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May/June 2007
Volume I; Issue 2
Special Report:
Conservation Easements

Principle, Perseverance & Persecution:
The Tim Jones Saga

By David Howard

The Adirondack State Park is situated in the north country of upstate New York, comprised of over six million acres, approximately half of which is privately owned property. The area is ruled by the iron hand of the Adirondack Park Agency (APA), a regional government entity long held in contempt by the majority of its year-round citizens. This adversarial relationship dates back to the introduction of the APA Act in the early 1970s. The legislation was hotly contested by the 100,000 residents in each of the area’s 92 towns; however, over the objections of a substantial majority of the landowners, the Act was approved at a late-night vote of the New York State legislature just prior to the Christmas break in 1972. The representatives of the millions of residents in New York City, Long Island, Buffalo, and other areas outside the park had spoken, and the Blue Line was sealed. The law they passed would haunt the inhabitants of this magnificent area for generations to come.

The “park” had been formed in the latter 1800s in response to extensive logging of thousands of acres of timberland—lumber that was used to build the growing empire state. The legislature later passed an amendment to the state constitution commanding that the land be deemed forever wild, a political knee jerk reaction that would slowly strangle the economic security and individual freedoms of thousands of hard working citizens. Partly as a result of widespread and vocal opposition within the park, there were a few bones thrown to Adirondackers to ease the pain. The first was the creation of the Local Government Review Board (LGRB), designed to be a watchdog group to keep the APA in check. The concept sounded good until you realized that there was no funding mechanism to staff the board at the time; that has since changed.

Today, the LGRB is funded at $50,000, whereas the APA budget is $6.2 million. A second major concession allowed any existing lot or subdivision to be grandfathered, and as such was not subject to APA jurisdiction, providing that it was legally configured prior to 1973. It is with this backdrop that our story begins.

From 1973 until 1990, there were sporadic skirmishes between the APA and the citizens of the park. Although local and contentious, most actions were isolated and few in number. That would change as the 1990s approached. The administration of Governor Mario Cuomo would raise the ante with the submission of the 21st Century plan to “save” the Adirondacks. The plan recommended 2,000-acre zoning, removal of “eyesore” structures (later determined to be anything man-made within 500 feet of any road), as well as 243 other draconian measures. The Adirondacks exploded, selective enforcement and harassment exponentially increased, and good, hardworking men and women found themselves in the crosshairs of a regulatory machine that began to dissemble the historic culture of Adirondack communities.

Tim Jones was 20 years old in 1978, when he bought a lot on River Road in Tupper Lake, NY, along the banks of the Raquette River. The river and that road played a major role in Tim’s life. His great-grandfather had lived there, as did his grandfather and parents, and Tim learned to fish, as well as to respect and enjoy the river at his father’s feet. His dream had come true; he was coming home.

At first, it was only for vacations, but only until he could afford to build. His family stayed in a small travel trailer on weekends and longer vacations during the summer. He started to teach his two young sons the ways of the river, as his father and grandfather and great-grandfather did before him. Time passed and finances improved; in 1991 he was ready to start building a permanent camp, modest by most standards at 18 by 24 feet in size, which included a wide, building-long porch on the river side. Tim went to the town offices, submitted the plans and walked out with a building permit, anxious to get started on his dream.

The following is taken from Tim’s Journals of the actions and disappointments of an honorable father and law-abiding citizen, who in his own words, “Only wanted to give to my sons the experiences I had as a child, and to just be left alone.”

