Tuesday, March 27, 2012

Dave Gibson: In 1988, A Different APA

1988 was a long time ago, and not just in years. It was a different time in America. It does seem like yesterday in my life, but that’s because I’m in my mid 50s and time is speeding up. In the Adirondack Park of 1988, as in the rest of the country, a real estate boom had been underway for some time. Speculators were getting into the game. At the Adirondack Park Agency (APA), the number of permit applications was way up.

The park’s Resource Management and Rural Use lands – the “backcountry” – were under considerable real estate pressure. The Commission on the Adirondacks in the 21st Century would be established by Gov. Mario Cuomo the following year. In contrast with today, in 1988 a majority of Agency commissioners viewed themselves as agenda setters.
I regularly wrote and published for the membership of the Association for the Protection of the Adirondacks reports titled “what’s up at the APA.” Readers may, or may not find this trip back in memory lane relevant to the debate that Adirondack Wild stimulated recently about the Agency’s current legal authority to deny fragmenting, land consuming subdivisions like the Adirondack Club and Resort. Does the Agency have that authority? Clearly, yes. The history of past Agency actions in similar circumstances is long and undeniable, as my report from 1988 confirms. On the other hand, are the APA Act and Regulations deficient in the tools needed to protect the Park and to provide clarity to the Agency staff, to the public and to applicants? The answer in 1988 and today remains yes.

Here is that report, which recalls aspects of the ACR debate:

“August, 1988: A major challenge has been posed to the Adirondack Park Agency and the APA Act by large acreage subdividers like Patten Corporation, Properties of America, and others. By purchasing large tracts of 1000 or more acres, then subdividing them into large tracts well below the density limits required in Resource Management and Rural Use areas within the Park (the most restrictive classifications), these companies are posing serious challenges to open space. The Agency is responsible for insuring ‘optimum overall conservation, protection, preservation, development and use of the unique scenic, aesthetic, wildlife, recreational, open space, historic, ecological and natural resources of the Adirondack Park.’ Yet, very few specific tools for carrying out the APA’s Act’s language exist in the statute, except for density restrictions (Resource Management 15 principal buildings per square mile, Rural Use 75 PBs per sq. mi.). As APA Executive Director Robert Glennon said at a recent meeting, ‘the APA Act is macrocephalic – it has a big head, but far too small a body.’

Despite the Act’s shortcomings, the APA voted on August 17 to deny a permit to Patten Corporation to subdivide 1900 acres in the Town of Greig into 13 lots on land zoned Rural Use. Patten had sought to create one ‘rustic camp’ on each lot, averaging 150 acres each. Patten planned to include deed restrictions that limited the amount of resubdivision that could take place on most of the lots.

Nevertheless, the Agency overruled staff recommendations, and denied the Greig subdivision by a 7-2 vote (following a public hearing). As stated in their press release, ‘the Agency expressed concern with the rustic camps eventually becoming permanent homes, and with the fact that all 1900 acres were proposed to be lotted out in a grid pattern, without regard to natural contours and boundaries.’ As stated in the APA Act, applicants must demonstrate an absence of negative impacts on Park resources, and this was not done in this case according to the decision documents. Some Agency members suggested clustering the lots to avoid carving up so much of the area, others criticized the deed restrictions as not affording perpetual protection of the land’s character, while still others felt that not enough information on each lot was included in the application. However, Patten representative Daniel Christmas felt that he had provided the Agency with everything the staff had asked for, and asked the full Agency for guidance about the kinds of additional information he should provide. He left notice that he would submit a revised application.”

My report continued about the Agency’s use of its park-wide oversight, research and planning powers:

“The commissioners convened an ‘outback task force’ for several hours on Friday. Improving shoreline protections became a central topic for discussion. Since most of the privately owned shorelines are zoned Moderate or Low Intensity, allowable lot sizes, widths and setbacks do not afford needed protections (25,000 sq. ft. minimum lot size and only 100 feet lot widths in Moderate Intensity shoreline, for instance).

The original Vermont land use law, Act 250 and its successor Act 200 should be seriously studied by the Agency, said several of its members. Provisions in Vermont for a steep capital gains tax on speculative real estate transactions and a land transfer tax may be applicable in New York. Agency member Peter Paine suggested that various fiscal and tax policies in the state which encourage land to remain in a forested or agricultural condition, such as the Forest tax law, are currently not working together very well, and need greater emphasis and coordination. Benefits to the Adirondack Park would flow such state wide review and improvements.

