By Gwendolyn Craig
Paul Leinwand and Maria Cicarelli haven’t built their home yet, but their future neighbors are not rolling out the welcome mat on Upper Saranac Lake.
Instead, they’ve delivered them a lawsuit.
Homeowners in the Deerwood Subdivision in the Town of Santa Clara have sued Leinwand, Cicarelli and the Adirondack Park Agency over planned development for the subdivision’s last vacant building lot. Essex County Judge Richard Meyer signed an order halting tree cutting, wetland disturbance and constructing of a septic system until a court hearing scheduled for sometime in September.
Meyer has been plenty busy lately with neighbors upset at the APA—and other neighbors.
On Aug. 3 he issued a state Supreme Court decision in favor of the APA and against former state Department of Environmental Conservation Commissioner Thomas Jorling. Jorling’s complaint was against a marina expansion on Lower Saranac Lake, where he lives. Now, Meyer will look at the goings on at Upper Saranac Lake and whether the APA is doing its job.
Spearheading the lawsuit are Suzanne Carillo Kern and husband Howard Kern, who live next door to Leinwand and Cicarelli’s lot. Planning documents show Leinwand and Cicarelli are building a five-bedroom home, a garage with breezeway, access driveway, walking paths and a dock on about 3.2 acres with 240 feet of shoreline.
The Kerns have a host of concerns about the development. They worry about increased noise and light, about not being able to use walking trails that have been frequented by Deerwood Subdivision residents and the negative aesthetics and decreased property values they expect from a new building project. In their complaint, filed with the court by Attorney Claudia Braymer (who also represented Jorling), they requested the judge keep walking trails on Leinwand and Cicarelli’s property open to their use.
Also in their complaint, and amplified by the Upper Saranac Foundation, is outrage over how the APA granted permission for the vacant lot’s development and the impact it could have on Upper Saranac Lake’s water quality.
An amended permit
In June, APA staff granted amendments to an old 1980’s permit for lots on the subdivision, amendments that circumvented water-quality protections built into the original permit. For example, the original subdivision permit required a septic system to be set back a minimum of 200 feet from wetlands. The 1980s permit references a bog wetland complex on the subdivision with rare plants that could be impacted by any influx of nutrients. It also calls on APA to hire a botanist to inventory the bog, though it doesn’t appear that was ever done.
The APA’s amendment allowed Leinwand to build it 100 feet back. The old permit also had stricter regulations around tree cutting, though it did suggest the APA could amend that.
Leinwand did not return an email requesting comment.
Court records and the old subdivision permit show that two lots, including Leinwand’s and the Kerns’, were intended to share a common sewage area. That area was 200 feet from sensitive wetlands on site. In a January letter to the APA, Leinwand explained why he was pursuing a permit amendment to install his own system.
“There was indeed a sewage system developed in this area, but only for lot ten, as its development was done separately from lot 9,” Leinwand wrote. “There was no consideration for a common system at that time.”
Leinwand requested a 100-foot setback for installation of a septic system “given the impracticality of trying to join a common system that is being used already.”
That didn’t satisfy neighbors, however, and the Kerns hired their own ecologist to conduct the wetland and botany study the APA apparently did not do. In fact, they hired a former APA executive director—Raymond Curran—to study their subdivision’s bog. Curran’s research and site visits led him to conclude that the Deerwood Subdivision bog on Leinwand’s lot was full of rare species, mostly plants. The lot, too, has streams running through it leading into the Upper Saranac. Curran also disagreed with how the APA classified the wetland, believing it should have had stricter protections.
“The APA should not proceed and the existing permit conditions should be upheld,” Curran wrote in his report. “Although some of the septic system technology has changed over the years, nutrient additions to the wetland, and to streams emptying into Upper Saranac Lake are still likely.
“Threats and pressures to the resource have increased, not decreased since 1988,” he added.
Curran’s report, along with about 70 comment letters from people against the lot development, were submitted to the APA. A handful of the comment letters were from the same authors. Among those that wrote against the project was Tom Swayne, president of the Upper Saranac Foundation.
Questioning the APA’s actions
While Swayne was concerned about the water-quality impacts to Upper Saranac Lake, he most took issue with how the APA approved the project. In letters between APA staff and Leinwand, the septic system amendment and development amendments were done separately. APA had deemed the changes separately and as “non-material.” Staff approved the permits without bringing the matter before the APA board of commissioners.
Swayne said the Upper Saranac Foundation board “is even more alarmed about the piecemeal approval strategy” believing that the project deserved “review and scrutiny at the commissioner level.”
At a May APA board meeting, Commissioner Art Lussi had told staff that permit applications involving septic systems near sensitive water bodies should be brought before the full board, Swayne also pointed out. Swayne said he and his colleagues were “genuinely concerned that approval of this project will set a precedent.”
Despite the protest, staff approved Leinwand and Cicarelli’s permits and the Kerns said site-clearing had begun at the end of July. Howard Kern made one last attempt to get the APA’s attention before filing his lawsuit. At the July APA board meeting, Kern had about two minutes during the public comment period to tell board members about his predicament.
Guy Middleton, lake manager for the Upper Saranac Foundation, also told board members that the project was “absolutely material” and there were water quality concerns.
“I ask the commission to take a closer look at what the agency staff has approved in the last couple of months, seemingly without your input,” Middleton added.
Commissioners took no action on the already approved permit. Less than two weeks later, the Kerns, Jeffrey Haidinger, John Brennan, Jean Brennan, Mary Ann Randall and Christopher Cohan filed their lawsuit.
APA spokesman Keith McKeever said the APA does not comment on pending litigation.
On Aug. 3, Meyer granted a preliminary injunction for cutting any trees on site, disturbing any wetlands and taking any action for constructing the septic system. He had crossed out the plaintiffs’ request prohibiting Leinwand and Cicarelli from constructing a secondary building and from taking action against petitioners for use of existing walking trails on their land.