2002

Ruling, February 11, 2002

NEW YORK STATE ADIRONDACK PARK AGENCY

In the Matter of the Application of Keith McHugh for a permit to construct a single-family dwelling on Lens Lake, Town of Stony Creek, County of Warren

RULING ON ISSUES AND PARTY STATUS

APA Application No. 2000-158

SUMMARY

This ruling addresses the requests for party status and the issues that have been proposed for adjudication in connection with the Adirondack Park Agency's ("APA" or the "Agency") request for a public hearing on the application of Keith McHugh (the "Applicant")(1) for a permit to construct a single-family dwelling on the shores of Lens Lake, in the Town of Stony Creek, Warren County.

These proceedings are held pursuant to Title 9 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("9 NYCRR"), Part 580. Pursuant to Section 580.5 of the regulations, the Applicant and any landowners whose property is within 500 feet of the project site are parties to the proceeding. In this case, those landowners include William Hutchens, who owns land at the southern end of the Lake adjacent to the Applicant's parcel, and John Studer, for the Green Haven Fish and Game Club. Pursuant to Section 580.6, "the agency staff, while not a party to the hearing, shall have the right to participate fully in the hearing and shall act as an advocate for a full and complete record upon which an informed decision can be made."

Finally, any persons permitted to intervene under 9 NYCRR Section 580.7 are granted party status. The proposed intervenors include The Adirondack Council, the Residents' Committee to Protect the Adirondacks ("RCPA"), and Ms. Carol LaGrasse. All requests for party status were timely filed. For the reasons set forth herein, all three of the proposed intervenors are granted party status in this proceeding.

BACKGROUND

The Applicant has applied for a permit to construct a single-family dwelling on a 7.89 acre pre-existing vacant parcel located on the north side of Lens Lake Road and the southerly shoreline of Lens Lake (the "Lake"), in the Town of Stony Creek, Warren County. The site is bounded on the east and west by private property, northwesterly by Lens Lake and lands of the State of New York (the Wilcox Lake Wild Forest), and to the south by Lens Lake Road. Lens Lake Road runs parallel to Lens Lake. Lens Lake is an approximately 102 acre lake which is a part of the Wilcox Lake Wild Forest.

The project is located in an area designated as a Resource Management land use area on the Adirondack Park Land Use and Development Plan Map, and is a Class B regional project pursuant to Section 810(2)(d)(1) of the Adirondack Park Agency Act (the "Act").

PROCEEDINGS

Legislative Public Hearing

The APA determined that a hearing in this matter was necessary, and issued a Notice of Public Hearing on August 28, 2001. The Notice was published in the Environmental Notice Bulletin, an electronic publication of the New York State Department of Environmental Conservation ("DEC" or the "Department"). The Notice was also published in the September 2, 2001 edition of the Glens Falls Post Star. Pursuant to Section 580.4(b) of 9 NYCRR, notice of the hearing was also mailed to the Applicant, the aforementioned landowners within 500 feet of the project site, and certain government officials.

The hearing was originally scheduled for Wednesday, September 12, 2001, but due to the events that took place in New York City, Pennsylvania, and Washington on September 11, 2001, it was necessary to reschedule the proceedings. The public hearing commenced on September 26, 2001 at 2:00 p.m. in the Stony Creek Town Hall, Warren County. The hearing opened with a brief overview of the application provided by James Morgan, Esq., of the law firm of Galvin & Morgan, counsel for the Applicant. Madeline Sheila Galvin, of the same firm, also appeared on behalf of the Applicant. Mr. Morgan described the Applicant's discussions with the APA concerning setback requirements, sewage treatment, and visibility. With respect to visual issues, Mr. Morgan discussed the balloon simulations performed by the Applicant, and advised that the Applicant was prepared to undertake another simulation, if necessary, in leaf-off conditions.

During the public hearing, members of the public who wished to speak were called upon to make their oral statements on the record. Twelve individuals gave statements, eight of whom opposed the application, raised certain concerns with respect to the project, or recommended that the Agency approve the third alternative site, as that alternative was set forth in Agency Staff's August 1, 2000 letter to the Executive Director of the APA. Those opposed spoke about the effect of the project on the wilderness character of Lens Lake, noting that there has been no development along the shoreline. Some speakers voiced concerns about the project's visibility, and raised objections to some clearing of the site that allegedly had already taken place.