Agency member Elizabeth Thorndike initiated several steps which the Agency plans to take right away: 1. asking staff to draft a strategic plan for assessing environmental health of the park, including its ecological health and environmental data such as where development has occurred since 1973; 2. asking the Governor to support improved state-wide open space tax policies; 3. requesting additional staff resources for the APA.

Meanwhile, the Adirondack Council wrote Governor Cuomo and legislative leaders recommending a study commissioned by the governor ‘to assess the full implications of present development trends and impacts’ in the park. At the same time, the Council urged the Legislature to impose a one-year moratorium on all subdivision of three or more lots involving 250 or more acres outside of Hamlet areas.

Patten Corporation, with a regional office in Lake Placid, simultaneously announced a one-year moratorium on further subdivision of its holdings in Resource Management. It urged others to follow suit in order to allow the APA to implement long-term planning for these areas.”

Photo: Gov. Nelson Rockefeller signs the APA Land Use and Development Plan in 1973. With him are Richard Lawrence, APA Chairman (left), Assembly Speaker Perry Duryea (center), and Senate Environmental Conservation Committee Chair Bernard C. Smith (rt.) Photo by Paul Schaefer.

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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.




19 Responses

  1. Will Doolittle says:

    That is fascinating. Here’s a line that jumps out at me: “As stated in the APA Act, applicants must demonstrate an absence of negative impacts on Park resources,”
    Does the APA Act really state that, or is that Dave Gibson’s wishful interpretation? How is it possible for a development of any sort, even a single yurt on 1,000 acres, to have “an absence of negative impacts on Park resources”? That statement seems incompatible with the excerpt from the APA Act you do provide: The Agency is responsible for insuring “optimum overall conservation, protection, preservation, development and use of the unique scenic, aesthetic, wildlife, recreational, open space, historic, ecological and natural resources of the Adirondack Park.” That language includes “development and use” along with “conservation, protection, preservation” — a balancing, in other words.

  2. Bill Ingersoll says:

    Just as an observation, if the APA is behaving more weakly than it was 24 years ago, this is partially offset by the fact that the state vigorously pursued a successful acquisition program during that same time period. Those lands included not only tens of thousands of new Forest Preserve acres, but hundreds of thousands of easement acres where the development rights were permanently extinguished.

    The APA was created at a time when a developer could, in theory, buy a huge tract of backcountry from a paper company and do who-knows-what with it. There are now very few properties remaining that are still vulnerable, and most of those appear to have stable ownership at the moment (Brandreth Park, the Adirondack League Club, Whitney Park, the Rockefellers’ Bay Pond property). I personally cannot think of another property where a project like Big Tupper could be proposed, because all of the big mountains have been spoken for. Rampant backcountry development is no longer legally possible.

    Therefore it seems to me that regardless of changes to the APA (intended or unintended) all future projects are likely to involve relatively small properties (by Adirondack standards) in highly visible locations.

  3. Dave Gibson says:

    Bill,

    I appreciate your good observation re. the nearly 900,000 acres of conservation easement that have been acquired since 1988, where ACR type subdivison and development is precluded. However, there is still between 1-2 million acres of RM and Rural Use land without any easement, and vulnerable so subdivision. A look at the Park map suggests many vulnerable parcels.

  4. Bill Ingersoll says:

    Yes, there may be unprotected land, but:

    1) Name a specific property with its own mountain where a ski resort could be developed. I can’t. All of the largest mountains are protected, and those that are not (Big Tupper included) are outside the park’s snow belt.

    2) Much of the remaining property — and especially the “rural use” category — is smaller in nature and in less remote areas.

    Sure, I’m generalizing here. But I am looking at the map, and most of that dark green (the resource management zones) are protected by easements, and nearly all of the light yellow zones (rural use) are areas with existing road networks and residential development, especially in the southern and eastern regions. To fight a development proposal on these lands with the same vigor as ACR is to risk becoming increasingly petty, in my opinion.

    My personal approval rating of the APA is low, too, for reasons that have nothing to do with Big Tupper. But in terms of development threats, I seem to have developed an allergy toward claims that the sky is falling. The APA has not been the only tool in the toolbox.

  5. Paul says:

    “The park’s Resource Management and Rural Use lands – the “backcountry””

    Dave, I have seen you use this term several times in recent posts. Who are you quoting?

    Is there anyone else that uses the term backcountry to define RM lands?

    That seems like a new thing that I have only seen here a few times.

    I spent sometime driving around some roads in the backcountry this weekend. You should have seen all the logging equipment.

  6. Dave Gibson says:

    Paul,

    Backcountry is a very loose term commonly used to mean the privately owned resource management and rural use land use areas beyond what is visible and developed along a road. Yes, forestry activity is part of that scene.

