The Governor, the Adirondack Park Agency and Tim Jones
The Glens Falls Post-Star has just completed a three-part series examining the epic clash between the Adirondack Park Agency and a camp owner named Tim Jones, whose cabin sits on the Raquette River near Tupper Lake.
The case — which dragged on for nearly two decades — became a symbol for both sides of the environment and property rights debate.
Mr. Jones’ supporters are convinced that he is a sort of freedom fighter, battling against the evil bureuacracy that is the APA.
Mr. Jones’ critics insist that he is the sort of scofflaw who — if left to their own devices — will steadily chip away at the environmental protections that shape the Adirondacks.
Park Agency staff — with the backing of the Attorney General’s office — have long argued that he built the cabin illegally, without a required permit.
They stated publicly and privately that a modicum of cooperation might have produced a quick resolution to the case.
Mr. Jones insisted that state officials were exceeding their jurisdiction.
But the significance of this peculiar case goes well beyond our perennial APA-vs-property-rights feud. In this case, the real concern is what happens when politics and the rule of law collide.
Whatever you think of Jones’ personal story and political agenda, he was clearly operating in a legal gray zone.
As the Post-Star reports, “a county court justice held him in contempt and banned him from using his own property.”
His case was scheduled to go to court again in January and there was a very real possibility that an independent judge would have ordered his cabin torn down.
That’s when Governor David Paterson’s office intervened and forced the APA to settle the matter. As Will Doolittle’s reporting makes clear, this was a remarkable thing to do:
John Collins, a former APA chairman and commissioner, called intervention by the governor’s office in a pending enforcement case unprecedented.
Keith McKeever, the APA’s longtime spokesman, said it had never happened before.
The problem here isn’t only that the Governor’s office appears to have set a troubling precedent, meddling in an on-going legal proceeding.
(The Post-Star’s sources suggest that Paterson’s staff was hoping to avoid bad publicity.)
No, the real problem is that the APA and the Attorney General’s offices were apparently doing their job.
They were enforcing laws passed by the legislature and regulations developed through a formal process by the Park Agency and the Department of Environmental Conservation.
Perhaps Mr. Paterson or his staff feel that some of those laws or regulations need to be changed?
Or did they become convinced that state employees performed their jobs irresponsibly, over-zealously, or even illegally?
We don’t know. This all happened behind closed doors.
If the Governor did have serious concerns, the proper solution wasn’t simply to meddle in this one case. That leaves everyone else in the Park vulnerable, with no permanent fix.
The better answer here would have been for the Governor to make clear his concerns with the APA and the Attorney General’s office. He should then have proposed any reforms or changes that he thought suitable.
Without that kind of public process, this case threatens to discredit a legal and regulatory system that has existed in the Park for forty years — a process which allows alleged violators due process in the courts.
Property rights activists insist that this system is unfair, with landowners like Mr. Jones regularly outgunned by state attorneys.
But we have seen recently that the state of New York doesn’t always win the legal fights it takes on in the Adirondacks.
In the case of Essex farmer Sandy Lewis, Lake Placid snowmobile activist Jim McCulley, and others, judges have ruled in favor of local residents. Those were important, precedent-setting cases.
And Perhaps Mr. Jones would have prevailed as well, setting another precedent. We will never know. It was a political fix, not the rule of law, that prevailed here.
In the end, this outcome may well provide a degree of personal justice for one landowner. But the case raises troubling new questions for everyone else living inside the Blue Line.
I’ve seen a lot of one sided reporting about APA issues… but that article in the Post-Star might just take the prize. No effort, what-so-ever, seems to be made to include or address (let alone understand) the opposite point of view. Rants and name calling are even “reported” matter-of-factly.
I’ve had to recalibrate my view and trust of journalists since moving to the Adirondacks, but I have to admit I am still surprised at what some folks get away with writing in these papers.
Sorry Brian, you make an interesting and important point in your post here… didn’t mean to go of course. Was hard not to get side tracked after clicking on and reading that link.
Hi Dave –
Some folks may want to discuss the journalistic merits of Will Doolittle’s series. His work often provokes debate of that sort.
The best place for that conversation is at the Post-Star’s website, where he and his editors can participate.
–Brian, NCPR
Related to this story is an article in this months Adirondack Life Magazine (June 2010 edition) about the ongoing issue of property rites along Raquette Lake. Talk about a quagmire that seems to have no end in site. The article supports Brian’s assertion that the state of New York doesn’t always win its legal battles. It also is an example of a politician getting involved in legal proceedings, albeit in an appropriate way in my opinion, in order to settle a dispute decades long and affecting numerous residents within the Blue line. I strongly suggest reading it as it’s quite interesting.
In the above case, however, Patterson seems to have shot himself in the foot yet again. Given the enormity of the issues he’s faced with currently, why on earth would he put his nose in this battle? Especially since he’s not running for re-election. Bad publicity? Too late for that, Governor.