In addition, some of those opposed expressed fears that if the project were allowed to proceed, development pressure would result, and ultimately alter the existing character of the Lake. The speakers stated that the public's enjoyment of the Lake should receive significant consideration in the Agency's final decision, and also spoke about the potential effects on wildlife, including the habitat of waterfowl and other animals that use the Lake. Several of those who commented read into the record letters in opposition from other individuals, and then submitted those letters to the hearing officer.

Four of the speakers supported the project, or raised more general concerns about the restrictions imposed upon private landowners, who were unable to proceed with projects such as this one on their property. John Studer, of the Green Haven Fish and Game Club, stated that the project would be an asset, and encouraged the Applicant's investment in the community. Mr. Studer also said that he had visited the area where vegetation had been removed, and that the clearing was almost invisible from the Lake. Another supporter, Arthur Johnson, spoke with approval of the possibility for an increased tax base. Mr. Johnson also pointed out that the present dam replaced a stone and wood structure with a concrete and steel dam painted red that is visible from the Lake, and from his residence. According to Mr. Johnson, a large area ninety feet back from the shoreline was cleared by the Department of Environmental Conservation in order to construct the dam, and that it was inaccurate for opponents of the project to assert that man-made structures were not visible from the Lake.

The three proposed intervenors also made presentations. Evelyn Greene spoke on behalf of the RCPA, taking the position that this project would set a precedent as to how shoreline areas are developed in Resource Management areas. In addition, the RCPA argued that issues with respect to the project's visibility, its effect on the open space character of the area, and the water quality of the Lake should be adjudicated. According to the RCPA, the wilderness, open space character of the Lake should not be compromised by development, the structure should be invisible from the lake's surface area and from the forest preserve land, and the project should not have any negative impact on the Lake's water quality.

The Adirondack Council's representative, Joseph Moore, identified the issues of concern to that organization, including visual impacts, the character of Lens Lake, and impacts to water quality, wetlands, bogs, and unique bog vegetation and wildlife. Mr. Moore referred to the Council's 1988 publication, 2020 Vision, Volume I, Biological Diversity: Saving All the Pieces, in which Lens Lake was identified as an area needing special protection. Mr. Moore contended that the clear cutting that had occurred at the project site would have adverse effects on the Lake's water quality from runoff and sedimentation. As for visual impacts, Mr. Moore voiced concerns with respect to the accuracy and reliability of the photographs offered to depict the balloon simulations.

Carol LaGrasse, an individual who filed a petition for party status, offered comments focusing on private property rights, and the issue of visual impacts. Ms. LaGrasse quoted from a document entitled "Report of the Commission On The Adirondacks In the Twenty-First Century," which she indicated had been prepared in 1990 by the Commission on the Adirondacks in the 21st Century. Ms. LaGrasse noted that the recommendations in that report concerning setbacks and visibility of structures had not been adopted in a bill proposed in the 1990-91 State legislative session. Ms. LaGrasse asserted that the APA does not have the power to regulate the visual impact of a single-family dwelling from a town highway. Moreover, Ms. LaGrasse contended that the APA would exceed its authority if it were to impose conditions more stringent than those set forth in the statute to regulate shoreline setbacks and removal of vegetation, and argued that issues of visibility should not be adjudicated. Ms. LaGrasse also addressed the issue of shoreline development, contending that the shoreline of Lens Lake is not pristine, and that the character of that shoreline was altered due to the flooding of developed land.

The Applicant's counsel, Ms. Galvin, made a closing presentation, observing that Mr. McHugh does not view the process as adversarial, and emphasizing that the acts of the initial applicant/developer (Michael Black/Cold River Properties) with respect to the property should not be attributed to Mr. McHugh, the subsequent purchaser. Ms. Galvin stated that Mr. McHugh is proposing a single-family house in a location which would be fully screened from the Lake. With respect to the visual simulations, Ms. Galvin requested that, at the time the adjudicatory hearing is convened, arrangements be made for a site visit, and a possible second balloon fly. During a brief question and answer period, counsel for the Applicant clarified that the proposed boat storage structure would not be situated on the Lake. After the question and answer period concluded, the legislative public hearing was closed.

Issues Conference

Immediately following the public hearing, the issues conference began. The Applicant, Agency staff, and all those seeking party status were in attendance. As noted above, all petitions for party status were timely filed. Section 580.7 of 9 NYCRR (entitled "Intervention"), allows any person to seek party status "to present evidence, cross-examine witnesses, and otherwise participate in the public hearing." Section 580.7 sets forth the requirements for an acceptable petition for party status, including, among other things, a demonstration "that the petitioner has a material social, economic, or environmental interest which is likely to be affected by the agency decision concerning the project." 9 NYCRR § 580.7(a)(5).

