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6 ELR 20690 | Environmental Law Reporter | copyright © 1976 | All rights reserved Wambat Realty Corp. v. Adirondack Park Agency(N.Y. Sup. Ct. July 28, 1976)The court denies most of the plaintiffs' motion for summary judgment that the Adirondack Park Agency Act is unconstitutional per se and as applied as a taking without just compensation, but strikes down as an impermissible exercise of the police power a provision allowing local governments to zone land more restrictively than has the state. Plaintiff Town of Black Brook lacks standing to challenge the substantive constitutionality of state law affecting its governmental powers. Similarly, the court dismisses plaintiff Wambat's allegation that the Act is unconstitutional as applied to all private property within the Adirondack Park, since plaintiff cannot vindicate the constitutional rights of other owners. The court holds unconstitutional as an unreasonable grant of the state's police power the Act's provision allowing local restrictions to the stricter than those imposed by the state's "overall intensity guidelines" by prohibiting certain uses. This provision grants to local governments an unlimited zoning power that the state does not itself possess. Pretrial discovery is allowed to commence to ascertain fact questions about the Act's unconstitutionality as applied to Wambat's land. The Act does not illegally "spot" zone, since the state need not zone with a comprehensive plan. Whether the Act denies plaintiffs the equal protection of the law must be pursued at trial to determine whether the state could use less restrictive alternatives to achieve the Act's objectives. Similarly, whether the Act inhibits the constitutionally protected right of travel must be investigated at trial to determine whether the Act interferes with primary housing needs in the locality. Counsel for Plaintiff Wambat Realty Counsel for Plaintiff Town of Black Brook Counsel for Defendant Counsel for Defendant-Intervenor Association for the Protection of the Adirondacks, Inc. Counsel for Intervenor Hawkeye Property Owners Association Soden, J.: Plaintiffs seek a declaratory judgment that the "Adirondack Park Agency Act" (see Executive Law, Art. 27, §§ 800-819; hereinafter "Act" or "Plan and Map") is unconstitutional. Plaintiffs, Wambat Realty Corp. and Town of Black Brook, moved for ummary judgment on December 18, 1975. On the return date, January 6, 1976, at Special Term, Supreme Court, Clinton County, Honorable Justice Norman L. Harvey referred the motion to this court (CPLR Rule 2217). The parties presented their oral arguments on February 27, 1976 and completed their submissions on March 16, 1976. This court holds thatportions of the Act § 807, concerning the permissible measures to be included in a "local land use program," are patently unreasonable exercises of the state's police power. Significant questions of fact are present concerning all other claims of plaintiffs, and a trial is required. On or about August 20, 1974, plaintiff Wambat acquired approximately 2,224 acres of land from Hammond Group, Inc. Wambat's lands ("Valmont Village") include an extensive shoreline on Silver Lake and substantial acreage in the Silver Lake Mountains. The lands are entirely within the Town of Blak Brook, Clinton County and the "Adirondack Park" (Act § 802-1). The lands are therefore subject to (1) the "zoning" of the official Adirondack Park Land Use and Development Plan and Map (Act § 805 and § 806); (2) the project review and amendment request jurisdiction of the defendant Adirondack Park Agency (Act §§ 809-811, 805). As alleged, Wambat's lands are "zoned": (a) 1,817 acres more or less designated Resource Management — Green (should not exceed approximately fifteen principal buildings per square mile or one principal building per each 42.7 acres) (b) 227 acres more or less designated Rural — Yellow (should not exceed approximately seventy-five principal buildings per square mile or one principal building per each 8.5 acres), (c) 180 acres more or less designated low intensity — Orange (should not exceed approximately two hundred principal buildings per square mile or one principal building per each 3.2 acres). Wambat further alleges that the above "zoning" would allow it to develop lots for approximately 125 "principal buildings" (see Act, §§ 802-50). Defendant Adirondack Park Agency (hereinafter APA) disputes the above allegations and alleges: "that the number of acres in Valmont Village tract is 2,250 of which 1,660 constitute lands classified resource management for a total of 39 principal buildings, 325 of which is classified rural use, allowing 38 principal buildings, 265 of which is low intensity use, allowing 83 principal buildings, for a total of 160 principal buildings permitted on the tract." (Affidavit of Richard J. McClimans, APA Soil & Water Engineering Specialist, sworn to Feb. 6, 1976, p. 14, P26). On September 19, 1974, Wambat filed with the Agency an application for a project permit and an amendment request (Act § 805-2.