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June 2010

No Sense of Entitlement

Illustration by Mark Wilson

THE ADIRONDACKS IS HOME to some of the most complex title issues in the nation, but the most colorful and twisted land-ownership squabble, hands down, involves about 200 properties around Ra­quette Lake—the so-called Township 40 problem, named for the lake’s township location as designated in 1772.

Floating along the shoreline of Raquette Lake or wandering through that historic ham­let, you’d see no outward sign that one camp or homesite is contested terrain while the one next door isn’t. The residents themselves have had trouble sorting it out, with no current records—deeds, mortgages, tax maps—indicating anything amiss. Title companies, typically searching back only 40 years, often find nothing out of the ordinary. But surveyors tend to dig deeper. Recently one landowner, whose surveyor couldn’t determine his eastern boundary, wrote to the Department of Environmental Conservation (DEC) asking for clarification of the property line. The agency’s response was, in essence, We own your land: if you touch a blade of grass on it, we’ll take you to court.

 

RAQUETTE LAKE’S TROUBLED TALE begins simply. In 1848 a frequent visitor named Farrand Benedict bought Township 40—about 24,000 acres—from the State of New York. (A township is a geographic rather than political subdivision.) Although extremely remote, T-40 was known for good hunting and fishing. The lake was recognized as the crossing of two water routes by which one could traverse the Adirondacks; if you were determined and hardy, you could get there by boat, on foot or on horseback.

From the 1850s to ’80s Benedict and others sold and willed parcels to people who sold and willed parcels again: the norm was to subdivide and sell, proving that some things never change. During those same decades, property owners paid taxes on these lands—or risked losing them, as owners do today. The difference is that the state took possession of tax-delinquent lands back then, whereas now counties do.

For decades in the 1800s the state comp­­troller’s office reimbursed counties—which collected the taxes—when owners didn’t pay, and held tax-sale auctions to recoup costs. The comptroller’s mission was simple, dictated by the state legislature: Get rid of the stuff—we don’t want land, we want revenue.

In the 1870s New York changed the auction game. It became a bidder and bought tax-delinquent land (at the price of back taxes), then sold it as a landowner rather than a tax collector. If there were no buyers the state kept the land and leased it, many times to logging outfits.

The game changed again in 1883 when the legislature decided it liked Adi­rondack land, that state parcels in the region should not be sold. New York went further in 1885, ruling that the land shouldn’t be leased either. The 1885 law also created the “Forest Preserve” designation and put these properties’ management in the hands of a new entity, the Forest Commission. Its mandate? Keep the forest forever wild.

By that time much of Township 40 was claimed by both the state and private individuals. Along with the unreliability of 19th-century record-keeping—at both state and county levels—the area’s re­moteness made communication a real problem. Some residents nev­er saw newspaper ad­vertisements for tax sales; some weren’t notified after the properties were auctioned. Meanwhile, people still paid taxes, and plots were still divided and sold—though almost nev­er surveyed.

What’s more, because of the “forever wild” constitutional amend­ment (and the legislative gymnastics necessary for New York to sell or swap land listed as Forest Preserve), the parties couldn’t settle their differences privately—and still can’t.

Between 1901 and 1924 the state tried to eject most of the lake’s property owners more than once, and numerous lawsuits crawled and hiccupped their way through the court system. At one time, the state admonished residents to sign over their land and “thereby save the [Forest, Fish and Game] department ex­pense” of litigation.

The state thought the problem was solved with a court referee’s decision in 1904 and sent game protector John Burn­­ham to Raquette Lake the following year with orders to tear down about 40 buildings. A contemporary New York Times ar­ticle re­ported that Raquette Lakers “are up in arms and threaten to shoot the State officers if their places are touched.”

By my count, 71 families were challenged in those early years. One source says 11 were “scared off” by the ejectment threat; the remaining 60 stayed. Of the early cases only four went through the courts to a final determination of title. All went against the state, including ones in 1907 and 1924, when appellate judges ex­amining the early tax-sale auctions found a variety of faulty actions on the part of county collectors and state comptrollers (poor re­cord-keeping and procedural prob­lems). Both decisions de­clared three tax sales, the basis of the state’s claims at that time, null and void. The Forest, Fish and Game Commission—forerunner of to­day’s DEC—backed off.