The Notice of Public Hearing for this application states that "[t]he potential major issues at the public hearing are expected to be the potential change in character of the undeveloped shoreline of Lens Lake, visibility of a new structure from Lens Lake and Spruce Mountain, impacts to wetlands, bogs, unique bog vegetation and wildlife, the water quality of Lens Lake, and the open space character of Lens Lake and the Wilcox Lake Wild Forest area."

Positions of the Parties

As noted above, Mr. Hutchens is a party as of right by virtue of his status as a landowner within 500 feet of the border of the property that is the subject of the proceeding, as is Mr. Studer for the Green Haven Fish and Game Club. See 9 NYCRR § 580.5. The remaining petitioners for party status include the RCPA, The Adirondack Council, and Ms. Carol LaGrasse.

The RCPA proposed three principal issues for adjudication, including visual issues, open space considerations, and water quality impacts. The Adirondack Council took the position that the proposal has the potential to cause significant adverse environmental impacts, including visual impacts, impacts on the wetland and bog complex around Lens Lake, and a change in character to the open space shoreline and water quality of Lens Lake. In addition, the Adirondack Council asserted that the application failed to examine all viable alternatives.

Carol LaGrasse's petition raised arguments similar to those she addressed in her statement during the legislative public hearing. Those arguments are summarized above, and will not be reiterated here. By letter dated October 24, 2001, Agency staff provided an additional statement concerning the discussions had at the pre-hearing conference, particularly the arguments advanced by Carol LaGrasse. Citing to statutory authority and judicial precedent, Agency staff asserted that the Agency has authority, and is in fact required, to consider a proposed project's impacts on aesthetics in connection with its review of a Class B Regional project in a town, such as Stony Creek, which has not adopted an Agency-approved local land use program.

On November 9, 2001, Carol LaGrasse filed additional comments in support of her position, but those comments did not address the issue to be briefed. While Ms. LaGrasse conceded that the Agency has the authority to regulate aesthetics, she drew a distinction between aesthetics and visibility. Ms. LaGrasse's comments and the Agency Staff's position are a part of the record, but need not be considered further in connection with the Applicant's motion, which is discussed below.

There was no opposition to the petitions of the RCPA or Carol W. LaGrasse for party status. The Applicant objected to The Adirondack Council's petition, contending that the filing was inadequate, because it did not comply with Section 580.7(a) of the Agency's regulations. Specifically, the Applicant maintained that the petition did not include the requisite documentation pursuant to 9 NYCRR Section 580.7(a)(1) with respect to The Adirondack Council's corporate structure. The Adirondack Council has subsequently cured that omission by submitting additional documentation, including a copy of its by-laws, certificate of incorporation, and verification of tax-exempt status. Agency Staff supported The Adirondack Council's petition, as did Mr. Hutchens.

The APA Regulations provide that the hearing officer shall grant a proposed intervenor's petition for party status if the petitioner can demonstrate "a material social, economic or environmental interest which is likely to be affected by the Agency decision concerning the project," or if a grant of party status is "necessary to or would further the purpose of the hearing." 9 NYCRR §§ 580(a)(5) and (d). The Adirondack Council's petition asserts that it has participated in other APA hearings, and has expertise relevant to the matters to be addressed at the hearing on this project, including visual issues. The Applicant's objections to the petition are not sufficient to overcome that showing, particularly in light of the Agency's concerns that a full and complete record be developed.

As all three petitions meet the standards of 9 NYCRR Section 580.7, and, with the exception of the Applicant's objection to participation of The Adirondack Council, all three petitions are unopposed, the petitions for party status are granted.

Motion Practice

1. Briefing

At the issues conference, argument was heard concerning the authority of the hearing officer to limit the issues to be adjudicated during the hearing. The participants agreed to brief this question.

Following receipt of the transcript, briefs were submitted. The Applicant filed a petition for declaratory ruling (the "Petition"), and in the alternative, filed a motion in limine (the "Motion"). The Petition requested that the Executive Director of the APA issue a declaratory ruling that no further public hearing be required with respect to the application, and that the Director of Regulatory Programs deem the application approved, and issue a permit. By letter dated January 9, 2002, the Executive Director declined to issue a declaratory ruling because, in the Agency's view, the Petition was in fact a request for reconsideration of the Agency's determination to proceed to hearing, and thus was untimely pursuant to 9 NYCRR Section 572.22(c). Moreover, the Agency concluded that the Applicant's request in the Petition that the permit be issued for the proposed project was inappropriate, inasmuch as the Director of Regulatory Programs does not have the authority to issue a permit for a project which the Agency has directed to a public hearing. See 9 NYCRR Section 572.11(a). In light of this determination by the Agency, this ruling will not address the participants' arguments with respect to the Petition.