-c. thru e.). The "request" prays for the following amended zoning for Valmont Village: (a) 1,526 acres more or less designated Resource Management — Green (should not exceed approximately fifteen principal buildings per square mile or one principal building per each 42.7 acres). (b) 557 acres more or less designated Moderate Intensity — Red (should not exceed approximately five hundred principal buildings per square mile or one principal building per each 1.3 acres). (c) 141 acres more or less designated Hamlet — Brown (no overall guideline intensity of development made applicable). With this zoning, plaintiff plans to develop approximately 851 lots and/or units for sale to the public. On September 26, 1974, plaintiff Town filed an identical amendment request with the APA. On March 20, 1975, plaintiffs served defendant APA with an order to show cause and petition. Plaintiff sought, in causes of action labeled 1 and 2, review (pursuant to CPLR, Art. 78) of an evidentiary ruling of the hearing officer made at the "amendment request" hearing on January 28, 1975. The remaining causes of action, labeled 3 thru 7, prayed for a declaratory judgment declaring the Act unconstitutional on several grounds. Defendants moved for an order dismissing the petition. By decision, dated July 31, 1975, and order entered October 24, 1975, this court dismissed the first and second causes of action and held that the third thru seventh causes of action stated an action for declaratory judgment. On October 27, 1975, this court granted leave to intervene to the Hawkeye Property Owners Association (Hawkeye), a New York not-for-profit corporation representing the proprietary interests of the Neighborhood Landowners. The Association for Protection of the Adirondacks, Inc., Adirondack Mountain Club, Inc. and Sierra Club Atlantic Chapter were also granted intervenor status (see CPLR §§ 1012, 1013). Those three organizations are referred to as "Sive Group." They are represented by Winer, Neuberger & Sive of New York City. All defendants interposed answers in early November, 1975. On December 4, 1975, plaintiff Wambat moved for a protective order (CPLR § 3103(a)) after the Sive group served a notice to take deposition upon oral examination (CPLR Rule 3107), dated November 28, 1975. That motion is also before the court. The Adirondack Park Agency Act has been described as "an extraordinarily detailed and complex statute." (See Savage and Sierchio, The Adirondack Park Agency Act: A Regional Land Use Plan Confronts "The Taking Issue," 40 Albany Law Review 447, 454). The following is a "capsule" summary, and the reader is referred to the Act itself and the following the analytical summaries of the Act: Booth, The Adirondack Park Agency Act: A Challenge in Regional Land Use Planning, 43 Geo. Washington Law Review 612 (1975) and Davis, Land Use Controls and Environmental Protection in the Adirondacks, 47 N.Y. State Bar Journal 189 (1975). The Plan and Map divide all land within the Adirondack Park into six land use areas (Act 805-3.): hamlet, moderate intensity, low intensity, rural use, resource management, and industrial use areas. Each "land use area" has its own statutory: 1. character description; 2. purposes, policies and objectives; 3. guidelines for overall intensity of development and 4. classification of compatible uses (either primary or secondary — see Act § 805-3.a). There is an entire section (Act 806) devoted to "shoreline restrictions." No "use" is prohibited in any land use area but is presumed "incompatible" if not listed in the situs land use area's classification of compatible uses (see Act § 809-10.