1991 Fall: Tim applies for and receives a building permit for his camp from the Town without incident. Foundation piers were set.
1992 April: Construction begins.
1992 April 21: Ed Talbot of the APA stops at the site as Tim and his neighbor are building, Talbot demands that they stop. Tim informs him that he has a permit and that the site is not under the jurisdiction of the park agency, because of its status as a pre-existing lot in an approved subdivision (subdivision was noted and filed in the 1950s and recognized by the town). Tim refuses to stop. Later that day Talbot returns with a court ordered Cease and Desist Order.
It should be noted that the road Tim’s lot was situated on was fully developed at the time. We are not talking about pristine wilderness or even a priceless wetland. The lot is less than an acre in size and is bounded on both sides by year-round homes three to four times the size of Tim’s cabin. His was one of the last small open lots on the road; both of his immediate neighbors’ lots on the river were issued non-jurisdictional letters, had filled in wetlands to build, and were considerably closer to the river’s edge.
1992 Early June: APA files action in State Supreme Court against Tim.
1992 June 3rd week: Engaged a local man (Howard Aubin) with extensive APA law experience (although not an attorney) to represent him. He discovered that Tim was deprived of due process, as there had been no APA administrative hearing, something that could have been accomplished in May or June prior to the court action.
1992 July: Appeared in Court before Judge Ryan.
1993 January 7: First ruling made against Tim. However judge rules, he must either apply for a permit (which he did not need) or go through the enforcement process. He opted for the enforcement process, confident that once all the information was on the table that he would be found to be within the law.
1993 March: APA attorney informs him that the agency is creating a “new guideline” that prohibits non-lawyers from acting as authorized representatives.
1993 March to January 1995: Discussions centered around Mr. Aubin’s ability to represent Tim; it became increasingly apparent that his familiarity and expertise with the APA law was causing them angst.
1993 September: Written communication to the agency from Tim to sit down and discuss the matter on the record (No response).
1994 November: Served with a contempt of court citation, Tim’s cross moved for contempt against the agency.
1995 April: Court ruled no contempt on Tim’s part and ordered the agency to schedule a hearing.
1995 June: After having to remind the agency of the Judge’s ruling to schedule a hearing, the agency insisted on an informal hearing Tim demanded a formal (recorded) hearing.
1995 July, August, September: Tim’s representative personally appears at the agency meetings stating that they were compelled to schedule a hearing to no avail. Agency then creates an MOU with the state Department of Environmental Conservation (DEC) and changes the enforcement process without following the procedures demanded by state law.
1995 Late Sept: Agency is informed that if they don’t respond, another contempt complaint against the APA will be filed.
1995 November: Hearing agency still did not recognize Mr. Aubin as an “authorized rep” even though there is no statute or regulation against it; thus, he was refused the proper documents. Only the notice of apparent violation was sent to Tim. Not having access to all of the documents hindered defense.
1995 December: Conference between the parties. The APA was provided a transcript of the aforementioned hearing, Tim was not.
1996 May: APA talks of settlement, Tim refuses to plead guilty because no crime was committed. Stands on principle.
1996 June: Enforcement Committee decides against Tim. Issues no finding of fact. Entered an appeal to be heard before the entire agency board.
1996 September: Final Determination against Tim.
1996 November: Filed appeal in Clinton County Supreme Court (State Attorney General’s Office doesn’t even show up or file for adjournment), filed motion to dismiss (not granted, the judge stated that he would give the State another chance).
1997 January: Judge Ryan decides not to rule and sends the case to Franklin Supreme Court.
1997 March: Judge Demarest hears case in Franklin County indicates that his decision would be rendered in 60 days.
1998 March: Judge Demarest decides not to rule and transferred the case to the Appellate Division in Albany and supposedly splits the case into two parts (which would make it almost impossible to take the case to the federal level, however, the final decision makes no mention of a case split).
2000 March: Appellate Division refused to recognize arguments, and did not even address Judge Demarest’s concerns in his decision concerning APA’s ex-parte communications and the APA attorney’s dual capacity of being both administrator and prosecutor at APA hearings. Filed appeal.
2000 April: Adirondack Council’s character assassination e-mail circulated on the internet [see below]. The Adirondack Council is an environmental non-profit advocacy group which generally supports APA actions and lobbies for even stricter controls within the park, the majority of the group’s members are not residents of the Adirondacks.
2000 June: Denied leave to appeal.
2005: Final Decision and permanent injunction issued.

This case shows the desperation of a governmental agency, which by constitutional definition exists to serve the citizenry, but finds its satisfaction in the destruction of due process and the subjugation of individual rights. An enlightening bit of information was gleaned in a discussion between a radio talk show host and the agency’s attorney, when she noted that the case would never have proceeded as it had if Tim had not gone to the media.

The first salvo was their attempt to force him to get a permit when none was needed under APA rules, because the subdivision that Tim’s lot was a part of was created prior to the APA Act and as such was non-jurisdictional. (The certified maps of the subdivision later mysteriously disappeared from the APA file.) The agency later admitted, during hearings on the case, that the subdivision was indeed legal.

The second try was to accuse him of having a septic system in a wetland. Not only was there no septic system ever planned or installed, the whole lot was less than an acre and even if the entire lot was a wetland (which it was not), the agency has no jurisdiction over wetlands less than one acre. In addition, septic permits are not under state control; they are the responsibility of the local town government. When that line failed, they accused that his lot had “free interchange with the river,” even though his lot was the same elevation in relation to the river as all of the other lots on either side.

The final judge’s decision agreed that Tim’s neighbors may indeed have been issued non-jurisdictional decisions but they were issued in error, and in regards to Tim’s case, the agency was not compelled to compound the error by giving one to Mr. Jones. Currently, under the last order handed down by the court, Tim can never use the lot or camp. He is however compelled to pay the taxes on it. His only other option would be to not pay the taxes and forfeit the land to the state.

Tim Jones is one of those special people who sets an example for all of us. There were times when some agency personnel would have liked to get out of the mess they created, but it would have required Tim to plead guilty to a “crime” he never committed. His only transgression was to stand up for his rights, and refuse to bend his knee to those who wanted to crush him, simply because he took his story to the press. Today he has fought this battle for 15 years and as much as it has cost him, a marriage, a fortune in legal bills, too many sleepless nights and the erosion of his health, he perseveres.

Tim’s sons are now grown men, living over half their lives under the threats and slander generated by the environmental and regulatory community. They remain proud of the man who would stand and fight rather than give in and be comfortable. Tim remarried a number of years ago and no longer lives inside the Blue Line, but he and his wife Liz refuse to quit. They are currently attempting to bring this case to the federal courts, hopeful that a higher court uninfluenced by New York State politics will vindicate Tim’s 15-year trail of tears. In the words of Winston Churchill “Never, never, never give in.”

“It doesn’t require expropriation or confiscation of private property or business to impose socialism on a people. What does it mean whether you hold the deed or the title to your business or property if the government holds the power of life and death over that business or property? Such machinery already exists. The government can find some charge to bring against any concern it chooses to prosecute. Every businessman has his own tale of harassment. Somewhere a perversion has taken place. Our natural, inalienable rights are now considered to be a dispensation of government, and freedom has never been so fragile, so close to slipping from our grasp as it is at this moment.” —Ronald Reagan

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