The Applicant's Motion argued that the hearing officer has the authority to limit the issues to be considered at the adjudicatory hearing. In addition, the Applicant raised several constitutional issues, including a facial challenge to the Agency's statute and regulations which, the Applicant argued, abridged the Applicant's property rights. According to the Applicant, the regulatory scheme is overbroad and, in this instance, amounts to a taking of private property without just compensation. The Applicant also provided a brief letter response to the submissions by Agency Staff and counsel for Mr. Hutchens.

The Applicant's Motion also raised a number of constitutional arguments, including assertions that the Agency's procedures amount to a taking of property without just compensation, but acknowledges that such arguments are not the province of the hearing officer. "Constitutional questions in general, and in particular claims of a taking of property without just compensation, are not determinable in administrative proceedings, but must be asserted in a proceeding seeking judicial review of a permit denial or imposition of a permit condition." Matter of Weaver, 1989 WL 133968 (Decision, August 3, 1989), citing Haines v. Flacke, 104 A.D.2d 26, 33 ( 2d Dept. 1984). These arguments are part of the record of this proceeding, and will not be considered further here.

Counsel for William D. Hutchens opposed the Applicant's motion, arguing that the APA regulations do not authorize a hearing officer to limit the issues to be considered at the hearing, and that issues can only be limited by the Agency itself, or pursuant to stipulation among the parties.

Agency staff took the position that the hearing officer is authorized to limit the issues to be considered at the hearing, pointing out that there is no provision in the regulations that states that only the Agency can limit issues, or that all issues not limited by the Agency must be adjudicated. According to Agency staff, "[t]he full Agency acts as a screening device to reject a hearing when unwarranted, and, if there is a hearing, also to limit the issues if it desires." Staff's November 9, 2001 letter brief, at p. 2. Staff took the position that the absence of such limitation is not a determination that all issues should be adjudicated; rather, that "the standard hearing process should control." Id.

The RCPA and the Adirondack Council did not file briefs in connection with the Applicant's motion. As noted above, the submissions of Carol LaGrasse, and Agency staff's response to those submissions, did not address the pending motion.

2. Discussion

Section 580.3 of the APA regulations provides, in pertinent part, that "[t]he agency may determine to limit the issues to be considered at the hearing, in which case it will advise the project sponsor of its determination and the notice of hearing will specify the issues to be considered." Section 580.4 states that the notice of public hearing shall include the major issues likely to be considered at the hearing, unless the agency has limited the issues to be considered pursuant to Section 580.3. The public Notice for this application states, in pertinent part:

The Adirondack Park Agency Act requires that, among other considerations, new land use and development in Resource Management, such as the proposed project, be compatible with the character description, and purposes, policies and objectives of the land use area, and also that the proposed project not have an undue adverse impact on the resources of the Park. The potential major issues at the public hearing are expected to be the potential change in character of the undeveloped shoreline of Lens Lake, visibility of a new structure from Lens Lake and Spruce Mountain, impacts to wetlands, bogs, unique bog vegetation and wildlife, the water quality of Lens Lake, and the open space character of Lens Lake and the Wilcox Lake Wild Forest area.

In this case, the Agency has not invoked the provisions of 9 NYCRR Section 580.3 to limit the issues to be considered at the hearing.

The regulations do not expressly authorize the hearing officer to limit the issues to be considered at the hearing. Section 580.14(a)(4)(i) enumerates the powers of the hearing officer, including the power to "direct the parties to appear and confer at any time prior to or during the course of the hearing to consider the simplification of issues by consent of the parties." This provision suggests that, if the Agency does not limit the issues, such limitation could only arise through consent of the parties.

Nevertheless, as Agency staff points out, determinations as to party status must necessarily involve some consideration of the limitations on any issues to be adjudicated, and the regulations provide further that the hearing officer is to "do all acts and take all measures necessary for . . . the efficient conduct of the hearing." 9 NYCRR § 580.14(a)(4)(xi). Section 580.9 of 9 NYCRR provides that the hearing officer "may direct the parties to appear for a conference to simplify, define, limit, or resolve issues," and requires the hearing officer to summarize for the record the "the action taken at the conference and any admissions, stipulations or agreements which were made by the parties." While there is no explicit grant of authority in the regulations to the hearing officer to limit issues, the regulatory scheme favors of an interpretation of those regulations that would allow the hearing officer to do so, while remaining mindful of the obligation to develop a full and complete record for the Agency's review.

