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.
.jpg)
Paul-
I was representing Tim prior to Clinton County appointing me to the LGRB. It was because of what I was doing helping people through the APA process that I was asked to be the County rep. on the LGRB. This does not create any conflicts as anybody could act as an authorized representative at the APA in an enforcement case. As you say, if I had voting power it would be different.
The point of DOH approval is another subject. The Public Health law actually has a section that exempts subdivisions that sell less than a certain number of lots within a certain period of years. In that case no map is required to be on file with the DOH and jurisdiction for septic runs with the local town’s codes officer. The APA had actually investigated this subdivision years earlier and made decisions on this issue. With Tim’s neighbors the APA ruled that building a single family dwelling was non-jurisdictional. All of the rulings were somewhat different but they did have that one similar finding of fact and conclusion of law. It was only with Tim’s lot that they ruled differently and they argued that their previous rulings were a mistake (parkview case).
As for the Judge allowing me to represent Tim, twice, in Tim’s case and in another case, two different Administrative Law Judges ruled that I could represent the individuals. It was the APA that created a new guideline that prohibited me from representing individuals under the theory that it was the unauthorized practice of law. What is also true is that prior to, during, and after, the APA created that new guideling the APA was actually working with at least three other people acting in that same capacity. I know this because behind the scene I was helping those three other people and being copied with all of the papers. The only person that I know of that was denied the use of an authorized representative was Tim.
I don’t like being so long winded but the main reason for people such as myself representing others is that Attorneys do not like to handle APA enforcement cases, unless they have the money of say Sandy Lewis, out of fear that the APA will retaliate on other clients. I was told this by most of the attorneys that I contacted trying to get people help.
A lot could be learned by how the enforcement process worked or didn’t work in Tim’s case. Changes in the process could be made at the administrative level that would help avoid similar situations from happening. All it takes is a willingness by all sides to make the attempt.
Paul-
I have to add that prior to Tim’s case I could just call the agency, talk to an attorney on the case or an enforcement officer and settle a case quite easily.
scratchy, all of what you say may be true. I think it is true for some areas, and not true for others. But if we really want to make changes then we have to work inside the “reality” that we call NYS. Voters inside and outside the Adirondacks would have a say in any changes to how the APA operates. That “outside” influence cannot be overlooked. Also, for something like wetlands regulations you have to decide whether you want local, state, or federal oversight? Personally I think that you will have a better time with the state than with the EPA. The federal government requires (like it or not) that we “protect” wetlands. The whole country has made that decision. You have to follow through even if you are in a very remote area in the Adirondacks. Somebody’s got to do it, I am just saying do it in a way that keeps the decisions as “local” as possible. Like I said above then enforcement will be far more effective. If you say we are NOT going to do anything, first it’s not realistic, and second it will never sell downstate.
Howard, It is not long-winded. I think it is interesting. Thanks. The regulations are/were way to complex. I am surprised that most attorneys comment that they are concerned with “retaliation”. I interact with attorneys on a daily basis in my work and most just want to get paid (too much usually!). But I can understand that this dynamic is possible in smaller firms in smaller towns. I think this “fear” of the agency is beginning to wain as you see how some of these cases are resolved in favor of the landowners. Someone like Sandy Lewis, given his background, understands that if you want to prevail you have to go in with no holes barred. There is no substitute for good legal counsel. Usually, the more the attorneys make the better you do in a case. You have done a great job for Tim and others, it is a credit to your abilities. It’s never to late to go to law school??? I will submit another comment regarding the LGRB later.