Dave,
I’m not sure what other stories you are referring to. Chris Knight did a story for the Enterprise that had three sources — Tim Jones, his lawyer Sheila Galvin and APA spokesman Keith McKeever. McKeever has no direct involvement with the case, although he did provide me with hundreds of pages of APA legal filings, which I read. I haven’t counted but I bet my three stories had more than a dozen on-the-record sources, including four former APA commissioners, three of whom were chairmen of the APA board — Bob Flacke, Jim Frenette and John Collins. Current commissioners and staffers such as Barb Rottier will not comment, per APA policy.
allows alleged violators due process in the courts.”
Perhaps the correct conclusion here is that the process is totally ineffective and clearly something that we simply cannot afford. For this simple case to have festered for decades is evidence that zoning by a state agency is perhaps ineffective and there is a better way to mange zoning in the Adirondacks. Local courts have had structures torn down in a matter of months, and when the was disputed in court the town quickly won the appeal. What went wrong in this particular case is perhaps debatable. But the fact that the process is broken is really indisputable. So we debate the issue, we throw more money at the APA and at the AG’s office dealing with Mickey mouse issues, in the end have nothing to show for it. Sooner or later people will wake up.
Isn’t it in the states best interest for the governor to intervene if a state agency is tying up the courts with legal minutia? Not to mention the unnecessary costs involved? I understand that perhaps you feel that any breech of APA authority is potentially devastating, I just don’t see the problem. Perhaps the APA will “fight” this? They may feel their authority trumps the executive branch? I would not be surprised.
Brian, I think that you might have mentioned once that you were investigating the “after the sale” deed restrictions imposed by APA permits at one time? I am still looking forward to that story. If you think that the APA has it’s hands full with legal issues involving a small shack on the Raquette, just wait till someone tries to set a precedent by challenging those restrictions. Some kind of “conservation easement” in exchange for a permit? It seems unprecedented in zoning, but I assume they know what they are doing?
Does the term “Reasonable Man” mean anything to anyone?
Without Paterson’s intervention, this would have dragged on in perpetuity.
The guy owned the land and had permits approved prior to APA. He built a cabin so he could be closer to nature, which is why people live in and visit the Adirondacks. Sounds simple enough to me.
Paterson’s common sense approach is freaking out the land acquisition crowd.
Leave the cabin guy alone and let him enjoy his life.
A case doesn’t go on for over 18 years unless there is some question to be settled. It also does not seem reasonable for the Governor, any Governor, to get involved in a case unless there are issues that compel him to do so. It is easy for people, out of ignorance, to suggest that a man who makes it to the office of the Governor would just make stupid decisions but it is much more reasonable to conclude that just maybe there was reason for the Governor to make those decisions and that they were the right decisions.
Will, I appreciate your response. However, balanced journalism – at least the kind I am used to – goes beyond the number of sources you collect and how many legal papers you read behind the scenes. It also has to do with what actually hits the presses and whether you accurately present the important points of view. Yes, you did source former APA board members, but they all happened to agree with one side of the story. And true, current APA staff will not comment on issues, but “quotes” and “comments” are not the only way you can present opposing positions.
Your article does not even mention, let alone help the reader try to understand, the other point of view in this story.
You even include a personal rant where someone throws around a flurry of insults (zealots, villains, and liars) and you talk about Mr. Jones’ marriages… details that almost border on tabloidesque… yet you completely ignore anything that would shed light on the other side.
I just don’t get it. Maybe one of your previous two articles on the matter explored in more depth the full story? I sure hope so.
Brian, your blog may not be a good place to raise these concerns (well, this post anyway), but going to the Post Star’s home turf and engaging in discussion there strikes me as a poor forum as well. This is the sort of thing that is ripe for a neutral site to step back and explore with a critical eye – because it deals with such a tangled web of important issues… and because responsible journalism is the crucial link in helping the community understand it all.
Dave,
I do think the stories raise issues that could be discussed, rather than talking about exactly how I reported or wrote the stories. Perhaps that is what Brian was getting at — he raised one issue, and I think the stories on Tim Jones raise other important issues (more important ones, in my opinion, than the one Brian chose to single out). Going into detail about my reporting gets tedious and, at some point, the stories have to speak for themselves. My point with mentioning the documents and the many sources is that I did an extensive amount of reporting for these three stories. Without that, a good story is impossible. It is important, I think, that I sought out sources from all sides of the issue — if I chose to interview only Tim Jones’ friends and supporters, that would be bad reporting. And I do think Bob Flacke’s criticisms of the APA and Adirondack Council, for example, are more powerful and worth thinking about and worth quoting because he is a supporter of the APA (and a former chairman of its board), and of environmental regulations in general. He speaks not from ideology, but experience.
Howard –
There may have been a serious problem with the way the APA, the Attorney General and the courts handled Tim Jones’ case.
If the Governor’s office thinks so, then he or his staff should make his concerns clear.
Why? So that similar problems (or misbehavior or misreadings of the regulations, or whatever) don’t occur in the future.
This case also raises another thorny question:
If a Governor can intervene in a legal enforcement case — one that the courts and the Attorney General’s office are already deeply involved in — how might future governors intervene?
What if a future Governor wades in on the other side, demanding more severe enforcement or action against a property owner?
Bottom line? This represents a remarkable intervention by a politician in a legal proceeding.