Executive Law Section 809(3)(d) provides that the determination to proceed to a public hearing on an application shall be based on whether the agency's evaluation or comments of the review board, local officials or the public on a project raise substantive and significant issues relating to any findings or determinations the agency is required to make . . . including the reasonable likelihood that the project will be disapproved or can be approved only with major modifications because the project as proposed may not meet statutory or regulatory criteria or standards.

In this case, the agency has determined that a public hearing is required, and that the issues likely to be considered at such a hearing include the potential change in character of the undeveloped shoreline of Lens Lake, visibility of a new structure from Lens Lake and Spruce Mountain, impacts to wetlands, bogs, unique bog vegetation and wildlife, the water quality of Lens Lake, and the open space character of Lens Lake and the Wilcox Lake Wild Forest area.

With respect to the proposed issues for adjudication, no objection was made to the petitions of Carol LaGrasse or the RCPA. Both the RCPA and Ms. LaGrasse raised issues with respect to the project's visibility, as well as the effect of the project on the open space character of Lens Lake. Moreover, The Adirondack Council, William Hutchens, and a number of those who commented on the project voiced concerns with respect to these issues. Consequently, visual impacts and issues relating to the open space character of Lens Lake and the Wilcox Lake Wild Forest Area will be adjudicated.

The RCPA reserved its right to call witnesses on the issue of impacts to water quality, noting in its petition that it administers the largest water quality monitoring project in the Park, and has concerns with respect to water quality in connection with the proposed project. The RCPA indicated that, depending upon witnesses called by other participants, it might call Adirondack aquatic specialists as expert witnesses on this issue. The Adirondack Council's petition stated that Lens Lake's water quality would be affected, and expressed concern that the project, "if undertaken as proposed, would have an undue adverse impact on the wetland and unique bog complex around Lens Lake." Finally, the petition contended that the application failed to examine all viable alternatives. A number of speakers at the public hearing also raised the issue of alternative sites, as did Mr. Hutchens, the adjoining landowner.

At the issues conference, the hearing officer questioned The Adirondack Council's representative concerning the offer of proof to be made as to impacts to wetlands and bogs, as well as water quality. Transcript, at pp. 42-43. The Adirondack Council indicated that its concerns with respect to these issues related to the examination of alternatives. While Agency staff has stated its position that the project as proposed would not have an adverse effect on water quality, wetlands, or bog ecosystems, an examination of alternative sites must necessarily include consideration of those potential impacts in connection with those sites. This is particularly true because Lens Lake has been identified by The Adirondack Council in their 1988 publication, 2020 Vision, Volume I, Biological Diversity: Saving All the Pieces as biologically significant resource. According to that document, the Lake is a quaking bog comprised of unusual vegetation, including orchids, that are generally found in boreal bogs and fens. Under the circumstances, consideration of alternatives will allow for testimony concerning impacts to the Lake's water quality, wetlands, and bogs.

Accordingly, visual issues, as well as the project alternatives' impacts on the Lake's water quality, wetlands, and bogs, will be adjudicated at the hearing. As noted above, The Adirondack Council, the RCPA, and Carol LaGrasse are granted party status.

Pursuant to 9 NYCRR Section 580.7(f)(1), "any decision of . . . the hearing officer to grant or deny intervention may, within five days of receipt, be appealed to the agency, which will decide the appeal at its next regular meeting. Other parties may submit briefs in support of or in opposition to the decision." Pursuant to Section 580.7(f)(2), "[n]otice of such appeal and a copy of all materials submitted in support thereof shall be given the executive director or hearing officer and all parties to the hearing." Allowing time for mailing, any appeals of this ruling must be received by the Agency by 5:00 p.m. on February 22, 2002. The parties shall ensure that transmittal of all papers is made to the hearing officer and all others on the service list at the same time and in the same manner those papers are transmitted to the agency. No submissions by telecopier will be allowed or accepted.

In the event that no appeals are filed, the parties are directed to advise the hearing officer by March 1, 2002 of their availability for a conference call to discuss further proceedings in this matter.

____________/s/____________
Maria E. Villa
Administrative Law Judge

Albany, New York
February 11, 2002

To: Attached Service List

Daniel T. Fitts
Executive Director
Adirondack Park Agency
P.O. Box 99
Route 86
Ray Brook, New York 12977

1. Mr. McHugh purchased the parcel from the original applicant, Michael Black/Cold River Properties.

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