The opinion of the court was delivered by: William K. Sessions III*fn11 United States District Court
Plaintiffs Arthur and Margaret Spiegel allege that the Adirondack Park Agency ("Agency"), its executive director, acting executive director and enforcement officer have engaged in selective enforcement with regard to Agency Permit No. 87-28, which imposes restrictions and conditions on lots in the Fawn Ridge subdivision in the town of North Elba ("Town"), near Lake Placid, New York. In a Final Enforcement Order of September 7, 2005, the Agency determined that the Spiegels' partially-constructed home on Lot 39 of the subdivision violated three provisions of the Permit: a restriction on height, a requirement that homes located on ridge line lots be set back at least twenty feet from an abrupt change in slope, and restrictions on removal of successional tree growth. Before the Court are the parties' cross-motions for summary judgment. For the reasons that follow, the Spiegels' motion (Doc. 88) is denied, and the Agency's motion (Doc. 85) is granted.
The following facts are undisputed, except where noted. In the mid-1980s Lakewood Properties, Inc. ("Lakewood") commenced a project to develop 54 residential lots on 264.4 acres of land on the edge of the village of Lake Placid, New York. The area previously contained ski trails and temporary housing for the 1980 Olympics. The subdivision is known as "Fawn Ridge." Fawn Ridge is located within 1000 feet of an intensely developed commercial strip on New York State Route 86 to the north, and 500 feet west of Lake Placid and its densely populated center area. The residential lots are in an area of the Adirondack Park Land Use and Development Plan designated "moderate intensity use." Land uses in the vicinity of the project include residences and commercial uses. On April 22, 1988 the Agency issued Permit No. 87-28 to Lakewood, granting conditional approval to the project.
The Permit includes findings that slopes on the project site vary from zero to 65%, with nearly half the lots containing slopes from 15 to 25%, but all lots having sites with slopes of less than 15%, suitable for a homesite and driveway. Several lots would be readily visible from adjoining residential and commercial establishments, given that portions of the treed slopes of the hillside had been partially cut for a long time. Lots 39 and 40 were principally or entirely open field at the time, and dwellings on other lots might also be visible if their height were to exceed the tree canopy. The findings stated that conditions were necessary to ensure that visual impacts of the project would be minimized. Finding 17 noted "[t]opography, restriction of building height to a maximum of 30 ft., use of warm earth colors on structures, control of clearance of vegetation, retention of front, side and backyard vegetation, and eventual higher growth of existing trees will aid in screening the visibility of the project." (Permit No. 87-28 at 11, Privitera Aff. Ex. Z (Doc. 88-49).)
The Permit contains 21 conditions. It states that failure to comply with either the findings of fact or conditions voids the permit. (Condition 2, Permit at 13.) It states that Lakewood must notify all prospective lot purchasers of the permit conditions, and provide the permit to the supervising engineer and contractors and ensure compliance with the permit conditions. (Condition 5, Permit at 14.) Before construction Lakewood must provide the Agency with documentation and get written confirmation of a deed restriction of a thirty foot building height limitation, measured from the highest point of the structure (excluding fireplace chimney) and the lowest point of either existing or finished grade adjacent to the structure. (Condition 7(a), Permit at 15.) Development on individual residential lots must comply with the following: not more than 5,000 square feet of existing tree vegetation cleared; no more than half of all trees four inches or more at breast height cut for a distance of fifty feet downslope from each structure; no clearings for views greater than twenty feet wide; no more than half of all trees six inches or more in diameter cut on any lot; no structure higher than thirty feet; no dwellings constructed on existing slopes greater than 25% measured over fifty feet horizontal distance; successional tree growth allowed to occur; dwellings for ridge line lots 39-41 and 50-54 located at least twenty feet back from the abrupt change in slope at the top of the hill. (Condition 15(b)-(d), (g)-(j), Permit at 18-19.) The permit does not define further the "abrupt change in slope."
The Permit conditions are binding on Lakewood and its successors. The Nettie Marie Jones Trust ("Trust") succeeded Lakewood as the project sponsor. Both Lakewood and the Trust however conveyed deeds to lots in Fawn Ridge that did not contain the thirty foot building height restriction that the Permit required. The Agency has not taken action against Lakewood or the Trust for violating the conditions of the Permit.
Lakewood created the Fawn Ridge Architectural Review
Committee ("Committee") to review lot plans and designs for the subdivision. The Spiegels' deed for Lot 39 states that no building shall be constructed unless complete and adequate plans are approved by the Committee. There is no evidence that the Agency delegated authority to the Committee to enforce Permit compliance, however.
To facilitate the Committee's review of lot development, project leader Ivan Zdrahal created Lot Development Control Notes as a guide for landowners. The Control Notes remind lot owners that they are required to obtain Committee approval for their site and building plans prior to construction. The Control Notes also advise prospective purchasers that "[l]ot development shall comply with the established deed restrictions, approved plans and conditions in the Adirondack Park Agency Permit." (Lot Development Control Notes at 2, Privitera Aff. Ex. EE (Doc. 88-54).) Arthur Spiegel served on the Committee from approximately 2001 to 2004.
In 1992 the Spiegels acquired Lot 38 in Fawn Ridge and built a house. The deed to the lot contained a thirty foot building height restriction.*fn1 In 1994 the Spiegels acquired Lot 39, a premier lot in the subdivision. The deed to Lot 39 contained a thirty-five foot height limitation rather than the thirty foot restriction required by the Agency Permit. Lot 39 was historically a ski slope, a wide open field of grass, small brush and blueberry bushes. In the late 1980's, about the time the Permit issued, Lot 39 contained open views of Lake Placid and Whiteface Mountain. The Permit expressly recognized the open character of the lot.