The Post-Star’s reporting suggests that it may actually be unprecedented.
I think that’s something that should raise concerns on all sides of the Adirondack debate.
–Brian, NCPR
Brian-
Lisa M. Burianek of the Office of the Attorney General was at the meeting with Tim Jones and myself, along with others. Lisa Burianek was representing the APA. That is the job of the AG’s office, to act as the attorney for the APA. There was nothing improper being done. The AG’s office was there to try to settle this 18 year old case and it was made very clear that they wanted to settle it. Tim has also wanted to settle it for many years. It just took the Governor’s Office to settle the case, to get the parties together, to get the job done.
Thank you, Howard. There was nothing illegal or improper about the intervention of the governor’s office in this case. It was unprecedented. That’s interesting. It probably speaks to a lack of perspective that people close to this case developed. But if Tim Jones’ case had not been settled, serious questions would still have been raised by the case — questions of proportionality and perspective. I think it’s worth asking — and I would think that Brian would think it’s worth asking — whether it is reasonable, appropriate, fair, economical and just (or any combination of those), for a state agency to devote 18 years to prosecuting a man for a “violation” that the agency itself determines will not result in “a substantial loss” to the wetland it has said it is trying to protect.
Brian-
The governor’s office is responsible for the APA and it’s employees and if they saw anything improper they have the responsibility to stop it. To suggest that the Governor should do nothing is to ask the Governor to ignore his job.
Will,
If you sought out sources from all sides of the issue… why is only one side represented in your article? If you read hundreds of pages of legal documents… why are none of the details that might help us understand the APA’s actions mentioned?
That is the crux of the problem with your journalism here. You wrote a story about X vs Y and only portrayed points of view that supported X.
Or am I just missing it? Feel free to point out where in this recent article you believe you made an attempt to explore and present a point of view other than that which agrees with Mr. Jones.
Back to Brian’s point about Governor intervention. I can’t help but think back to the reported politicking done by the governor’s office on Peter Hornbeck’s behalf. I seem to recall state senators commenting on the pressure they were receiving and how rare that was for an appointment like this. Different situations, but I have to wonder if these stories are exceptions, or if the Governor is flexing muscles like this in other ways as well.
Mr. Aubin has an excellent point regarding the participation from the AG’s office in the settlement discussion. As Brian has indicated before the AG is the legal arm for the APA. Settlement agreements are often done with little or no communication with regulatory departments. They will always want to stay in the fight no matter the cost. Legal counsel often helps people come to their senses. If that means a settlement agreement that “property rights” folks do not agree with in the future are the result so be it, nothing new there. The AG’s office signs off on lots of deals that environmental groups cheer and property right advocates think are terrible on a pretty regular basis these days. Welcome to the club.
Dave,
I sought to learn the truth of this story by talking to everyone I could who was part of it, and then to tell the truth of this story. I did not seek to do the “this person says this, while this person says this” brand of mealy-mouthed, lazy and dull journalism. I sought to do something more compelling and, I think, better, which is, through hard and thorough reporting, learn the truth, then tell it.
Howard – You misunderstand me. I’m actually suggesting that the Governor should do more.
If he thinks something improper occurred then his office does have a responsibility to stop it; but they also have a responsibility to explain to the rest of us a) why they felt it necessary to intervene and b) what they plan to do to make sure this kind of situation doesn’t occur again.
Will — a question: You’ve researched this, I haven’t.
Can you give us a little more context for how you can say with confidence that it wasn’t improper (or illegal) for the Governor to intervene in a legal proceeding of this type?
(This isn’t a gotcha question — this is simply an aspect of this case that I don’t understand.)
Thanks,
Brian NCPR
I don’t think anyone is going to get anywhere trying to understand the motivations of Gov Patterson right now.
Someone convinced his people this was a good thing to do, how that happened is anyone’s guess. It would seem he has much much more important things to worry about than one stupid cabin, but maybe not.
As Paul said:
“So we debate the issue, we throw more money at the APA and at the AG’s office dealing with Mickey mouse issues, in the end have nothing to show for it.”
Exactly; what exactly is the APA doing? Is this the main thing; this sort of trivial junk. It seems as if they are lost in the minutia and losing the big picture of protecting “The last great Eastern Wilderness” .
Little Cabins, 18 year court cases, cell phone towers, come on.
I think Howard explained it perfectly. The A-G’s office in general, and Lisa Burianek in particular, had been involved in prosecuting this case for many years. From their point of view, this meeting was a settlement talk, facilitated by the governor’s office, which, at the behest of a constituent, took an interest in the case, as the governor, as the final authority over state agencies, has every right to do.
The larger issues, as put forward by Mervel, are, I think, more important — the questions of proportionality and perspective. Was the APA’s response in this case proportional? Was it a good use of state resources? Is this a good way to protect the wilderness?
Thanks, Will. And I agree that some of the other questions raised here are important.
1. Is APA focusing on the right issues, or are they being distracted by ‘Mickey Mouse’ stuff?
The question here really is about cumulative impact.
Does it matter if one person builds a rock wall along a lakeshore? (To cite one of your earlier stories.) Maybe not. How about three people? Ten?
