{"id":2741,"date":"2010-09-22T13:26:52","date_gmt":"2010-09-22T17:26:52","guid":{"rendered":"http:\/\/blogs.northcountrypublicradio.org\/inbox\/?p=2741"},"modified":"2010-09-28T12:16:16","modified_gmt":"2010-09-28T16:16:16","slug":"revisiting-sandy-lewis-vs-the-apa","status":"publish","type":"post","link":"https:\/\/blogs.northcountrypublicradio.org\/inbox\/2010\/09\/22\/revisiting-sandy-lewis-vs-the-apa\/","title":{"rendered":"Revisiting Sandy Lewis vs. the APA"},"content":{"rendered":"

The Glens Falls Post Star wrapped-up its four-part series<\/a> earlier this month re-examining the impact of the Adirondack Park Agency’s losing court fight against Essex farmer and millionaire Sandy Lewis.<\/p>\n

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.<\/p>\n

The series is well written and offers interesting new insights into the case.\u00a0 And I agree that the Lewis battle will resonate<\/a> in ways that are worth investigating.<\/p>\n

So my thoughts here aren’t a critique of the Post-Star’s investigation.\u00a0 But I do see this case and its long-term significance differently in a couple of ways.<\/p>\n

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.<\/p>\n

Lewis is portrayed as goading APA officials, chiefly senior enforcement attorney Paul Van Cott, into a legal trap.<\/p>\n

“There\u2019s documentary evidence of how Paul Van Cott feels about Sandy,” argues one member of Lewis’s legal team.<\/p>\n

“That\u2019s not what we\u2019re supposed to do as professionals. If he thought that all along, it makes you understand what his motivation was \u2014 to punish a sociopath.”<\/p>\n

I do think personalities played a role here.\u00a0 People are human, even state officials.\u00a0 As Doolittle’s article makes clear, dealing with Sandy Lewis is no picnic.<\/p>\n

And Van Cott clearly crossed a line, sending Lewis an email calling him a “sociopath.”\u00a0 Van Cott later apologized and was reassigned.<\/p>\n

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.<\/p>\n

What’s more, the decision to pursue legal action against Lewis was reviewed at multiple levels, well above Van Cott’s pay grade.<\/p>\n

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.<\/p>\n

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.<\/p>\n

It was then reviewed and approved again by the state Attorney General’s office, which actually prosecuted the case.<\/p>\n

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.<\/p>\n

Which leads me to my second point:\u00a0 I don’t think losing court fights of this kind is such a bad or game-changing event for the APA.<\/p>\n

Doolittle reports, accurately, that several judges ruled that the APA’s legal arguments in this case were particularly thin.<\/p>\n

I happen to agree.\u00a0 From the beginning, I found it difficult to understand how the Agency would win this one based on my reading of the law.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

Lewis’s case was incredibly important in this respect.<\/p>\n

It drew a bright line for the first time, limiting the APA’s authority over new home construction on farms.\u00a0 Long after Van Cott and Lewis are forgotten, this clarity will remain as a matter of law, and that’s a good thing.<\/p>\n

But getting things wrong occasionally is also pretty normal for regulatory agencies.<\/p>\n

I can’t find any sign that this apparently poor decision was part of a pattern of regulatory overreach.\u00a0 On the contrary, in court fights over the years, the APA has scored a pretty high batting average.<\/p>\n

That’s one of the things that makes this case so unique.<\/p>\n

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.<\/p>\n

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.<\/p>\n

My research on this point shows a mixed picture.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n","protected":false},"excerpt":{"rendered":"

The Glens Falls Post Star wrapped-up its four-part series earlier this month re-examining the impact […]<\/p>\n","protected":false},"author":12,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[1],"tags":[22],"_links":{"self":[{"href":"https:\/\/blogs.northcountrypublicradio.org\/inbox\/wp-json\/wp\/v2\/posts\/2741"}],"collection":[{"href":"https:\/\/blogs.northcountrypublicradio.org\/inbox\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.northcountrypublicradio.org\/inbox\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.northcountrypublicradio.org\/inbox\/wp-json\/wp\/v2\/users\/12"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.northcountrypublicradio.org\/inbox\/wp-json\/wp\/v2\/comments?post=2741"}],"version-history":[{"count":1,"href":"https:\/\/blogs.northcountrypublicradio.org\/inbox\/wp-json\/wp\/v2\/posts\/2741\/revisions"}],"predecessor-version":[{"id":2786,"href":"https:\/\/blogs.northcountrypublicradio.org\/inbox\/wp-json\/wp\/v2\/posts\/2741\/revisions\/2786"}],"wp:attachment":[{"href":"https:\/\/blogs.northcountrypublicradio.org\/inbox\/wp-json\/wp\/v2\/media?parent=2741"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.northcountrypublicradio.org\/inbox\/wp-json\/wp\/v2\/categories?post=2741"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.northcountrypublicradio.org\/inbox\/wp-json\/wp\/v2\/tags?post=2741"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}