-b. concerning this presumption). A "land use or development," "use" or "subdivision" (Act § 802-28., 63.) must be reviewed and approved by the Agency (see Act § 809) if it is defined as a Class A or Class B regional project for the situs land use area(s) (see Act § 810). The Agency also reviews and approves local land use programs (see Act § 807). Such program must meet all the criteria listed in Act § 807-2. However, the Agency retains review of Class A regional projects. The Act contains several traditional zoning "safety valves" including: allowance for non-conforming and pre-existing [6 ELR 20692] uses andsubdivisions, variance provisions, provisions for non-legislative amendments and exemptions for gifts, devises and inheritances (see Act § 811, 805-2.-c. thru e., 809-11, 806-3). The Agency is also charged with the enforcement of the Act (Act § 813). There is legislation approved by the legislature and pending before the Governor to decriminalize violations and substitute purely civil sanctions for violations of the Act. The "breakdown" of all privately owned lands within the Adirondack Park into each "land use area" is as follows:
In the third and fourth causes of action plaintiffs state three claims: (1) The Act is unconstitutional on its face (P42). (2) The Act is unconstitutional as applied to Wambat's land (P45). (3) The Act is unconstitutional as applied to all privately owned property within the Adirondack Park (P46). The legal basis of these three claims is that the Act constitutes a "taking" (see N.Y. Const., Art. I, § 7; U.S. Const. V Amendment). The fifth cause of action alleges (P50) that the imposition of the plan and map onto land only within the "Blue Line" (see Environmental Conservation Law § 9-0101) constitutes an illegal "spot zoning" and denies "the citizens of the State of New York who reside within that area and the private owners of property within said area, including petitioner Wambat, the equal protection of the laws of the state as guaranteed under the Fourteenth Amendment to the United States Constitution, Art. I, Sec. 11 of the New York State Constitution." The sixth cause of action alleges (P53) that the plan and map constitute a public use on private lands within the "Blue Line" and are a public taking for public use and public control without just compensation. The seventh cause of action alleges (P57) that the Act is illegal "exclusionary zoning" ("the use and developmental restrictions of the Act unreasonably and unlawfully restrict the growth and movement of the population within the Blue Line as well as the growth and movement into said area of the population of New York or the United States in violation of a citizen's constitutional right to enter and live in any State or municipality of the United States"). All defendants specifically deny the above noted paragraphs of the original petition, now complaint. Defendant APA asserts as a separate and complete affirmative defense to the third through seventh causes of action that the Act "constitutes a valid exercise of the sovereign police power of the State of New York within the framework of the Constitution of the State of New York and the Constitution of the United States." The Sive group asserts the affirmative defense that the complaint fails to state a cause of action. Plaintiff Wambat takes the position that the affidavits of its alleged experts conclusively establish that it cannot yield a reasonable return for any permitted primary or secondary use (Act, § 805-3.0; d.-(4); f.-(4)) from its land due to the stringency of the applicable overall intensity guidelines. Wambat exhibits substantial economic data for the development and marketing of a hypothetical 125 lot "grid" subdivision that includes road, driveway, and utility infrastructure and either on-site water and sewerage or central water and sewerage systems. Wambat claims that the "grid analysis" is necessary because the Act and Agency Rules and Regulations (9 NYCRR parts 580-588 provide no guidelines or standards for density of clustering of principal buildings' lots. Wambat relies on the conclusions of its expert real estate appraiser, Richard G. Sehlmeyer, which purportedly establishes maximum feasible "selling prices" for non-take frontage building lots of 3.2, 8.5 and 42.7 acres at $10,000, $14,000, and $17,000, respectively. These figures are substantially below both sets of "gross per lot sale prices" Wambat develops utilizing a "grid subdivision" concept. The "sets" utilize the "unit cost" figures of Wambat's expert (1st set) and defendant APA's experts (2nd set). The gross per lot sale prices Wambat derives for its hypothetical "grid" subdivision are: for 3.2 acre building lot, first set — $21,745 and second set — $20,247; 8.5 acre building lot, first set — $39,296 and second set — $27,194; for 42.7 acre building lot, first set — $116,579 and