Tuesday, July 19, 2011

Dave Gibson: Building Rights for ACR?

Most American communities will ultimately develop according to how they are zoned. Absent state or federal regulatory protection of wetlands, for instance, or other legal protection or zoning overlays, land in R-1 or other residential zoning will ultimately, some day be valued, bought, sold, and developed consistent with the number of houses allowed there under the local zoning code.

Of course, towns are legally allowed to plan for their futures, and regulate development in a far more creative fashion, but few in my area seem to use that authority. I live outside the Adirondack Park in Saratoga County, and found out that the allowable density under the zoning law in my town far outweighed the presence of a lot of small (read unregulated) wetlands, wet soils, lots and lots of trees, and well adapted critters like hawks and owls.

An out of state developer was, therefore, “entitled” to 18 homes and 18 separate driveways on 18-wooded acres in this R-1 residential zone. Any questioning of this formula resulted in assertions by the town attorney that the applicant has vested rights in that number of lots. Lo and behold, the planning board actually asserted its authority and knocked out two lots, but I suspect that was only because a bunch of neighboring citizens, including my family, sued the town for failing to conduct a meaningful environmental review (the suit proved ultimately unsuccessful).

The neighbors walked and photographed the land in question in all seasons, and predicted that building over such a high water table would require expensive engineering vulnerable to failure, subjecting the neighbors to flooded cellars, and requiring sensitive wildlife “to move.” Any sympathy at town hall evaporated after the lawsuit. The board felt they had bent over backwards by knocking out two lots. Why this swampy land full of wood frogs was wrapped into the adjoining R-1 district was the town board’s, and not the planning board’s responsibility.

In contrast, the Adirondack Park Agency (APA) must interpret development density in the context of complicated regional legislation called the APA Land Use and Development Plan whose purpose is to “insure optimum overall conservation, protection, preservation, development and use of the park’s unique resources.” Under the APA law, there are no land use zones. In fact, you can not even find the word “zoning,” or zone in the definitions section. There are, instead, “land use areas.” Each of these six areas is described as to their character, purposes, policies and objectives. Each has a different guideline for the overall intensity of development which, according to the law’s logic, is compatible with and help to perpetuate the existing character, purposes, and uses of the land.

For instance, under the Resource Management (RM) land use area (whose basic purpose, quoting from the Act, is “to protect the delicate physical and biological resources, encourage proper and economic management of forest, agricultural and recreational resources, and preserve the open spaces that are essential and basic to the unique character of the park”) the overall intensity of development “should not exceed approximately fifteen principal buildings per square mile.” Hence, the oft-used expression that in this largest and most protected of private land use areas there is “43-acre zoning,” or one principal building allowed per 42.6 acres.

“43-acre zoning” is a serious misreading and misapplication of the APA law. This is because mathematical achievement of the overall intensity guidelines should only be viewed in context with other criteria for determining project approvability, including whether or not a development project would be compatible with the purposes, policies and objectives of the land use area in question, or whether it would cause an “undue adverse impact” upon the resources of the park which, in turn, must be assessed according to numerous and defined development “considerations” for water, land, air, noise, critical resources, wildlife, aesthetics, historic factors, and lots more defined in regulation. Knowing this makes the “shall not exceed approximately” language of the overall intensity guidelines more understandable. The Act is clearly not like my town’s zoning law. 43-acres per principal building in RM are not a vested right, but a guideline judged in context with other equally weighted criteria needed to comprehensively assess a given project.

Some APA applicants, particularly if they have attorneys representing them, misread the APA Act purposefully and speak of these intensity guidelines as a legal, vested, valuable (in dollars) right. Even the APA can forget the context of its own law. For instance, as the Adirondack Club and Resort (ACR) hearing got underway in March, APA hearing staff issued a draft document attempting to stipulate how many mathematical “building rights” the applicant Michael Foxman had in the two affected land use areas, Resource Management and Moderate Intensity Use. This language was objected to by a variety of parties, and APA quickly conceded the point and from then on used the term “principal building opportunity.”

Foxman’s ACR attorney Tom Ulasewicz never conceded the point, and used the term “building rights” repeatedly, even at the last day of the hearing in late June. At no point do I recall APA staff correcting him, or objecting to his frequent assertion of “building rights” in the hearing record. This tolerance for language that so distorts the law’s purposes may be a pet peeve of mine, but I fear it’s a symptom of a lowering of standards for project review at the park agency.

Does the fact that ACR’s Michael Foxman proposes to build 82 new principal buildings on nearly 4800 acres of Resource Management mean he is in the clear as far as this aspect of the law goes? Applying the overall intensity guidelines math (“43-acre zoning”) means he could “potentially” build 111 new homes on RM. As ACR attorney Ulasewicz frequently pointed out, his client is far below the “legal threshold.” There are 29 “additional principal building opportunities” which ACR is “not using” he pointed out at frequent intervals.

The answer to such a distorted view of the law should be that after weighing the hearing evidence and its law, the APA would be completely within its legal rights to declare that, for instance, all or large portions of the RM land should remain as it is, undeveloped, so that this land use area can continue to serve its legally defined purposes, policies and objectives, and so that a variety of undue adverse impacts may be avoided.

Photo: APA Staff at a 2007 field trip to the ACR site.

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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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