BLACK BROOK - A developer accused of disturbing wetlands is asking Adirondack Park Agency enforcement actions against him to be thrown out, claiming the agency is working behind the scenes with environmental interest groups.
Leroy Douglas, owner of a resort along the shoreline of Silver Lake, said environmental groups bent on acquiring his land have been working in collusion with the APA to delay his plans for development.
"These people are intentionally trying to cost me money," said Douglas. "They feel that if they can stagnate the sale of my property for four or five years they can break me."
The APA issued Douglas a non-jurisdictional letter for his subdivision of seven lakefront lots in 2006, but began an enforcement file against him for repairing a road near his property that passes through a wetland area.
A hearing on the matter led to a settlement, but the agency decided to re-open enforcement in March 2007, claiming he failed to follow through with his promise to narrow the road. Douglas asked the agency to reconsider, but an April 2008 enforcement meeting denied his request.
Nearly a year and a half later, Douglas and his attorney, Matt Norfolk of the Lake Placid have asked DEC Administrative Law Judge Molly T. McBride to vacate the ruling from that meeting, claiming the APA communicated illegally with private citizens.
Norfolk filed the motion Sept. 28 after reviewing documents he received from APA enforcement program supervisor Paul Van Cott this summer that deal with Douglas's case.
"It appears that [the] APA is acting in concert with private citizens and environmental interest groups, under the color of law, to strategize and plot against Mr. Douglas and his family business for no legitimate purpose and to stop lawful development," wrote Norfolk in the motion.
Included among the documents is a letter from the Adirondack Council to APA Enforcement Committee Chairman Cecil Wray that they say constitutes illegal ex parte communication.
The ex parte rule, in summary, says state agency members involved in a hearing cannot communicate with any person about the hearing without providing an opportunity for all parties involved to participate; such as providing copies of their written correspondence.
The letter, signed by Adirondack Council legislative director Scott Lorey, specifically names Douglas as a developer "most in need of deterrence" and urges the APA to "carefully investigate his developments and take decisive action against all infractions of the APA Act and Freshwater Wetlands Act."
The letter is dated April 7, 2008, just days before the APA enforcement committee rejected Douglas's application to have a prior APA enforcement proceeding against him thrown out.
Norfolk also cites a series of e-mails to APA staff that speak specifically about Douglas's enforcement matter and directs Van Cott to take specific action in order to find Douglas in violation.
"I am prepared to support whatever you can do here with my own legal team to back you up and help with research and other tasks," one of the e-mails states. "Please deal with this with all the force that the APA has in its arsenal."
The sender's identity in each of the four e-mails is blacked out with marker, but Norfolk said they came from Adirondack Council Chairman Brian Ruder, whom Douglas said also owns land along Silver Lake.
Norfolk also points to e-mails and faxes written by APA staff that he says indicates the agency shared information about Douglas's enforcement with a private citizen, also believed to be Ruder, in some cases prior to sharing it with Douglas's attorney.
"It creates the appearance of impropriety," Norfolk said. "and to have [Ruder] involved in the prosecution and enforcement of another individual is wrong."
But the APA responded Sept. 29, denying any impropriety or conspiracy to hinder Douglas's plans for development.
"To the contrary, the Agency has attempted to assist Mr. Douglas in his effort to lawfully subdivide his land," said APA public relations staffer Mary Palmer. "Agency staff identified wetlands on his property for him, allowing to design a subdivision that would not require an Agency permit."
As for the Adirondack Council letter, Van Cott said it had no significant influence because it was never delivered to Wray and not included among the documents he and other APA staff reviewed at the April 10 enforcement hearing.
"I did not provide the letter to Commissioner Wray or to the Agency because it would not have been an appropriate part of the record before the agency," said Van Cott. "Rather, I considered the letter to be... deserving no more or less consideration by Agency staff than any other complaint received in any enforcement matter."
Van Cott said the ex parte rule would not apply to the e-mails Norfolk mentioned because they were sent prior to commencement of the enforcement action.
"They were typical of communications that Agency staff have in the normal course of business with complainants and potential witnesses who are interested in the outcome of an agency enforcement action," he stated.
The names of the private citizens were redacted, Van Cott said, because of an agreement with Douglas's former attorney. Staff sought to protect their identities because, he said, Douglas has a track record of violent threats.
"Agency staff, by necessity, must have the ability to communicate freely with complainants and potential witnesses during the enforcement process," Van Cott argued.
John Sheehan, spokesman for the Adirondack Council agreed.
"Communication with the Adirondack Park Agency was one of the reasons the Adirondack Council was formed," he said, noting it's the right of private citizens to petition their government.
Sheehan said Adirondack Council regularly offers to assist the APA with investigating alleged violators, showing them legal research that supports the organization's positions on land-use issues.
Still, Douglas is convinced his troubles originate with his unwillingness to sell his land to the Adirondack Land Trust, and that organizations like Adirondack Council are using the APA as a way to twist his arm.
"That's what these people are trying to do to the whole Adirondacks," said Douglas. They're going to drive all the local people off these lakes, and what's going to stop them? They're trying to make it a rich man's playground."
No decision in regard to Norfolk's motion had yet been issued by Judge McBride at the time of this report.