second set — $51,471. Defendants' positions are, in general, that Wambat's data merely raise numerous questions of fact concerning the constitutionality of the Act as applied to Wambat's lands. All defendants point out that "Wambat's supporting papers set forth no facts to establish that the only reasonable use of its property is for realty subdivision development, nor do they set forth sufficient facts to establish that a reasonable return cannot be realized under the various uses permitted by the Act" (see, e.g.: Affidavit in Opposition of Francis J. Keehan, sworn to 2/9/76, p. 4). Defendant APA specifically and in detail challenges the expert qualifications of all Wambat's affiants and sets forth (Affidavit of Richard McClimans, supra, at pp. 19 and 29) facts and figures to show that the utilization of a clauster development could yield a substantial economic return to Wambat. By several opposing affidavits, APA purports to demonstrate that the grid layout of a hypotehtical development is "the most expensive possible means of development of Wambat's land and is otherwise unsuitable for the areas involved" (Affidavit of Francis J. Keehan, supra, p. 7). Plaintiff Town exhibits the affidavit of its supervisor, Mr. James J. George. He notes that the closing of the J. & J. Rogers Company, a paper company and a former owned of Valmont Village, has reduced the town tax base, caused substantial unemployment within and out-migration from the town. He adds that the planning commission of the Town Planning Board and the Town Board tentatively approved the Wambat group's "cluster homes" proposal in April, 1974. He concludes by outlining the town's efforts to achieve comprehensive planning and zoning prior to and during the formulation of the Act (see Laws of New York, 1971, ch. 706). Both intervenors' factual arguments parallel those of the APA. The Sive group has annexed as Exhibit A verbatim reprints of the two volumes reports of the Temporary Study Commission on the future of the Adirondacks as "evidence of the comprehensive planning upon the basis of which the Legislative Acts, which plaintiffs herein now challenge are unconstitutional, were enacted." Plaintiff Wambat sets forth few additional facts supporting their other claims. Wambat does, however, exhibit in its reply to the opposing affidavits the "Private Land Resource Capability, Inventory Report I, Adirondack Park Agency, August, 1972." This report explains how the McHarg approach ("Ecological Planning") was closely followed as the Report's methodology. The thrust of Wambat's arguments are directed against the Act's intensity guidelines or area standards but it does not seven other alleged deficiencies in the Act. Wambat's memorandum of law and reply memorandums of law are a discussion of relevant case law of New York and non-New York jurisdictions from three points of view: the taking issue (causes of action 3, 4 & 6), the reasonableness of the Act as an exercise of police power (cause of action 5) and the freedom of movement question (cause of action 7). Plaintiff Wambat also contrasts the Act with Article V, Acquisition and Disposition of Land, § 5-101, 5-105 and 5-106 of the Proposed Official Draft of a Model Land Development Code dated April 15, 1975 of the American Law Institute. Wambat states, "it is most apparent that the ALI Code contemplates acquisition of and payment of consideration for all uses of private lands for the public benefit, including environmental, scenic, and recreational easements (Section 5-106)." In its final reply memorandum, Wambat asserts that the rule of Fulling applies: The basic rule which has evolved from the cases is: where the property owner will suffer significant economic injury by the application of an area standard ordinance, that standard can be justified only by a showing that the public health, safety and welfare will be served by upholding the [6 ELR 20693] application of the standard and denying the variance. (Fulling v. Palumbo, 21 N.Y.2d 30, 33, 286 N.Y.S.2d 249, 252 (1967). Defendant APA's legal arguments: 1. develop its affirmative defense — A. The objects and purposes of the Act are in the public interest and promote the welfare of all the people of the State. B. The Act provides reasonable means for accomplishment of the public purpose. 