Revisiting Sandy Lewis vs. the APA
The Glens Falls Post Star wrapped-up its four-part series earlier this month re-examining the impact of the Adirondack Park Agency’s losing court fight against Essex farmer and millionaire Sandy Lewis.
Writer Will Doolittle finds a lot of sources who see the APA’s defeat in the case as a kind of Waterloo for the Agency, a defining moment when regulatory over-reach and bureaucratic bullying hit a brick wall.
The series is well written and offers interesting new insights into the case. And I agree that the Lewis battle will resonate in ways that are worth investigating.
So my thoughts here aren’t a critique of the Post-Star’s investigation. But I do see this case and its long-term significance differently in a couple of ways.
First, the narrative offered by Doolittle suggests repeatedly that the legal action against Lewis — over farmworker housing that he proposed to build without an APA permit — was largely driven by individuals within the APA.
Lewis is portrayed as goading APA officials, chiefly senior enforcement attorney Paul Van Cott, into a legal trap.
“There’s documentary evidence of how Paul Van Cott feels about Sandy,” argues one member of Lewis’s legal team.
“That’s not what we’re supposed to do as professionals. If he thought that all along, it makes you understand what his motivation was — to punish a sociopath.”
I do think personalities played a role here. People are human, even state officials. As Doolittle’s article makes clear, dealing with Sandy Lewis is no picnic.
And Van Cott clearly crossed a line, sending Lewis an email calling him a “sociopath.” Van Cott later apologized and was reassigned.
But my interviews with APA officials suggest that there was a much broader consensus within the Agency that this was an important, precedent-setting case and a fight that was both worthy and winnable.
What’s more, the decision to pursue legal action against Lewis was reviewed at multiple levels, well above Van Cott’s pay grade.
He was lead enforcement attorney at the time, but the litigation was also green-lighted by the APA’s senior staff, a politically-appointed team which generally vets big decisions with the governor’s office in Albany.
It was also reviewed and confirmed by the APA enforcement committee, a panel which includes several Park residents (Arthur Lussi, Frank Mezzano and Bill Thomas) who are widely viewed as favoring property rights.
It was then reviewed and approved again by the state Attorney General’s office, which actually prosecuted the case.
So if pursuing this case was wrong-headed, the breakdown appears to have been far more systemic and not a case of one APA bureaucrat pursuing a vendetta or getting suckered into a losing fight.
Which leads me to my second point: I don’t think losing court fights of this kind is such a bad or game-changing event for the APA.
Doolittle reports, accurately, that several judges ruled that the APA’s legal arguments in this case were particularly thin.
I happen to agree. From the beginning, I found it difficult to understand how the Agency would win this one based on my reading of the law.
And it’s worth asking how so many people who reviewed this case on behalf of the state of New York got it so wrong.
That said, however, litigation is one of the ways that the exact meaning of laws and regulations are defined. This is one of the most important roles that courts play, clarifying just how far-reaching governmental powers are.
One problem in the Adirondacks is that so many environmental rules lack significant case law, which means that everyone — including APA staff — operates in a kind of fog of interpretation and negotiated compromise.
Lewis’s case was incredibly important in this respect.
It drew a bright line for the first time, limiting the APA’s authority over new home construction on farms. Long after Van Cott and Lewis are forgotten, this clarity will remain as a matter of law, and that’s a good thing.
But getting things wrong occasionally is also pretty normal for regulatory agencies.
I can’t find any sign that this apparently poor decision was part of a pattern of regulatory overreach. On the contrary, in court fights over the years, the APA has scored a pretty high batting average.
That’s one of the things that makes this case so unique.
Indeed, not long after losing the Lewis case, the APA prevailed in the high-profile Spiegel case, in which another wealthy landowner alleged that enforcement was biased and politically motivated.
Finally, one of the arguments that critics of the APA make is that the agency operates as a kind of 800-pound gorilla, threatening and overpowering more average landowners who can’t afford costly legal fights.
My research on this point shows a mixed picture.
Some landowners and activist groups insist that the Agency’s staff are bullying and manipulative; others say they are flexible, helpful and open to compromise.
Statistics show that the vast majority of enforcement cases are in fact settled through some kind of negotiation, without the need for a court fight.