Same goes for a cabin built without a permit. Does it matter if one person does it? How about thirty people?
And if these small violations don’t matter, why do we have laws and regulations prohibiting them?
2. Why are these cases taking so long to resolve?
At the time of its creation, the APA’s enforcement powers were deliberately weakened.
This was viewed at the time as a victory for Agency opponents, who had no interest in empowering a heavy-handed bureaucracy.
As a result, the APA can’t write tickets, can’t inspect properties without an owner’s permission, can’t bring a case to court with the Attorney General’s office, etc.
As the Post-Star’s various reports suggest, this arrangement sometimes results in extraordinarily protracted cases — some dragging on for years
That’s ridiculous and I think it’s fair to say that it imposes an unfair burden on some landowners.
But the far more common outcome is that enforcement cases are simply dropped or shelved without resolution — literally thousands of them over the 11 years that I’ve been reporting on the APA.
–Brian, NCPR
This case lasted for 18 years for many reasons. I believe that the current APA administration under Curt Stiles is correcting one of those reasons with the new appointment of John Burth to enforcement. IF I am correct, based on what Curt Ctiles said at the last meeting John’s responsibilities include acting as an administrator of the proceedings for enforcement hearings. Currently APA attorneys act in that capacity.
One of the legal arguments that was made and ignored by the courts was that by Barbara Rottier acting in the duel capacity as both prosecutor and administrator of the hearing was a conflict of interest. Think about it, it is like a DA also acting as the court clerk.
I personally hope that this is what this new hire was about. I personally believe that had that been the case 18 years ago this case would not have gone on this long. With such an appointment procedures and guideline are developed that can help prevent, as Jim Frenette stated so well in Will’s article, a case from getting out of control and getting personal.
I realize that there are people that think that Governor Paterson overstepped, the question I have is that if it was their hero Andrew Cuomo would that also be overstepping? But, it was also the office of Andrew Cuomo that was involved.
I couldn’t care less what Will or Brian think about the APA or the governor.
This is the trouble with much of what is called journalism today. You see opinion all over the place in what is supposed to be news.
Beware of adjectives and adverbs in reporting. They almost always are used to slant the news.
We need more Sgt. Joe Fridays in the news rooms. Just the facts, Mam, and I will form my own opinion.
Mervel has it right: They ( APA staff) are lost in the minutia and losing the big picture . It is the notorious nit-picking and overly fastidious interpretation and bureaucratic process that is one of the things that so infuriates those who must deal with the APA. Staff needs to get a new attitude.
Will,
So your goal was not to tell the full story and allow the reader to determine the truth… but was instead to determine the truth on your own and then present that truth as you see it? Fair enough. I think you have certainly accomplished that. And knowing that now will at least let me take these articles for what they are.
As a point of opinion though, I’m not sure I would consider presenting the complexities of a conflict and letting the reader understand and feel both sides of an issue, “dull” – but that may just be me.
Regardless, this just magnifies the point I was trying to make in my second comment here, which is that the Adirondacks are left without much in the way of full journalistic reporting when it comes to some of these important issues. Well, at least as far as I can tell. If there is someone else who is doing as in depth a series as yours, but is telling it from the other side, or preferably, is telling the whole story with more than one point of view… it is hard for me to find. This isn’t necessarily your fault, of course. But for such important local issues, there seems to be a fairly big gap in the information the community receives via journalism.
One point that is overlooked here is what the APA got out of this settlement. Personally, I think they got a lot. The question for the agency is not about a cabin but about “jurisdiction”. Mr. Jones got a permit, and the APA got to exert jurisdiction over his property. So Brian, to answer one of your questions regarding cumulous effect, since Mr. Jones had to (eventually) get a permit anyone else that comes after him also must get a permit from the perspective of the APA. That now includes land that may have earlier been considered non-jurisdictional like Mr. Jones’s. This case strengthens the APA position that they have clear jurisdiction over wetlands. Remind me WHO makes the determination of what is or is not a wetland in the Adirondack park? Oh, right it’s the APA. Everybody still think Mr. Jones won here?
Will —
“I did not seek to do the ‘this person says this, while this person says this’ brand of mealy-mouthed, lazy and dull journalism.”
Are you taking potshots at Chris Knight’s journalism? He is, after all, one of the more respected journalists in upstate New York and is regularly hailed as one of the more fair and unbiased reporters inside the Blue Line.
A little clarification would be nice.
Thanks,
Chris Morris
One other strange aspect of this case is that it has gotten so much attention, or at least why it is viewed as “troubling” by some. It appears to be a standard procedure for the APA to resolve enforcement cases with an “after the fact” permit (sometimes along with a nominal civil penalty). Just look at their data. Brian, you are critical of the executive office for pushing this, but it looks like what they do most of the time anyway? Or more often nothing is done. It depends who your neighbor is or if for some reason you get on the “guinea pig” list. Do you seriously think that with this case we will start to see little cabins popping up all over the place? Black Flies are the best zoning agents we have in the Adirondacks!