2. elaborate their specific denials of Wambat's claims; 3. attack the legal capacity of Town to maintain these causes of action; 4. claim that Wambat has no legal capacity "to claim, nor do its moving papers establish, that the act, as applied to all privately owned land . . . constitutes a taking thereof without compensation." Defendant APA moves for a judgment: 1. denying Wambat's motion for summary judgment; 2. dismissing the petition as against Two of Black Brook; 3. declaring (a) the Act is in all respects constitutional on its face and (b) the Act is constitutional as applied to Wambat's land — or, in the alternative, denying Wambat's motion for summary judgment with respect to this question (constitutionality of Act as applied to Wambat) on the ground that material issues of fact are presented. Defendant APA and Wambat agree on one point: the constitutionality of the Act on its face "is solely a question of law and is not dependent upon a particular factual situation or other matters outside of the statute itself (Letter of Francis J. Keehan, 8 Mar. 76, p. 1, citations omitted). The "Sive" group disagrees on the above point. They argue, in effect that the constitutionality of the Act on its face involves resolution of basic issues of fact: An assessment of the reasonability of the land use regulation requires weighing, and balancing, of the public benefit conferred by it as compared to the relative dimunition and value, if any, of the property subjected to the regulation. . . . The balancing process involves a two-fold factual inquiry: First, the history of the Act, the underlying rationale, studies or reports, the legislative findings, and the public benefits generated therefrom; Second, the effect of the Act upon the use and value of private property regulated by it. . . . This involves, and ultimately must require, a factual inquiry into the history of the State's acquisition of property in the Park and the technical reports and studies of the Temporary Study Commission of the Adirondacks (the "Temporary Commission") which underlie the Act. The propriety of this factual inquiry was confirmed in Arastra Limited Partnership v. City of Palo Alto, 401 F. Supp. 962, 978 (Northern Dist., Calif. 1975), a case relied upon by Wambat: "courts may . . . appraise the nature and scope of governmental behavior, the prior history, the basis upon which the legislative determination was made, and any other relevant facts in determining whether the legislation is reasonable, oppressive, or confiscatory." (Sive Group, Memorandum of Law, pg. 8, 9 & 15). Intervenor Hawkeye's legal arguments are similar to those of Sive Group on this point (facial constitutionality). Both intervenors' other legal arguments are substantially similar to those of defendant APA. The Town of Black Brook does not have "standing" (CPLR Rule 3211(a)(3)) to challenge the substantive constitutionality of general state law which is related to, or affects, its political and governmental rights and powers (see, e.g.: Board of Education, C.S.D. #1 v. Allen, 27 A.D.2d 69, 276 N.Y.S.2d 234 (3d Dept., 1966), aff'd 20 N.Y.2d 109, 281 N.Y.S.2d 799 (1967), aff'd, 392 U.S. 236 (1968); City of Buffalo v. St. Board of Equalization, 26 A.D.2d 213, 272 N.Y.S.2d 168 (3d Dept. 1966)). The complaint is dismissed as against the Town of Black Brook. Since the Town joins with Wambat in challenging the Act's substantive rather than methodological, constitutionality, the Town is not within the "exception to the general standing rule" recognized in the companion case of Town of Black Brook v. State, 49 A.D.2d 417, 418, 376 N.Y.S.2d 15, 16 (3d Dept., 11/26/75). The Town is likewise not within the further exception to the general rule recognized in Jeeter v. Ellenburg Central School Dist., 50 A.D.2d 366, 373, 377 N.Y.S.2d 685, 693 (3d Dept., 1975): The present case appears to involve subordinate governmental entities interposing arguments in a proprietary capacity to protect their own funds as opposed to an attempt to limit the incursion into their powers, said powers necessarily being subordinate to the power of the State. There is no inherent standing bar to the claims. . . . This is not to deny that the Act directly affects the tax funds of the local government (see Laws of New York, 1975, Chapter 31, § 1, and Laws of New York, 1973, Chapter 348, § 11). Wambat's third and fourth causes of action are similarly dismissed in so far as they state a cause of action that the Act is unconstitutional as applied to all privately owned land within the Adirondack Park. Wambat is not a proper party to vindicate the constitutional rights of other owners. This claim is superfluous since all parties agree that Wambat states a valid claim concerning the Act's "facial" constitutionality. Wambat's cause of action for a declaration of facial unconstitutionality clearly raises a justiciable issue. (See Golden v. Planning Bd. of Town of Ramapo, 30 N.Y.2d 359, 365-366, 334 N.Y.S.2d 138, 141-142 [2 ELR 20296] (1972)). Initial resort to administrative relief is unnecessary. Here, defendant APA has indicated (see Wambat's moving affidavit, "Exhibits," letter from G. A. Davis, dated 12/24/74) that it will oppose any "amendment" of the land use categories in which plaintiff's land is classified. Defendant APA's position on this motion indicates that any form of variance would likewise be unavailable since it contends there is no "hardship" or "significant economic injury." None of the defendants specifically urge that exhaustion of administrative remedies is a prerequisite to this cause of action. On May 4, 1976, the Court of Appeals decided Fred French Investing Company v. City of New York, 39 N.Y.2d 587 (1976). In that case, plaintiff's property was upzoned to a park district. Under the zoning amendment, only passive recreational uses were permitted in the park district and improvements were limited to structures incidental to passive recreational use. The parks were required to be open daily to the public between 6:00 A.M. and 10:00 P.M. (See Fred French, id., at 592). Plaintiff contended that the rezoning constituted a compensible taking within the meaning of constitutional limitations. The court unanimously held: Absent factors of government displacement of private ownership, occupation or management, there was no taking within the meaning of constitutional limitations (see City of Buffalo v. Clemens Company, 28 N.Y.2d 241, 255-257). There was, therefore, no right to compensation as for taking and eminent domain. Since there was no taking within the meaning of constitutional limitations, plaintiff's remedy at this stage of the litigation would be a declaration of the amendments invalidity, if that be the case. (Fred French, Id., at 595). Wambat similarly argues that there is a taking within the meaning of U.S. Constitution, V Amendment, and N.Y. Constitution, Article I, § 7. Given the holding and the more extreme fact situation in Fred French, Wambat clearly has no claim for a "taking" or "inverse condemnation." Since Fred French was decided after this motion was finally submitted and sub judice, this court holds that the failure to state a claim for deprivation of property rights without due process in the third, fourth and sixth causes of action (see U.S. Constitution, XIV Amendment § 1, N.Y. Constitution, Article I, § 6) is a mere irregularity that does not prejudice substantial rights of any of the parties in this action. As such, it shall be disregarded herein (CPLR §§ 104 and 2001). Wambat should move to amend these causes of action. What is an "unreasonable" exercise of the police power [6 ELR 20694] depends upon the relevant converging factors. Hence, the facts of each case must be evaluated in order to determine the private and social balance of convenience before the exercise of the power may be condemned as unreasonable. (See, e.g., Village of Belle Terre v. Boraas, 416 U.S. 1, 4 [4 ELR 20302]; Euclid v. Ambler Co., 272 U.S. 365, 387; Stevens v. Town of Huntington, 20 N.Y.2d 352, 355-356). It seems clear from the above excerpt that the New York Court of Appeals had adopted the "balancing test." This court holds, therefore, that there are questions of fact concerning the facial constitutionality of the Act. In addition to those relevant facts on facial constitutionality noted above by the Sive group, the court holds that there should be an opportunity to receive into evidence the "scientifically derived data supporting the legislature's findings that greater intensities of development will have an undue adverse impact upon the fragile natural resources and unique scenic quality of the Resource management" and rural use lands (see Savage and Sierchio, op cit., at p. 475). The propriety of this sort of factual inquiry is further confirmed in Stevens v. Town of Huntington, 20 N.Y.2d 352, 355-356, 283 N.Y.S.2d 16, 18 (1967); Ilasi v. Long Beach, 38 N.Y.2d 383, 388, 379 N.Y.S.2d 831, 835 (1976), and Lincoln Bldg. Associates v. Barr, 1 N.Y.2d 413, 415-416, 153 N.Y.S.2d 633, 635 (1956). The Act § 807-2.