  7. Mick says:

    “The health of our forests is an issue of vital importance for rural America. Not only are our forests a source of immense natural beauty, but they provide us with natural resources, recreation opportunities, wildlife habitat, and serve as economic engines for local communities. It’s important to all of us that we have an effective plan in place that promotes healthier forests,”

    I deleted three words from this quotation. Anyone know who said it?

  8. Paul says:

    Dave, thanks. Is this a term that has been used for RM lands for years? I have normally heard it used as a term to define areas that are mostly assessable only on foot. This looser definition that you describe is much different. I think that statements like “fragmenting the back country” sound good for opposing projects such as ACR but I don’t think it is necessarily accurate.

  9. Paul says:

    If you live in Saratoga or where I live most of the year the RM lands where the ACR project is planned is maybe the “backcountry”. If you live in Tupper Lake it is better defined as your back yard!

  10. Paul says:

    I am curious why industrial timberland were not defined as “industrial use” under the APA act?

    From the Act:

    “This is where industrial uses exist or have existed, and areas which may be suitable for future industrial development. Industrial and commercial uses are also allowed in other land use area classifications.”

  11. Rational and Logical says:

    The Agency is vastly improved over the Agency of the 10980’s and more work needs to be done. The regulatory aspect has for too long dominated the overall the overall functions of the Agency. Serious and meaningful planning has all but been lost and real economic and community development has NEVER occurred.

    Had attention to community planning been paid the dramatic losses in population among the communities and school districts and the extreme aging of the population could have been anticipated and proper steps could have been taken with the policy framework to address the adverse impacts of these circumstances.

    But no, all energy and attention has blindly gone to buying more land, securing more easements and the communities went into a slow and gradual decline. Now we are at the edge of the abyss and yet some lick Mr. Glennon and Gibson and Plumley and Caffry still don’t get it. The Agency has changed but I am afraid not quickly enough.

  12. Brian says:

    “The regulatory aspect has for too long dominated the overall the overall functions of the Agency.”

    As it should be. That’s because it is a regulatory agency. It’s not a planning or economic development agency and was not set up to be either, because both exist in spades.

  13. Rational and Logical says:

    Brian:

    That is the exactly the type of misrepresentation that has led to the state of affairs among the communities in the Park. The preamble of the Adirondack Park Act in its stated legislative purpose speaks to the need for balance and community and economic development. Where does planning exist? Where has economic development occurred? Less than 20% of the communities have an Agency approved plan. Many of the sewer and water systems are operating under consent orders and those aren’t are aging and in need of repair. The Cornell Program of Applied Demographics is forecasting that by 2040 Hamilton County will have a total population of males from 25-29 years of age at 28 individuals for the entire County! 28! For an entire County! That is not, to coin a trendy phrase environmentalists are so quick to use these days, – sustainable. No, I reject your premise in its entirety. Planning in the Park does need to occur. Community development does need to occur in the Park. Economic development in the Park does need to occur. And the Agency is best positioned to do it. The financial resources of the state need to be re-calibrated to support these functions.

  14. Adam says:

    Dave, I must agree with Paul here. Your use of the term “backcountry,” along with your provided definition, is specious at best. Why don’t you just call these what they are:privately owned lands?

  15. Dave says:

    Can privately owned lands not be considered the backcountry?

    That strikes me as an equally specious definition.

  16. Adam says:

    Sure they could. I suppose my objection is more to your definition. I think when most people hear “backcountry” they are more apt to think of publicly accessible State land and not these private parcels.

    I disagree that calling these lands privately owned is specious: they are privately owned. How about a compromise: privately owned backcountry? I think these distinctions are important, but that’s just my opinion, which is worth what you’re paying for it…

  17. Paul says:

    As long as it is far from a settled area and some what inaccessible any land public or private could meet the definition.

    It doesn’t seem like this qualifies. But it isn’t as cool to say that the project will “fragment the resource management lands close to areas designated as Hamlet”

    Why under APA classification is industrial timberland not defined as industrial use? Not what I would want to see but it seems to fit the classification as defined in the act?

  18. In answer to Will Doolittle’s question:

    The phrase most often used in the APA Act is that projects should not have “an undue adverse impact upon the natural, scenic, aesthetic, ecological, wildlife, historic, recreational or open space resources of the park.”

    http://www.apa.ny.gov/Documents/Laws_Regs/APAACT.PDF

  19. To Logical and Rational: Why don’t you read the APA Act and see what it actually says? Tell me what section/clause mandates the APA act as an economic development agency?

    http://www.apa.ny.gov/Documents/Laws_Regs/APAACT.PDF

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