Tuesday, November 9, 2010

Commentary: Towns Have Authority to Build Better

I am dismayed by the level of development that many towns tolerate before anything actually gets permitted and built.

In my area outside of the Park in Saratoga County, you can drive by road frontage denuded of trees, with soil blowing in the wind and find out that the town had never issued any building permits or final site plan approvals. Instead, the town simply looked the other way while the developer engaged in so-called “preconstruction” activity, such as excavation for water, sewer, utilities, roads, or for so-called site investigation such as test pits for septic tanks.Years can go by, and nothing is done to remediate the soils, the waters, the landscape, while nothing gets built.

Towns are not mandated to look the other way while developers “preconstruct” before actually building under some kind of permit. They have plenty of legal leeway to say “no” to excavating lands where there is as yet no legal permission to build. The Town Law grants towns full rights to refine the conventional definition of a subdivision to include preconstruction activity, and thus to regulate that activity.

For about thirty-forty percent of development in the Park, at least, the Adirondack Park Agency (APA) will not allow developers to preconstruct before receiving a permit to develop. APA defines subdivision to include any “grading, road construction, installation of utilities or other improvements or any other land use and development preparatory or incidental to any such division.”

I thought of this with respect to the proposed Adirondack Club and Resort (ACR). Outside of the Park, an ACR-scaled development might still be under local permit review while all sorts of roads, excavations, and perforations of the land were actively underway for lack of any town regulation. One may be safe in presuming that the APA Act will keep graders and backhoes off the lands of Oval Wood Dish in Tupper Lake unless and until a permit is granted following the scheduled adjudicatory public hearing and review of the hearing record.

The levels of engineering scrutiny of an ACR-type development just increased. The Department of Environmental Conservation (DEC) has told the ACR applicant that individual stormwater prevention plans for all of the project’s components parts must be completed and must be more rigorous in order to meet new DEC standards which seek to protect smaller waterbodies from downstream sedimentation and pollution. Those standards are statewide, not Park standards, so I hope that they will be equally enforced elsewhere.

I was taught in school that urbanizing an area by hardening it, paving and sewering it resulted in some remarkable changes in the run-off, or discharge of storm water. “An average peak runoff rate for rural parts of basins …was about 30 percent of the rainfall intensity, while on the impervious areas it was approximately 75 percent,” with the precise effect dependent on the nature of soils and extent of impervious area (Water in Environmental Planning by Dunne and Leopold, 1978). Definitions of urbanization differ, but a majority of rainfall simply runs off when surfaces are paved, or even when they are hardened and grassed over.

Thus, DEC is requiring the ACR applicant to better define what is going to run off and what changes that will have on downstream water quality, since many surveys show that preserving natural ground cover significantly decreases the necessary amount of water treatment, and visa-versa. Preserving natural ground cover is the best and most economical way to prevent flooding and stormwater pollution. Even that great builder of levees the Army Corps of Engineers agrees. They studied the Charles River in Massachusetts and determined that the same flood prevention effect could be achieved by either buying $10 million worth of wetlands or spending $100 million for engineered flood control measures.

There are many other examples of permissive legal authority which are rarely exercised. Another part of the state’s Town Law (Article 16, Section 278) gives a Town Board authority to require its Planning Board to seek an alternative or clustered subdivision plan. A developer like Michael Foxman, for example, could be required by the Town and Planning Boards of Tupper Lake to present alternative ways to develop, including unconventional subdivision which minimizes the amount of cleared land, the number of roads, which clusters homes and which reserves large blocks of contiguous forest – thus minimizing development costs. It will prove interesting in the public hearing and afterward to see how aggressively APA pushes the applicant to present a true alternative design. The Town of Tupper Lake has that same power. Given the burdens this development is likely to pose for Tupper service providers it would seem wise to invoke it.

It’s questionable how many towns exercise this permissive authority to require an examination of smarter growth under the state’s Town Law. None have in my admittedly limited experience. My Town of Ballston, Saratoga County, has yet to respond to my suggestion that it invoke the Town Law to require the Planning Board to seek more creativity in a proposal to build 400 homes on old agricultural and beautiful swampy woods. When and if they do, I may have somewhat higher expectations for Tupper Lake.

Photos: APA staff and Preserve Associates lead a 2007 field trip to the site of the proposed Adirondack Club and Resort at Cranberry Pond below Mt. Morris; Below, Cranberry Pond’s beaver impoundment, where stormwater, sewage and snowmaking issues for ACR concentrate.

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David Gibson

Dave Gibson, who writes about issues of wilderness, wild lands, public policy, and more, has been involved in Adirondack conservation for over 30 years as executive director of the Association for the Protection of the Adirondacks, executive director of Protect the Adirondacks and currently as managing partner with Adirondack Wild: Friends of the Forest Preserve

During Dave's tenure at the Association, the organization completed the Center for the Forest Preserve including the Adirondack Research Library at Paul Schaefer’s home. The library has the finest Adirondack collection outside the Blue Line, specializing in Adirondack conservation and recreation history.

Currently, Dave is managing partner in the nonprofit organization launched in 2010, Adirondack Wild: Friends of the Forest Preserve.




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