Things were pretty quiet on Ra­quette Lake after that. Residents say their fam­ilies simply didn’t talk about the problem for fear of waking the sleeping giant in Albany. Children might hear a parent or grandparent make occasional mention, but questions were brushed aside.

Sleep proved fitful. The state won one case in the 1940s—against St. William’s church—but lost another in the next dec­ade. Two more were decided against the state in the 1990s, in what John Keating, of the DEC’s real property division, calls the “ebb and flow of prosecution during the 20th century.” Although the state went to court more than 100 times in 100 years, it succeeded in acquiring less than a half-acre of land.

The tide turned in 2002 with a decision against a Raquette Laker that added 13 acres to the 2.6-million-acre Forest Pre­serve. In that case New York claimed it acquired all of Township 40 more than once during the 1800s, above and be­yond what it got through early tax sales. The old rulings—saying those sales were in­val­id—are now moot, according to the state. But some property owners say the 2002 verdict may have overlooked key information from a case heard prior to World War I.

 

THIS YEAR SOME 185 property owners—not 60—live in limbo. The contested parcels around Raquette Lake total about 850 acres (with 90 out of the al­most 200 less than one acre in size). They’re scattered along the lake’s 99-mile shoreline and in the hamlet, and include the school and firehouse lots. If the DEC pursues title on each parcel through the courts, typically a five-year process, it could still be at it in the year 3000.

State Assemblywoman Teresa Sayward, who represents Raquette Lake, says this is an unacceptable scenario. Con­tacted by a residents’ group in 2003, she has led the way in negotiating a solution among all interested parties. The chairman of the county board of supervisors, local citizens, assembly leaders, a governor’s deputy and a representative from the state attorney general’s office, plus all imaginable environmental groups, have met several times to hash things out.

And the outcome? Complicated. In 2008 legislators put forth a proposed constitutional amendment that would have allowed a land swap: the state would aban­­don its claims to the disputed lands in Township 40 and affected property ow­ners would buy a par­cel elsewhere to add to the Forest Preserve. But with a hefty price tag for residents and opposition from some environmentalists, the amendment has since been shelved.

Most negotiators still believe this is the route to take. The stumbling block is coming up with land values that everyone finds reasonable, so that the property owners pay something in exchange for clear title and the Forest Preserve gets a valuable addition. But to some, putting dollar values on contested Ra­quette Lake land and on an undeveloped parcel of lake-and-forest property is an apples-to-oranges comparison.

It’s rumored that, early in negotiations, the state was willing to pay for the land swap itself, proving how badly it wanted the problem solved. At the other extreme, one or more negotiators want the state to have its pound of flesh: they say property owners should pay fair market value for their homes, essentially buying them all over again. A figure as high as $20 million has been mentioned, or about $20,000 per acre—not all of which is shoreline, by the way. (In 2008 there were about 1,000 contested acres.) Other ideas have been floated: reduce the value of the Raquette Lake parcels by putting development restrictions on them; increase the value of wilderness parcels by factoring in development potential; go back to land values as they stood in 1885, when the state should have sorted things out but didn’t.

By all accounts the DEC doesn’t want to take people’s houses, though that as­surance is cold comfort to property owners. In this day and age, the public would be outraged if the state took someone’s home outright. But who blinks an eye when a family is taken to court? This is what keeps residents up at night.

From Poplar Point to Big Island, Ant­lers Point and on up the lake to the outlet, folks remember who came first and who followed later. Yes, they say, these families had deeds; yes, they had legitimate land claims. Locals’ grandparents and great-grandparents knew them.

Some people involved in this issue—many of whom don’t want to be quoted because the story involves politics, personalities and money—still assume state title is superior in Township 40 and discredit local memory as fallible. Ironically, 100-plus years of litigation may have proven the opposite, that the state can be wrong, the courts can be wrong—and the system itself is fallible.

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