Agency’s Upper Saranac development decisions challenged in court

Adirondack Park Agency’s permit changes called into question in neighbor dispute; hearing set for Friday

By Gwendolyn Craig

The Adirondack Park Agency is setting a worrisome precedent by disregarding its own rules and approving a “temporary” violation, an attorney representing homeowners in a lakeside subdivision asserts.

In papers filed for a Friday hearing in state Supreme Court in Essex County, Claudia Braymer, representing seven members of the Deerwood Subdivision on Upper Saranac Lake in Franklin County, claimed that the APA is ignoring agency rules and creating “weaker standards” that will result in “lasting negative impacts to not only the residents of the Deerwood Subdivision, but the entire Adirondack Park due to the precedent that this case will set.”

Her clients have sued the APA and their new neighbors Paul Leinwand and Maria Cicarelli over the development of the subdivision’s last buildable lot. They argue the APA wrongfully approved an amendment to the subdivision’s initial 1988 permit that is less protective of water quality. That authorized Leinwand and Cicarelli to install a septic system closer to wetlands draining into the sixth largest lake in the Adirondack Park.

Represented by the state Attorney General’s Office, APA responded that the development and amendment approved is more protective, the court record shows. The lawyer for Leinwand and Cicarelli has also filed records stating the lawsuit is an attempt by disgruntled neighbors to stop construction.

State Supreme Court Justice Richard Meyer is scheduled to hear oral arguments on Friday in Elizabethtown. 

In August, Meyer signed an order halting tree cutting, wetland disturbance and construction of a septic system on the lot in question. He refused to prohibit Leinwand and Cicarelli from constructing a secondary building and to prohibit them from taking action against plaintiffs, who wish to continue walking on informal hiking trails across the lot.

Braymer represents Suzanne Carrillo Kern, Howard Kern, Jeffrey Haidinger, John and Jean Brennan, Mary Ann Randall and Christopher Cohen. Braymer said on Monday that she is filing additional motions with the court this week due to a lack of information about how the APA came to its conclusions. She has also filed additional depositions, which the defense is calling “new evidence” and “misinformation” and is trying to have stricken from the record. 

COMMENTARY: Upper Saranac coalition voices concerns about APA ruling, wetlands

An APA spokesperson declined comment citing ongoing litigation. Dennis Phillips, attorney for Leinwand and Cicarelli, did not respond to the Adirondack Explorer’s request for comment.

Leinwand and Cicarelli purchased the 3.2-acre lot with 240 feet of shoreline at the end of last year with plans to build a five-bedroom home, garage, driveway, dock and walking paths. A 1988 subdivision permit required their septic system to be set back 200 feet from wetlands. In June, APA staff approved an amendment allowing for it to be set back 100 feet.

The 1988 permit also allowed for one principle building per lot. The APA is allowing Leinwand and Cicarelli to build a temporary apartment inside the garage while they finish building their home. Documents show Leinwand and Cicarelli must remove the temporary kitchen in the garage once town code enforcement issues them a certificate of occupancy for the house. 

Braymer argued that the APA is allowing construction of two principle buildings, a direct violation of the original permit. Braymer said APA staff apparently approved the violation because it was temporary. “Temporary violations are still violations,” she wrote, calling the APA’s actions arbitrary and capricious.

Braymer and her clients also argued that APA staff did not conduct a study of the subdivision’s wetlands as required in the Adirondack Park Agency Act. Staff also did not get approval from other subdivision homeowners to amend the 1988 subdivision permit. Braymer has requested APA produce documents related to its site visits.

In one of the new depositions Braymer filed, longtime engineer Thomas LaBombard said the APA has always been strict with the 200-foot setback requirement for septic systems and called the agency’s latest decision “improper selective permitting.” Phillips has motioned to have this deposition, along with others, removed from the court record.

A contingent of environmental organizations in the Adirondack Park including the Adirondack Council, Adirondack Wild: Friends of the Forest Preserve, Protect the Adirondacks and the Upper Saranac Foundation wrote Gov. Kathy Hochul’s office on Aug. 25 with concerns about the APA’s actions in this case. The groups said the APA segmented the permit amendment and development approvals, which allowed it to circumvent a more thorough environmental review. 

“The culmination of these errors in process, review and information resulted in a permit decision and amendment that is not in the interest of a sensitive and unique Adirondack Park wetland environment, detrimental to the highly sensitive shallow north basin of the Upper Saranac Lake and a decision that is not supported under current legal precedent for permit amendments of individual property within a subdivision permit,” the letter said.

But APA staff feel their decisions were warranted, court depositions show. For one, the 1988 permit had Leinwand and Cicarelli’s lot share a common sewage area with Howard Kern and Suzanne Carrillo Kern’s lot. Should the APA have not amended the permit to allow Leinwand and Cicarelli to build their own septic system, they would have had to pump their waste 1,000 feet across a right-of-way, across the Kerns’ and other neighbors’ properties to the common sewage area. 

Alicia Purzycki, a professional engineer for the APA, said in her affidavit that APA guidelines note waste should not be pumped more than 250 feet and that pipes should not cross wetlands, waterbodies, rights-of-way or property lines.

“These guidelines are intended to limit the length of piping that could fail, to limit the amount of time before ruptures are noticed and ensure that landowners have access to and control over piping for maintenance and repair, and to avoid ecologically sensitive areas in the event of a failure,” Purzycki wrote. She added that the design approved for Leinwand and Cicarelli’s lot “would provide better treatment and be more protective of groundwater, surface water, and wetlands,” than what was suggested in the old permit.

Phillips wrote in opposition filings that “most rational landowners do not want someone else’s septic effluent to visit their property either temporarily or permanently.” In a deposition, Leinwand said the septic system location argument “makes no sense except possibly as an attempt by Kern and Haidinger to keep us out of the neighborhood.”

Howard Kern, in a responding affidavit, said he knew that the new owners of the lot would need to pump their sewage across his property.

“We have no problem with that situation because it will better protect the sensitive wetlands all around Lot 9, and ultimately services to better protect Upper Saranac Lake,” Kern wrote.

Joshua Tallent, an attorney with the State Attorney General’s Office, wrote the APA can make amendments and nothing in the 1988 permit required the APA to get consent of other homeowners in the subdivision.

In opposition papers filed with the court, Phillips called the lawsuit a “desperate attempt” to keep neighbors from building on the last vacant lot of the subdivision. He highlighted a deposition from Howard Kern, who wrote that the development would increase noise, light and activity in the area. The Kerns have also noted in their written testimony the many times they walk across the vacant lot to various trails and how they wish to continue walking that property.

“Objectively speaking, the location of an underground septic system that makes no noise has nothing to do with Mr. Kern’s parade of horribles,” Phillips wrote. 

In a counterclaim filed with the court, Leinwand and Cicarelli add that there is no language in their property’s deed “that would burden their property with unknown adjoining owners and strangers randomly walking around.”