Nobody wins or loses in these APA cases. The best that you can hope for is some form of justice. Hopefully, out of this case changes will and are being made that will effect change that will create more justice and fairness. This is not a game! These cases are real peoples’ lives.
Curt Stiles came out in support of a suggestion that I made in bringing these cases to local justice court instead of going right to Supreme Court. It would speed things up, create a greater sense of fairness and reduce the costs for both parties. The APA just hired a new position in enforcement with the potential to also make the process more fair, to create more “justice” at the administrative level. As much as I dislike this agency, I welcome these needed changes.
When the agency was first formed cases were brought under criminal law. It was the courts that ruled that unconstitutional and the legislature changed it to civil law but failed to put jurisdiction in the proper court.
If it wasn’t for cases like this one, needed changes would never be made. This case also just happens to also represent a class struggle and that has one side of this debate upset because they are being stopped. Like it or not the local population has a right to exist and is entitled to the same rights as all citizens of this state and this country. Who knows why the Governor got involved, I’d like to believe that he recognized a class struggle.
Brian-
Your article seems to suggest that this case being resolved in the way that it was is somehow bad or wrong. I see it differently. Just think, the villian that Robert Flacke talks about has the chance to show that they are capable of a good faith effort to improve the process and prove people like Robert Flacke and myself wrong.
At the same time reporters like yourself have the chance to report on such changes and keep the debate honest, if you are up to the challenge.
Dave,
You’re twisting what I say, perhaps because you have never reported a story and don’t know how the process works. Or perhaps I’m describing it poorly. I think we’re talking at cross-purposes, and could even have the same goals in mind. My point is, it is poor reporting to simply call up all sides, write down what they say and print it. It’s poor, but it is done all the time. Ask any accomplished reporter, or editor, and I’m sure they will tell you that is not what they want. I believe if you read my stories fairly, you’ll see a lot of complexity. My point is, after a lot of reporting, I have to make choices about how to tell the story, what to include and what not to, which quotes to use and so on. Those choices are based on my judgments (which are based on my reporting) about what the story really is — about what really happened, and why. Those judgments may be wrong — if someone thinks they are, they can endeavor to prove it through their own reporting. But they are made in good faith.
Howard,
Yes, I agree there were not any real “winners” here. This ordeal apparently took a toll that goes beyond anything that can be repaired by any permit after the fact.
I think your suggestion regarding using the local courts makes sense. Although I would worry that local courts could be overwhelmed with cases if the agency really decided to go after landowners on a more wholesale level. Once the bill is shifted to the town to prosecute the cases then their may be no incentive to be selective about who you prosecute. It seems to me that the agency sort of nit picks its cases now. As we all know the numbers of “violations” is pretty widespread if the agency was really to enforce regulations that are somewhat vague and complicated. I would start be re-writing the rules in a way that folks can understand as a starting point. The first thing to do is to outline when a permit is not required, this “jurisdictional inquiry” system is the first thing that should be revised. I think that even the folks at the agency are not sure half the time when they do or don’t have jurisdiction.
As for defining this as a “class struggle”, I grew up in the Adirondacks and my mother’s family has been there for generations, so I see where you are coming from. I am also a second homeowner on the lake I grew up on, and I own other Adirondack property as well. Much of my immediate family lives and works in the Adirondacks. So my perspective comes now from someone on the outside mostly looking in. I can tell you that your views are shared by many people outside the “local population”. As you know it is also NOT shared by many folks that live in the Adirondacks. There may be a “struggle” but I don’t really see it as a “class struggle”. To define it as such takes away from the fact that this is (like it or not since the state has decided that it will manage zoning in the Adirondacks) a statewide issue that involves every “class” that we have. Whether you are a wealthy second homeowner on Lake Placid or struggling to make ends meet in a town like St. Regis Falls or even a poor guy in NYC that will never step foot inside the blue line, everyone has a stake in this and everybody deserves justice. I don’t think anyone can argue that point.
Brian, question for you. If you think that Mr. Jones’s cabin was/is a “violation” (let’s say the APA was correct) what do you suggest we do with all the other useless private parcels in the Adirondacks that can’t be built on? Should landowners like this just burn the deeds since they apparently can’t do anything with them? He only has an acre what is he supposed to do? When that rule was drafted I am sure that the folks that wrote it understood that most of the property already sub-divided along many rivers and lakes was usually made to be just over an acre in size. Look at a tax map when you have chance. That rule was probably written in an effort to bar development on those parcels, of course that also strips the value that many long-time Adirondack landowners had been counting on to be their legacy. Hence we see much of this viewed as a “class” issue. The big parcels have many development opportunities the small ones are just like part of the Forest Preserve “forever un-build-able”.
Will, I’m sorry you feel that I twisted your words. I am not sure how though, you just again stated that your stories are based on your judgments and choices of what to include and what not to… that is essentially what I am saying you did. You chose to only present one point of view of this conflict.
Yes, it is true that I have never reported on a story like this and am not familiar with your process. I am however very familiar with reading reported stories like this, and I really can’t recall having read another series of articles about a conflict where one side has their point of view almost completely omitted.
Again, if you disagree with this, feel free to point out where in this recent article you believe you made an attempt to explore and present a point of view other than that which agrees with Mr. Jones.