-c., last sentence ("The local land use program may be more restrictive than the overall intensity guidelines") is patently unreasonable (see, e.g., People v. Goodman, 31 N.Y.2d 262, 338 N.Y.S.2d 97 (1972) and cases cited therein; Goldblatt v. Town of Hempstead, 369 U.S. 590, 8 L. Ed. 2d 130, 83 S. Ct. 987 (1962)). It is an unreasonable grant of the state's police power back to local governments. It specifically gives to local governments a power, an unlimited "zoning power," that the state itself does not have (Fred French, supra, 39 N.Y.2d at 591). Similarly, insofar as § 807-2.-d. allows a local land use program to exclude "single family dwellings" (Act § 802-58) or individual "mobile homes" (Act § 807-37) from the classification of compatible use lists "in any land use area," this section is unreasonable. Even assuming the "reasonably applies" qualification that prefaces each section would prevent "efforts at minimization or exclusion" (see Golden, supra, 30 N.Y.2d at 378, 334 N.Y.S.2d at 152) or absolute "prohibition" of development, the potential for abuse is too great. These sections must be severed from the Act (see Act § 819). Fourth Cause of Action: Constitutionality as Applied to Wambat There is a threshold question that must be determined: does the alleged failure of the Act to provide standards for the density of clustering principal buildings mean that the "grid analysis" must be utilized for determining the total development costs of a recreational home subdivision? This court holds that it does not, especially here, where the topography itself raises serious questions concerning the engineering feasibility of such a "grid analysis" subdivision. This claim by Wambat is frivolous. Wambat's porject application to the Agency and their presentation to the Town of Black Brook Planning Board both indicated that Wambat planned to use the cluster concept in cdeveloping" Valmont Village. The court finds the following questions of fact are present and preclude summary judgment (CPLR, Rule 3212(b)): 1. What consideration was paid by Wambat for Valmont Village? And what was the fair market value of Valmont Village et the time of purchase? 2. How many principal buildings may be constructed on the Valmont Village parcel? Thus, how many acres does Wambat own in each land use area? 3. What are the maximum marketable selling prices for recreational homes or lots, assuming Wambat utilizes the "cluster concept"? 4. What are the unit costs for such items as roads, driveways, electric utilities, on-site sewerage disposal systems, and on-site domestic water supplies? 5. Are central water and sewerage systems feasible assuming Wambat utilizes the cluster concept? What would be the total cost for such systems? 6. Can a realty development based on the "cluster concept" yield a "reasonable return" for Wambat? 7. What is the true relationship between Wambat Realty Corporation and Hammond Group, Inc.? The court notes that they operate woodlands operations as a single entity and receive property tax notices at the same address in New York City. 8. Are any of the other "primary" or "secondary" uses under the Act economically feasible as well as technically feasible in the reasonably near future on Wambat's lands? 9. How much would it cost Wambat to adapt its land to any of the above uses? Wambat's motion for a protective order is denied. The parties should proceed to pretrial disclosure. Fifth Cause of Action: Equal Protection Wambat's "spot zoning" argument fails. There is no requirement that the state "zone" pursuant to a comprehensive plan (contrast Town Law, § 263, Village Law, § 7-704 and General City Law, § 20/25)). Nevertheless, Wambat's equal protection claims are quite serious. There are other areas of similar unique, scenic and environmental values in other parts of the state that have not been subjected to state imposed regional planning. Furthermore, no cases have been pointed out to the court that have upheld a similar "classification as to locality." The court of appeals rationale, in Alevy v. Downstate Medical Center, 39 N.Y.2d 326, 331 thru 336 (1976) is significant on this question and bears extensive quotation: In addressing any such (denial of equal protection) constitutional claim, a threshold decision must first be made — the standard and review to be applied (Montgomery v. Daniels, 38 N.Y.2d 41, 59). Traditional equal protection analysis is two-tiered. Most classifications are subject to the lax standard of constitutionality which tests whether the challenged classification bears a reasonable relationship to some legitimate legislative objective. The test has been applied with great indulgence, especially in the area of economics and social welfare where, for example, it has been said