I write in praise of the scope and content of Adirondack Explorer’s current lead article “The Future of Open Space” by Phil Brown, but wish to add emphasis to one very important aspect. The article rightly notes that “it is vital to have an APA staff and board willing to use their authority to protect the backcountry.”
Attempts to strengthen or change APA laws and regulations that protect the open spaces of the park are for naught if APA lacks the will to use the legal tools available to it. That was the case with Adirondack Club and Resort (ACR), where APA had plenty of legal authority, but lacked the courage to deny ACR, greatly modify the project, or reopen the hearing to obtain evidence missing in the hearing.
In 2007, the Agency placed a senior staff member in charge of the ACR project, Mr. Sengenberger, who made his attitude plain to those of us participating in the prehearing meetings: ACR’s design which spread more than three dozen great camps across 4,000 acres of Resource Management was nothing out of the ordinary, or precedent-setting. While I always respected Mr. Sengenberger, I believe his view was in the minority among the staff. Nonetheless it was Mr. Sengenberger who the Agency brought out of retirement to be their leading expert at the hearing. He testified that the law which allows residential development in Resource Management to take place on substantial acreages or in small clusters was not a mandate, just one of many considerations to take into account. Furthermore, he wrote that “the most important element in designing residential subdivisions in Resource Management…is finding suitable locations for proposed on-site wastewater treatment systems.”
Judging from evidence unearthed during the hearing, other APA staff strongly disagreed with this reductionist attitude towards the APA’s law, where any project can pass muster so long as it is environmentally engineered. Three of these staff (all are now retired from the Agency) – Mr. Outcalt, Mr. Quinn and Ms. Halasz – wrote memoranda to Mr. Sengenberger in early 2005 when the ACR proposal was first being studied, collectively making these points:
1. The law’s language which states that “Resource Management areas will allow for residential development on substantial acreages or in small clusters on carefully selected and well designed sites” was a legal mandate (not just guidance as Sengenberger testified) but required careful policy development approved by the commissioners (which was never done);
2. Forest and habitat fragmentation which results from carving up Resource Management into many lots should be avoided through clustering which overlaps rather than spreads out housing impacts on wildlife habitats (APA admitted there was no clustering in the project);
3. Alternatives to large subdivision on RM must always be seriously studied and considered and in fact a study of concentrating all of the ACR development around the ski center should be developed and compared to the proposed project.
This, of course, never happened, corroborated by APA’s chief scientist, Mr. Spada, whose written testimony states that the process of identifying alternatives was “short-circuited” by the applicant, and that “there has not been an organized and rational discussion of reasonable, potential alternatives.”
4. Under the law, open space in the Park should be preserved and protected for its own sake, not only if the open space in question has important natural resources within it. I quote from one of these staff memos: “The fact that much of the Park’s open space is constitutionally protected public forest preserve land does not make protection of private open space any less important, especially in Rural Use and Resource Management where it is statutorily required to be preserved and protected” (emphasis mine).
Phil Brown’s article also notes that in the case of ACR the Agency ignored the many conditions on prior permits it issued in the 1980s and 90s to build in clusters to protect open space. The article cites three permits – at Oven Mountain, Veterans Mountain (Camp) and Butler Lake. Adirondack Wild: Friends of the Forest Preserve can cite nine such permits, some issued within the past ten years and several signed by Mr. Sengenberger as Deputy Director of Regulatory Affairs. While hardly perfect, by way of contrast with ACR at least these permits attempted to adhere to the purposes, policies and objectives of Resource Management and Rural Use. The nine restricted residential development to a relatively small area of the project site and maintained the vast majority of the acreage as undeveloped forest and open space, as the statute commands. These prior permits were:
• Patten Corporation (APA 87-340A)
• Butler Lake (APA 89-312)
• Oven Mountain Estates (APA 91-110)
• Veterans Mountain Camp (APA 92)
• Whitney Park (APA 96-138)
• Diamond Sportsmens’ Club (APA 2001-217)
• Adirondack League Club (APA 2005-172)
• Brandreth Park Association (APA 2007-117)
• Persek project (APA 2001-76)
The latter permit, Persek, was presented by APA staff in a recommendation to take the ACR project to public hearing (2007) as a model for the ACR to follow in terms of conservation design of development, impact avoidance, and protection of large, contiguous tracts in Resource Management lands.
Photo courtesy Wikipedia.