I don’t see it, and so what you have done here, in my opinion, is write a personal interest opinion piece that favors the side of the conflict you agree with… which is fine. I’m not saying this was necessarily done in bad faith.
What I am saying is that the community could use a more complete, balanced, and critical presentation of these issues. If not from you, then from someone else. That would be my goal… if your is the same, then yes, we do share goals.
Dave,
There appears to be many quotes in the story from past and present APA officials regarding this case. Their position appears to be clearly articulated. The Agency was adamant that the cabin was illegal and their reasons are stated in the articles.
What else are you looking for?
As far as comments from the “other side” regarding the negotiation you can’t do much about this reply:
“None of the state officials who were there would comment on what happened in the meeting.”
And for the APA person who managed the case internally for years you get this:
“Rottier refused to answer any questions, following APA policy to funnel all press inquiries through McKeever.”
If they won’t comment there isn’t much Will can do about that?
As for comments related to Post Star reporting maybe you should direct your comments to their discussion page. There is way too much Post Star bashing on this blog. But sometimes the topic is just that “Post Star Bashing”. The stories are interesting, just take them with a grain of salt if that is what you think they are worth.
Paul-
Thanks for the comments, they are appreciated. I do disagree on one thing. This isn’t a state wide law. It is in reality what is called a “special law” vs. a “General law”. It only applies to the Adirondacks (I refer to the APA act). Myself and many other local people look upon it as a “separate and unequal law” as it creates a separate class of citizens commonly called “Adirondackers” by many in the press and even by the APA on occasion. Adirondackers are often referred to in some negative way, not always but more often than not.
I remember Ross Whaley’s comment, “They would rather fight than celebrate.” The word “they” referred to a separate group or class of people, fight vs. celebrate referred to negative vs. positive. I realize that most people don’t give it much thought but the constant negative depiction has one intent.
Another label that bothers me is one that Brian uses in his article. “Property rights activists” is a label used to define the class of Adirondackers that don’t like the APA. To me, property does not have rights, people do. People have the rights outlined in the constitutions, including the rights to own and use their property. The correct phrase should be “people’s rights activists”. When you look at the actual arguments in the Jones case you come to realize that what was upsetting to Tim was not being afforded the same rights as his neighbors. These rights included his due process rights.
Will –
I received the same documents as you were given by McKeever. I read them thoroughly. I also reviewed about a dozen Enterprise stories that had been written about the case since 1992. I interviewed four people for story – two on each side. If I was writing a three-part story as you did, I obviously would have reached out to others involved with the case, directly or indirectly. However, given the fact that the permit and settlement had been approved a month earlier and no one had reported on it yet, I felt it important to write a story about the facts of the case out in a timely fashion for our readers. If you’ve got something to say about the facts I’ve reported on, if my reporting has been inaccurate, then come out and say it. Otherwise the debate over who had more sources is moot. If I was writing a story that was as long as your three-part series was, I obviously would have had more sources.
You’re right that my story was written in a “this person says this” style, for a reason. I wanted to be objective and unbiased, and let the readers draw their own conclusions. I deliberately avoided making my own judgements about this case and writing a story that illustrates those judgements, because I don’t believe that’s something a reporter who’s trying to be fair to do. You may call it “mealy-mouthed” or “dull” or “lazy,” but at least it’s objective.
Interesting discussion.
Again, I don’t think this resolution was wrong. I agree that 18 years is a really long time for any proceeding to drag on.
But I do think the path used to get to this resolution is questionable.
Not least because it doesn’t appear to help other people who might be in Tim Jones’ situation.
Unless something changes radically, the APA — or some comparable governmental agency — is going to be dealing with questions like this for a long time.
If the Governor thinks something went wrong here — and he clearly does or he wouldn’t have intervened — he should explain what it was and propose reforms.
Without that kind of follow-up and public process, I fear that this action runs the risk of politicizing the APA’s already awkward and unwieldy enforcement process.
–Brian, NCPR
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Yes, Howard again I understand where you are coming from. I was pointing to the fact that there are a number of Mr. Whaley’s “theys”, like myself, outside the Adirondacks. There are also a number of folks that don’t fit into Mr. Whaley’s “they” box inside the blue line.
I understand that the act was legislated at the state level and affects only a particular portion of the state. That is perhaps unfair. Personally I think that local zoning boards could easily manage zoning in the Adirondacks. The rules would probably not look much different than they do today, but they would be far more effective. Tim Jones’s case is a clear example of that. Perhaps Brian thinks that without a state mandated zoning law that cabins and sea walls might pop up all over the place over time. I don’t agree. Perhaps in 1970 things were getting out of hand and local communities were not equipped to manage zoning issues. That has all changed. In fact most developers will have an easier time with the APA board than they will with a town board these days. I think many folks in the Adirondacks will be far stricter that the APA act when it comes to what they want in their towns.
Brian-
I find it hard to understand where you’re coming from. I see the process as very political prior to the resolution of this case. Perhaps you just don’t understand the enforcement process and how it works, or doesn’t work.