that "if the classification has some reasonable basis, it does not offend the constitution simply because the classification is not made with mathematical nicety or because in practice it results in some inequality. (Dandridge v. Williams, 397 U.S. 471, 485; see Matter of Levy, 38 N.Y.2d 653; Matter of Figuerora v. Bronstein, 38 N.Y.2d 533; Gleason v. Gleason, 26 N.Y.2d 28; Matter of Bauch v. City of New York, 21 N.Y.2d 599). Indeed, in actual application the rejection of classifications under this test appear to be rare. Where, however, a statute affects a "fundamental interest" or employs a "suspect" classification, the strict scrutiny test has been applied. That test requires that the legislative purpose be so compelling as to justify the means utilized. Where strict scrutiny is required, a painstaking inquiry is made to insure the existence of a proper governmental objective. . . . The burden imposed on a state is a very heavy one. Indeed in only two cases has governmental action surpassed strict scrutiny and in both instances the justification was national security (Korematsu v. United States, 323 U.S. 214; Hirabayashi v. United States, 320 U.S. 81). The inflexibility of the traditional equal protection approach is readily apparent for each is polarized and outcome determinative. Modern theorists . . . have detected a departure from the traditional approaches in recent precedent and argue, convincingly, we think, that a middle level of review presently exists. Therefore, we do not feel constrained to apply either traditional tests but instead are ready to adopt middle ground tests in situations where such review is warranted (cf. Montgomery v. Daniels, 38 N.Y.2d 41, 61, supra). Plaintiff Wambat urges that the state has taken a fundamental right from defendant: the right of choice in the use of his property within the common law restrictions and applicable local zoning ordinances. Wambat concludes: the Act must be subject to "strict judicial scrutiny" since it is "inherently suspect" and cannot be upheld because there has been no showing of "compelling state interests." All defendants urge various forms of the "reasonable basis test." This court holds that a "middle ground" test similar to that proposed in Alevy, id., p. 336, is warranted here. The Act clearly furthers a legitimate, actual and articulated governmental purpose — that the previously largely unzoned area of privately owned lands within the Adirondack Park are "developed" in accordance with a comprehensive regional plan (see Golden, supra, 30 N.Y.2d at 376, 334 N.Y.S.2d at 150; Berenson v. Town of New Castle, 38 N.Y.2d 102, 111, 378 N.Y.S.2d 672, 682 (12/2/75). A further inquiry must be made at trial as to whether the objectives being advanced by the Act could not be achieved by a less objectionable alternative than the very stringent overall intensity guidelines of the Act. Seventh Cause of Action: Freedom of Movement This court holds that Wambat has a "sufficient stake in the outcome to permit them to maintain" this cause of action (see Berenson, supra, 38 N.Y.2d at 107, footnote #1, 378 N.Y.S.2d at 677 (12/2/75)). Defendant APA has shown that the possible potential population based upon the overall intensity guidelines of the Act would be 1,414,045 people in approximately 442,018 potential units on all 3,225,948 privately owned acres within the Adirondack Park. "Existing structures were not included in the computation of the number of single family dwellings that were allowable in a given area, nor were the exemptions from the overall intensity guidelines contained in Sections 809, 810, and 811 of the Adirondack Park Agency Act considered." (See Riner affidavit, supra, pg. 3 & 4). While this "projected possible population" is much greater than the present permanent and seasonal population, it serves only to distinguish the Act from the ordinance in Golden, supra, which was immediately "growth-limiting" and "exclusionary" but was, nevertheless, a justifiable exercise of the police power. Wambat has developed no facts identifying who will be excluded and how the Act effects such. These are questions of fact for trial. Plaintiffs must show that the Act so interferes with the housing market that compelling needs or demands for primary and economically feasible shelters are unmet in the "local community" or in other accessible areas in the community at large (see Berenson, supra, 38 N.Y.2d at 111, 378 N.Y.S.2d at 681). 6 ELR 20690 | Environmental Law Reporter | copyright © 1976 | All rights reserved |