Still, I do think it’s a good idea for locals to have a kind of legal defense fund, so that they can take on state officials when they feel that the APA has overstepped.
Over time, court fights of this kind — whether sparked by environmentalists, property rights groups, or activists like Lewis — will define more clearly what the Park’s rules mean, and how much regulatory power state officials really hold.
Tags: adirondacks
“APA staff — operates in a kind of fog of interpretation and negotiated compromise”. I totally agree with you here Brian.
The most sound argument against the APA is based on the fact that it’s rules and regulations appear specifically designed to “operate in some kind of fog”. When you want to do something in the Adirondacks what is the first step? Go and look at a list of things you can and cannot do with your property? No, go through a process they call a “jurisdictional inquiry”. Right out of the box you are faced with a fairly subjective process that is not very securely based in the law. This case was pretty clear, it makes me wonder about the real “foggy” ones. Brian, it sounds like you got it right and all the attorneys for the state and everyone else on that side got it wrong. That is a troubling question for tax payers.
Brian you think that the rules need to be somehow vetted in court. Personally I think that is a ridiculous way to run the show. First of all it doesn’t make economic sense for the agency. And some critics are right, it means that only a guy like Sandy Lewis with deep pockets has a good chance at getting a fair shake if it comes down to litigation.
Brian the “court fights” that you suggest are one way to clarify the issues, but that just doesn’t seem like a sensible way to go. If we don’t make the rules more clear than this will be the only option. One example, the APA has spent decades mapping wetlands all over the Adirondacks. They have some pretty good maps now. If you think you have a wetland on your property and you may be in need of some kind of permit because of it, can you refer to the map? Nope, you need to have a jurisdictional inquiry, and have a staff member make a site visit. Like you said Brian these things always involve “people” you better hope you don’t catch someone on a bad day?
Brian, sure litigation is an important option when you hit a true grey area. You really think that was the case here?? This seems to me to be one of the truly less grey areas in the APA act. If that is the case we better sharpen our pencils and get out our checkbooks if we want a fair shake. Just look at what this case cost. A local “legal defense fund” probably isn’t going to cut it.
Paul,
1) These vague regulations are not unique to the APA, look at the Lake Placid boathouse thing or and other local zoning/code battles.
2) Wetland maps – Maps are maps, not the real world. what makes you think “people didn’t make the map?
Sounds like you have some sour grapes on your bologna sand witch today.
Paul –
A lot of the issues that you raise are valid, and the Agency has pursued an agenda of regulatory reform recently designed to clarify what the rules mean.
Naturally, that process too has been somewhat controversial…
–Brian, NCPR
No sour grapes, just observations. My personal dealings with the APA have been very good. But I can easily see the problems with the way this particular piece of legislation was written. And I happen to think that because of it we unnecessarily see these kinds of legal, jurisdictional, and personal battles develop. Sure we can go on and accept that these regulations are as vague as some other regulations, and that we will only clarify even the “least foggy” ones in a court but that doesn’t seem to make sense. Especially when it is going on in a state that is hanging on by a fiscal thread.
Okay, we can also just spend time and money and create maps for the fun of it and leave all the decisions to overworked and underpaid staff, but that just doesn’t seem to make sense either. It makes good sense if you make your money in the legal profession but for the rest of us it just doesn’t seem like the best way to go.
Brain,
The agency has also pursued and agenda to increase their jurisdiction at the same time. Given the controversial nature of the process it makes sense to go in and really reform the regulations first and then try and broaden their powers if they think it is necessary and legislatively palatable.
I’ve seen the recent emails Lewis has been sending around. If not “sociopath”, slightly oddball for sure.
The guy accused you of “incest”:
“Incest comes when Brian Mann of NCPR kisses up to APA, Adirondack Council, and is funded by those whose money, given anonymously, is used to bludgeon LeRoy Moses Douglas and John Bruce Maye – so that Brian Ruder might buy that which Maye and Douglas own – on Silver Lake.”
And the rambling goes on and on…..
Will Doolittle is a competent, well-educated journalist. He graduated Stanford, St. Paul’s School, and has adopted with his wife in a manner that is exemplary. I have met the man once. I know journalism. We have owned newspapers.