The APA usually has about 300 enforcement cases per year. Some years more and some less. Of those cases probably just 3 or 4 go to court each year. Most are resolved at the agency, without even going to a hearing. Been there, many times.
Once the commissioners make a decision on the few cases that actually go to a hearing either the individual is forced to appeal or the APA is forced to go to court to ask a court to enforce its decision. That is if the individual doesn’t agree to the APA’s decision after the hearing. Some cases, the commissioners make their decision and the case just dies, it does happen.
The process is very flawed right now. It is extremely political, and not in the Rep. vs Dem. sense.
In Tim’s case, the agency staff never took the case to the commissioners but instead went right to court. Judge Ryan remanded the case back to the agency for a hearing. The case went back to court and again was remanded back to the agency for a hearing. It wasn’t until the agency was threatened with going back to court the third time that they actually scheduled an administrative hearing.
You were not dealing with a Sandy Lewis or Spegal, someone with lots of money to go back and forth to court here. It took three and a half years for the agency to schedule a hearing.
Many times enforcement cases are like fishing trips. The action is started to force the individual to disprove a negative.
You can’t judge enforcement cases by the Lewis case. He could afford justice, it was just a mater of price. Very few enforcement cases have followed the procedural example of his case. Very few ever go to court. I think it is safe to say that more are settled by the AG’s office with somekind of agreement than by the court. Most are just settled by staff at the agency.
I also have to say that most of the time the cases are settled by staff and the individual without a lot of trouble. It has also been my experience that Adirondackers in general are treated slightly different, usually less harshly. Yes, you read that right.
The Jones case was very different, right from day one. It was very political and Jim Frenette said it better than I could.
What was the cost of this case from start to finish?
Chris,
The only reason I mentioned your story was it was the only other one I could find on the subject. I wasn’t criticizing it, I was responding to Dave’s criticism of my story as having no representation from the APA side when, in fact, there is a lot of representation from the APA side. To show that, I compared it with yours, which I assumed Dave had seen and liked better. Your story is a different sort of story from mine, that is all. I was not in any way referring to your piece when I said mealy-mouthed, lazy and dull. I was referring to a particular tendency in journalism with which, after 20+ years in the field, I am very familiar. I’m bothered by your post because I think it’s wrong for reporters to start taking shots at each other (and there is way too much of that going on on the Web, in my opinion) — we should stand together, if possible. I have a long history at the ADE, as you might know, and love the place. I would not take a shot at anyone there except in extreme circumstances. I thought your story was well done.
i believe the article was biased….as is the apa….how can one stacked agency, the apa, have the unmitigated gall to
Brian Mann is hung up on the Govenors “medaling in an on-going legal proceeding” in the Jones case yet does not seem to be to interested in the Govenors meddling in an on going legal proceeding called the Hornbeck nomination. I guess maybe he has some different thoughts on the definition of “legal proceeding ” .
Will,
I never suggested that your stories had no APA representation. What I said is that you failed to represent points of view other than those that agreed with Mr. Jones’ side of the conflict. Quoting former APA officials who agree with the premise of your story does not somehow constitute representing the other side.
You’ve gone to some length in the comments above to explain why you presented the story the way you did, and I understand your explanation. I just think the community deserves a more balanced treatment of the issue.
Changing gears, and at the risk of sounding like I am piling on you, I have to admit that I did a double take at your suggestion that journalists should “stand together”. Of course no one should be taking petty shots at someone else (and I don’t see where Chris did), but I hope, and I will assume, that you agree that journalists should absolutely question and challenge one another’s work in situations like this.
Anyway, for what it is worth, as critical as I have been about the tone and presentation of journalism when it comes to these issues… I have to say it is awfully impressive that conversations like this one are possible. It may just be a situation where everyone agrees to disagree, but – for me at least – it drives home the point that everyone cares deeply about this place. My appreciation to Brian for allowing it to take place in an only somewhat related post.
Howard –
I have followed a number of enforcement cases from start to finish. I have a pretty good grasp of the weaknesses of the system.
As I’ve reported before, environmental groups are just as convinced as pro-development and property rights groups that the system is broken.
Again, I’m actually suggesting that the Governor do more here, not less.
It seems that the Governor agrees that the system broke down. Fine. So he should propose fixes.
Not just a one-off fix that pulls Tim Jones out of a mess, but a bigger fix that avoids these multi-year entanglements in the future.
He should do so openly, publicly, with a process of reform that allows public comment.
–Brian, NCPR
Brian,
Even if a bigger fix is necessary, and I think you can make a good case for that, is that a reason not to do the small fix? And, geez, Dave, I wasn’t saying Chris was taking a shot at me. I was saying I was not taking a shot at him. And I stand by the “standing together” comment. We need some collegiality and mutual respect in this business. That said, I agree that constructive criticism and respectful, if tough, questioning — and I think Brian M. has provided that — is valuable. There is way too much uninformed sniping out on the Web, including on this issue, and by some who at least call themselves journalists.
