DAILY GAZETTE
Schenectady, NY
March 3, 2005
Page 1

Permit system called into question
Policy grants exclusive use to state-owned property

BY JIM McGUIRE, Gazette Reporter

The agency that regulates the Great Sacandaga Lake is suddenly confronted with the question of whether it has authority to continue issuing exclusive use permits for the state Forest Preserve land that surrounds the lake.

The challenge to the Hudson River-Black River Regulating District's 74-year-old permit policy comes in the April issue of the magazine Adirondack Life in an article titled "Reservoir Dogs" by Brian Mann.

The article suggests that leasing of state land around the lake to adjoining private property owners is in violation of the state constitution.

Peter VanAvery, the owner of a summer home in Edinburg and a frequent critic of the lake agency, notes that the state land at Sacandaga is not included on Adirondack Park Agency maps. He calls it the lake's "dirty little secret."

For seven decades, the Hudson River-Black River Regulating District has been issuing exclusive use permits for the land the state seized in the 1920s when it converted a valley of farmland into the 29-mile flood-control reservoir.

"I knew this was a potentially serious issue," said VanAvery, who as a lakefront property owner admits he is not about to advocate for the elimination of the permit system. He is concerned that someone could file suit to force the issue.

"In this litigious age, you never know what a lawsuit will bring you," he said.

A decision to open the lakefront land to public use would destroy property values, VanAvery argued.

But he may not have much to worry about. Officials at the HRBRRD and the Adirondack Park Agency said they are reviewing the policies. But they do not, as Mann’s article asserts, see a possible violation of the state constitution regarding the prohibition on leasing, selling or exchanging Forest Preserve land, they say.

Under the permit system, surrounding land owners pay a nominal fee for permits to use the state land lying between their properties and the water line.

APA spokesman Keith P. McKeever pointed out there are a number of land-use classifications for Forest Preserve land, including the least restrictive, administrative.

HRBRRD Executive Director Richard H. Lefebvre, who was appointed last year to reform the lake agency after serving as APA chairman, said he is not proposing a new land-use classification. But he said perhaps a new category governing state reservoirs might resolve the matter.

There is also precedent for the permit system elsewhere in the state, points out John Sheehan, spokesman for the Adirondack Council, an Adirondack watchdog organization.

VanAvery said he was asked by Mann whether it is fair to perpetuate the permit system and continue to prohibit the public from using state Forest Preserve land. "Seventy-five years after the fact, would it be fair to take it away?" VanAvery asked.

In a recent telephone interview, Lefebvre said he views his duties on the lake as administrative and said legal questions will have to be resolved by legal scholars. He does not envision the permit system being eradicated soon.

"It's been a very stimulating philosophical debate for many years and it will continue to be debated for many years," Lefebvre said.

In the meantime, the status quo may prevail.

"From where I sit, it's incumbent upon me to make the permitting system work as best I can," Lefebvre said. ". . . Our role is to carry on the mandate we have — to maintain this body of water and ensure the prevention of flooding (downstream)."

McKeever said the APA classified the lake land as part of the Forest Preserve in the 1970s, when the APA was created. He said the APA is working with the HRBRRD "to address all land use and development on those lands."

But, McKeever added, "it's (HRBRRD's) jurisdiction."

McKeever said there are special circumstances and leeway involving the use of state Forest Preserve land and said APA will be working with Lefebvre on the permit issue.

When Lefebvre was presiding over APA, the Sacandaga land use issue was never brought to the agency's attention. He said no one noticed that the state land under and around the lake was not even included in the APA's land-use master plan.

The APA's map shows the entire lake shore as private property, notes Sheehan.

Sheehan, whose family owns lakefront property on the Sacandaga, said land use on the lake was probably overlooked by the APA because another state agency -- the regulating district -- has jurisdiction.

Sheehan said there are precedents for granting permits to state land, including a system in place in the Six Lakes region of Herkimer County.

After seven decades of issuing permits and all the land transactions during that period based on the existence of the permits, Sheehan said it would be difficult to eliminate the system.

"The system works pretty well in terms of keeping (Great Sacandaga Lake) from becoming a second Lake George," Sheehan said, citing the extensive commercial development around the more famous of the two lakes.

Sheehan challenges Mann's assertion that individual permits are leases and thus in violation of the state constitution. He said they are one-year revocable permits and similar to a variety of permits issued by the state, including the permits issued to snowmobile clubs to cut brush and maintain state trails. Even if the permit system were eliminated, he said, the public would have access in most cases only from the water since the state land is generally surrounded by private property.

VanAvery said there might be public access at some rights-of-way, but the value of property near those access points would dwindle significantly.

Even if there is an eventual court ruling on the permit issue, VanAvery said a decision might recognize the public status of the land and not find the permit system in violation.

On the related issue of building permanent structures on state land, including seawalls, Sheehan said, there have been violations.

Lefebvre said he is not certain the term "encroachment" used by Mann applies to apparent violations he is aware of along the shoreline. But Lefebvre said in his year in charge of the agency he has learned of instances in which sea walls, wells, decks and, in some cases, the corner of a structure, are on the state land. Lefebvre said he is reviewing the matter.