Supreme Court upholds APA’s permit amendment decision
for the last undeveloped lot in Upper Saranac subdivision
By Gwendolyn Craig
Seven homeowners in a Franklin County subdivision on Upper Saranac Lake are planning to appeal their unsuccessful lawsuit against the Adirondack Park Agency and two of their new neighbors over development plans for the last vacant building lot.
Suzanne Carrillo Kern, Howard Kern, Jeffrey Haidinger, John Brennan, Jean Brennan, Mary Ann Randall and Christopher Cohan sued the APA and Paul Leinwand and Maria Cicarelli last year. The APA had granted an amendment last summer to the Deerwood Subdivision’s 1980’s permit. The subdivision is in the Town of Santa Clara. The amendment allowed Leinwand and Cicarelli to build a septic system 100 feet back from wetlands, as opposed to the permit’s original 200 feet. Leinwand and Cicarelli’s lot, records show, was supposed to share a common sewage area with the Kerns’ lot. But the Kerns’ lot was developed without consideration for the septic on the vacant lot.
The Kerns and the others stated that they would no longer be allowed to use informal walking trails across the vacant lot and that there would be increased noise, light and environmental impacts. The group’s leading concern is a belief the APA’s permit amendment was less protective of water quality.
The APA defended its decision, saying Leinwand and Cicarelli’s planned septic system would be more protective than the systems available in the 1980’s. The proposed design met or exceeded the APA and state Department of Health’s setbacks and standards.
State Supreme Court Judge Richard Meyer ruled in favor of the APA and Leinwand and Cicarelli on June 29. The court may not substitute its own judgment for the agency responsible in making a determination, Meyer wrote. It must only decide if the agency’s decision was “arbitrary and capricious.” He did not believe the APA violated its own procedures with the septic system permit amendment.
“There is nothing to suggest that the impacts from a failure of the proposed wastewater treatment system would be any greater than would a failure of the existing wastewater treatment systems on the already approved lots of the subdivision,” Meyer wrote.
On July 26, the group of neighbors, represented by Attorney Claudia Braymer, filed a notice of appeal to vacate the permit amendment. Braymer said her clients have no additional comment at this time.
The appeal stated the APA “eviscerated substantial terms and conditions of a prior APA permit intended to protect the fragile wetland ecology of the property.” The appeal accuses the agency of failing to apply proper wetlands criteria, treat the application as a new permit, apply the shoreline restrictions of the permit and consider undue adverse impacts. The complainants charge that the APA lacked a reason to reverse the prior permit.
Dennis Phillips, attorney for Leinwand and Cicarelli, said he was impressed with the court’s decision and surprised at the notice of appeal.
Adding to the fray, several environmental organizations wrote to the APA raising concerns about tree cutting. The group said Leinwand and Cicarelli would “cut out a viewshed from their new home.” The Adirondack Council, Adirondack Wild: Friends of the Forest Preserve, Protect the Adirondacks and the Upper Saranac Foundation wrote the proposed clearing would be detrimental to the wetlands and shallow shoreline of Upper Saranac Lake. Leinwand and Cicarelli had requested in previous documents improving their view of the lake by taking down trees. The APA had directed them to separately seek agency approval for that.
The environmental organizations asked the APA to consider such a request a “major project” to be taken up by the full APA board for review and consideration.
The APA said on Aug. 15 it had not received such an application from Leinwand and Cicarelli.
Phillips said the organizations’ letter and concerns were “wild speculation and unconstrained hysteria…. intended to be an APA intimidation tactic or just an exercise in uncontrolled bad judgment.”