So Brian, what do you suggest as the “big fix”? I have an idea. Let’s take the APA staff that manage public land issues (UMP’s and classification etc.) and integrate them into the DEC. They have to work with the DEC on those issues anyway, having them separated make little sense. It also removes the name, APA, from the process. That will immediately calm some folks, even if it is only symbolic. They will still be doing the same thing. Environmental groups and others wanting to weigh in on those issues can just lobby in a different building.
Now the APA will have a new role, oversight of zoning in the Adirondacks. But the actual rules and regulations will be administered and enforced at the town level. This would be similar to how the EPA now oversees wetlands regulations that are “administered” by the APA in the Adirondacks. The APA will help to train and advise local zoning officers during the transition. Eventually this will probably mean a smaller staff at the APA, they are moving in the direction anyway.
If the APA sees a problem with how zoning is being done in some towns then the agency (and potentially the AG if necessary) would have an enforcement action on the town zoning board, not on individual cases. The APA could still have limited regulations regarding minimum setbacks, height restrictions, etc. But the towns can then either use similar regulations and or more strict regulations if they think they are appropriate for that particular area. Maybe a town like Santa Clara (including lakes like Upper Saranac) want to have setbacks that are larger or lot widths that are wider in an effort to keep their lake from turning into areas like we see on southern Lake George. I think in towns that include lakes like Upper St. Regis you will see strong support for strict zoning regulations that maintain that area’s low density of development. Variances can always be used in cases where there is strong local support for a development project that is viewed as valuable for the local community.
The big difference is that it allows the town to decide. But the main thing you also get is the ability to enforce the zoning laws at the local level. Once the town judge rules on an enforcement case there is very little room for appeal. An individual can try but they will almost always find the decision made at the town level to stand. This solution also maintains the ability at the state level to have some control over land use in the Adirondacks. Everyone here seems to agree that something is broken but what is an alternative fix??
I should have added above that this will mean that all the towns will HAVE TO STRONGLY enforce zoning regulations. Many towns have asked for this power and under this they would be required to do it. They CAN do it now, but there is little incentive when there is another agency doing the same thing. Some towns now defer to the APA on zoning issues since why duplicate efforts. This would have to be a thing of the past. I think that most towns can handle it, some will need some help. The APA tries to do that now anyway. That role would not change. Many folks I am sure will hate this idea, and think that this would mean a free-for-all for development. I don’t think so. There are many beautiful areas in the county that have zoning that doesn’t even include the “oversight” function I describe above and they are doing just fine. You sell this idea to environmental groups by pointing out that enforcement is not working under the current system. Some folks still would like the APA to have NO role in Adirondack private land use regulations. That is simply not realistic given the political makeup of this state.
Brian-
I believe that more is being done, both at the APA level and at the Governor’s office. In the 20 years that I’ve been involved helping people with their APA cases I’ve seen many changes. The current changes give me a little hope, just a little.
Some things can’t be done in the open, nor should they. Everyone seems to ignore the new appointment in enforcement and what his job entitles. If done right this could help a lot. Someone made a decision to create this new position.
I don’t write stories. You may have followed several enforcement cases from start to finish but that isn’t the same as being involved with all of the details involved in a case. Sometimes the facts are never brought out into the open for reporters to see.
One example, Tim actually applied for the permit sometime prior to the meeting at the Governor’s office. The permit that he had applied for was for the cabin. The APA refused to process the permit because they were insisting on him applying for a permit for a single family dwelling. That point surprised people at that meeting. Tim got the permit for the cabin not a single family dwelling.
I also have to say that I gained a lot of respect for Jim Frenette because of his truthful comments in Will’s article.
Howard,
Tim did not originally apply for a permit because he understood that his property was “non-jurisdictional” correct? So I understand this, if this is a pre-existing subdivision with a DOH approval then an APA permit is not required for the construction of a single-family dwelling? Is that correct. I saw here in a 96 administrative hearing ruling on the case (http://www.dec.ny.gov/hearings/12015.html) that at that time the APA was still contending that the property although in a pre-existing subdivision had no DOH approval (the APA’s claim not mine) and therefore required a permit for a structure. So I understand both sides’ claims at that point. When did the whole “wetland issue” come into play? It doesn’t sound like that was an issue till later, or maybe never?
Also unrelated, I see that you were representing Tim at this point and maybe still in the governors office. Howard aren’t you a member of the LGRB? As I understand it that is “part” of the APA, albeit non-voting, created by the act itself. Assuming that is correct, I wonder how the judge didn’t see that as an inherent conflict? The LGRB is not necessarily adversarial to the agency, it is supposed to be advisory right? I am surprised that the judge would allow someone that represents the APA as part of the LGRB represent an individual that is involved in an ongoing enforcement case. Just curious if you have ever had any trouble acting in both regards? It sounds like you have worked very hard to help folks that are involved in enforcement cases.
Paul,
Personally I think that many towns in the Adirondacks can do fine with no zoning at all. A Site review law can specify subdivisions, setbacks, etc. Heavily rural towns do not need seperate industrial, commercial, residental, etc. zones because little commercial development will happen anyways. I also fail to see why the APA needs to continue with maximum height requirements. Taller buildings take less surface area than a shorter one story building.
Recent developments in NY state government should give pause to those who think it can govern better than local communities.