In 1999 the Spiegels hired a construction company to grade and seed a 50 by 100 square foot area of the lot, about thirty feet from the road. At that time the area was an overgrown field, with brush and scattered small trees, one to four inches in diameter. Some small trees were removed.
In 2002 the Spiegels began the process of seeking approval from the Committee for a house on Lot 39. The Spiegels obtained approval for their design plans from the Committee in June 2004. The Town also approved the plans.
Sometime before construction began, Arthur Spiegel showed the plans to Eugene Byrne, his neighbor across the street, whose view would be impeded by construction on Lot 39. The Byrnes complained to the Agency that the design plans for the house on Lot 39 appeared to violate applicable land use regulations. The parties dispute when the Byrnes' initial complaint was made and whether the Agency took any action on their initial complaint, but agree that on September 24, 2004 Mrs. Byrne called the Agency, and an Agency staff member filled out a potential violation report and opened a file. The parties dispute whether Mrs. Byrne spoke directly with the Agency enforcement officer, Defendant Van Cott, at that time, or whether he personally opened the file.
The Agency had adopted general enforcement guidelines ("Guidelines") in January 2003. The Guidelines were not intended to be binding or to create any substantive or procedural rights. (Guidelines § VI, Privitera Aff. Ex. QQ (Doc. 88-66).) The Guidelines state the Agency objectives as, among other things, obtaining compliance with regulatory environmental requirements, and deterring additional violations by consistently requiring that properties in violation be brought into compliance. (Guidelines § III.) To that end, Agency enforcement efforts are calculated to encourage prompt, voluntary cooperation resulting in the firm, but fair resolution of violations. It is the Agency's intention to generally provide an incentive to violators who voluntarily and promptly agree to a binding obligation to achieve resolution of the violation, both with respect to remediation and the payment of any civil penalties. (Guidelines § III.)
The Guidelines set forth enforcement procedures for complaints about possible violations. (Guidelines § V.) Once a complaint is received, an Agency enforcement officer investigates, with the assistance of a staff attorney. Investigations receive priority based on "the potential for significant environmental damage and the need for prompt action."
(Guidelines § V at 4.) Staff are encouraged to resolve violations at the administrative level. (Guidelines § V at 5.) A violation that cannot be resolved at the staff level is referred to the enforcement committee. The enforcement committee makes a determination whether a violation has occurred and the appropriate disposition of the matter. (Guidelines § V at 5-6.) Where violations cannot be resolved at the administrative level, the Agency may request the Attorney General to initiate a civil action. (Guidelines § V at 6.)
The Agency also had drafted guidelines for prioritizing reported violations, although these guidelines were not adopted. The enforcement officer for a reported potential violation assigns a status ranging from Priority 1 to Priority 4, based on factors such as ongoing significant environmental damage, high profile cases, cases where delay may cause significant legal or economic difficulties, and the length of time a case has been open.
Van Cott has testified that he believed, based on his review of the complaint, that the violation was a minor violation of the height restriction, and that he drafted and sent a letter to Arthur Spiegel informing him of the potential Permit violation, with a copy to the Town's Code Enforcement officer. Arthur Spiegel avers that he did not receive the letter. The Town Code Enforcement officer has no record or recollection of having received a copy of the letter. Van Cott then closed the file.
Mrs. Byrne called the Agency several more times. In early 2005, the Byrnes hired counsel to assist them in inducing the Agency to act on their complaint. On February 3, 2005, after hearing from the Byrnes' counsel, Van Cott reopened the file and assigned an enforcement investigator. When Van Cott reopened the Spiegel case, he designated it Priority 2, as a case "where continued delay may create significant legal problems or economic hardship for the landowner." (Draft Enforcement Priority Guidelines, Privitera Aff. Ex. RR (Doc. 88-67).)
On February 4, 2005 the Byrnes' counsel followed up his phone call with a letter stating the Byrnes' belief that there may be violations of the Permit's height, slope and setback restrictions, and that fill may have been used to raise the height of the lot. Van Cott spoke with Arthur Spiegel about the potential violations of the Permit, and asked him to stop construction*fn2 pending the Agency's investigation. Spiegel agreed.
Van Cott and the Spiegels had neither met nor spoken to each other before the February telephone call. The Spiegels believe, however, that Van Cott, as an active member of the Democratic Party in Essex County, New York, must have heard of Arthur Spiegel, a public figure in the Lake Placid area with ties to the Republican party. Arthur Spiegel feels that he has been singled out for violation of the Permit, and suspects that Van Cott is motivated by political animus.
The Agency conducted several site inspections, and determined that the house was well over thirty feet in height. An Agency engineer calculated the height of the house at 43.7 feet, and added eight feet to the measurement to account for fill.*fn3 By the Spiegels' own calculations the house stands 44.5 feet high. The Agency engineer also determined that the house was not set back twenty feet or more from the abrupt change in slope. APA staff also concluded that the Spiegels had removed successional tree growth, and that the Spiegels' house was the most visible of any dwelling in Fawn Ridge from Route 86 or Lake Placid.
On March 22, 2005 the owner of Lot 54 also complained about ongoing construction on the Spiegel house in apparent violation of the height restriction. On March 30, 2005 the Agency issued a Cease and Desist Order prohibiting the Spiegels from continuing construction. The Agency states this is because the Spiegels had proceeded to construct a porch in violation of ...