Brian Mann is a college drop out – an opinionated APA advocate, not a journalist. When offered the interview, he declined. I OFFER AGAIN HERE.. When invited to meet at a miserable gathering of park leaders, in the dark of a Willsboro room where it was not easy to see, he ran his tape as I discussed incest – the #1 health issue here. I know. We help. Ask Judge Meyer. He will have no trouble confirming this and more. The region is in free fall. APA has caused much of this with relentless pressure on locals. And APA has its ring of 501(c)(3). Brian Mann works for one of three that advertise jointly. WAMC, one of these, has yet to mention this case. APA has yet to mention this case. How about that?
For those who doubt that this case was deliberately provoked by me, ask Ron Jackson. He lost his 5th term over this. He has many issues, but he admitted his action to Doolittle, and denied it to me.
I will spell it out – day by day – and it was witnessed.
APA has exhibited many issues over time. Dan Fitts and Bob Glennon offered examples of behavior I found devastating. I like Dan.
Many want to abolish APA. Not me.
Many have fled APA and DEC in the last few months. Some have had no choice. More to come. A not so gentle house cleaning is in order.
Brian Mann’s familiarity with APA big ups stands in contrast to Doolittle’s. They will not speak with Will Doolittle. They just love Brian Mann.
Glen T. Bruening Esq., of Paterson’s legal office ended the Tim Jones case, and Barbara Rottier’s career ended.
APA did not consult with Paterson in our matter. APA did consult with Judith Enck – and she consulted with Adirondack Council. She also advocated and then ran for cover when the law came down. She is a dope.
When Brian Ruder offered – in exchange for a deeper financial relationship from us – to intervene with Enck, I called her. Rather than bother with Ruder, I asked her if she was aware of Glennon’s behavior at APA – and of Fitts. She got flustered. I provoked her. She is not bright. Easily rattled.
APA is a weakened, tight, poorly managed entity. Art Lussi asked me – witnessed – if he might build 30 or more houses when we lost. He said we would lose. He went off and voted against us on March 13th. He posed his request at APA in the intermission after the presentations – just as they went off to vote in camera. He also suggested by phone that we ignore the cease and desist order and negotiate the fine to $2,500 from $10,000. Van Cott tried this gambit, too, but did not mention Lussi. I gave each the back of my hand. It was more useful to kill them in court.
It is a waste of time to bother with Brian Mann. He lacks the ability to address these issues – and offers revisionist clap trap after the fact.
For any who want detail on what happened, step by step, how this was planned and provoked – and why – just call us at the farm.
State Police, prison guards, teachers, neighbors, farmers, retired people, clerks and locals – the common folk up here are thrilled with this. We are giving away 100 copies of the 4 day series. Some want them signed.
No national daily has devoted 4 cover issues as did The Post-Star, not that we have been able to find. Sunday, Monday, Tuesday, Wednesday – all to the point. We placed them at our web site: http sblewis com
Will Doolittle has other pieces to write. The Pulitzer is designed for this sort of journalism. The New York Times and The Washington Post have called. Managing editors. More work is in progress. This is but the first.
NPR is silent. Adirondack Council is silent. Funders are silent. Those who have advocated as Ruder has are all running for cover.
We were the largest individual donors to WAMC. Chartock is silent. Alan knows.
This mess is about money – and I plan to be on Fred Dicker’s program next week to discuss aspects of this a third time. TALK1300 AM radio.
The little people of the Adirondacks do not listen to NCPR and Brian Mann. His audience are those who want what the little people of the Adirondacks must sell as their lives are deconstructed by APA pressure.
For those who want more – see the web site.
Unique: – four articles in sequence – carried front page, Sunday, Monday, Tuesday, Wednesday in an important regional daily, part of a national chain that includes the St. Louis Post Dispatch. This has not happened in another daily – according to those who have looked. The APA enforcement disaster, Van Cott’s name will be associated with his midnight ‘socio’ blast – in The New York Times – for the rest of time. His career is over – APA knows this – and carries him at tax payer expense. Van Cott’s record in Maine is not researched – but is known. APA is now obliged to pay legal costs in losing – for one simple reason. APA ignored APA law. Heads are rolling at APA. My bet: Curt Stiles is out, John S. Banta will be terminated, a changed look is in order. Andrew Cuomo will not want his failure in this case as AG to haunt him as governor – and he will not do well as governor, regardless. The word is on the street. People at APA know this.