Thursday, May 17, 2012

NYS Senate Sparks Transferable Development Rights Debate

Back in 1990, the Commission on the Adirondacks in the Twenty-First Century recommended a plan to protect the backcountry by shifting development to more settled areas around the Park’s hamlets.

Under the scheme, owners of backcountry lands would receive transferrable development rights, or TDRs, that could be sold to owners of lands in settled areas. The buyers of TDRs would be allowed to develop their property beyond what otherwise would be allowed under the regulations of the Adirondack Park Agency.

The plan was backed by environmental activists, but the Park’s local politicians largely opposed it.

On Tuesday, the State Senate voted 55-5 to approve a bill that would authorize TDRs in the Park. This time, local governments supported the proposal, while environmentalists opposed it.

Dan Mac Entee, a spokesman for Senator Betty Little, who sponsored it, said the bill would funnel development away from the backcountry without reducing the amount of development allowable in the Park as a whole. In effect, he said, it would promote cluster development on a large scale.

“It would encourage some needed development in the Park, but it would do it in a smart and appropriate way,” Mac Entee said.

Fred Monroe, executive director of the Adirondack Park Local Government Review Board, backed the bill, contending that more development is needed in areas just outside hamlets. “Many of the hamlets are pretty much built out,” he remarked.

Monroe had opposed the TDR scheme proposed by the 1990 commission because it would have allowed landowners to transfer development rights from one part of the Park to another. For example, a backcountry owner in St. Lawrence County would have been able to sell development rights to a landowner in Warren County. In this scenario, Monroe said, St. Lawrence County would be penalized. Under Little’s bill, rights could be transferred only within the same town. Thus, the number of development rights in each town would not change.

John Sheehan, spokesman for the Adirondack Council, said Little’s bill is written “in such a way that a landowner could transfer development rights from property he or she does not own,” without the permission of the other landowner. Although the council likes the idea of TDRs, he added, “this is not the vehicle we want to use to get there.”

Bob Glennon, a former executive director of the Adirondack Park Agency, raised a similar objection in a memo to Assemblyman Robert Sweeney, chairman of the Assembly’s Environmental Conservation Committee. The proposal, he said, “appears to be some kind of mini-transfer of development rights scheme, but the language could not be more opaque.”

“There is no explanation as to how the scheme would work administratively, nor as to what say, if any, is given to those who lost building rights,” Glennon wrote in the memo.

Mac Entee said the bill would not allow one landowner to seize another’s development rights without consent.

David Gibson of Adirondack Wild complains the bill lacks mechanisms to ensure that transfers of development rights will be environmentally beneficial. He said the proposal might benefit developers who want additional building rights, but not ordinary landowners. “If it’s trying to do TDR, it just fails,” he said.

Adirondack Wild, the council, and Glennon, who is on the board of Protect the Adirondacks, also object to a provision in the bill that would eliminate the sixty-day window within which landowners must file APA permits with the county clerk.

Mac Entee said eliminating the deadline would obviate the need for landowners to reapply for a permit if they do not undertake a project right away. He noted that landowners would still need to file the permit before beginning work.

Sheehan contends that the bill would leave a landowner’s neighbors and other interested parties, such as municipal planners, in the dark about the future of a piece of property. He said there needs to be a reasonable time frame for filing a permit. “Somewhere between sixty days and never there ought to be a happy medium,” he said.

Gibson and Glennon also say the bill would, in effect, give landowners a “perpetual permit” that could not be modified to suit changing circumstances or new regulations.

Although Little sponsored the bill, it came from the governor’s office. As of yesterday, it had no Assembly sponsor, and the Adirondack Council is urging the Assembly not to take it up—at least not in the form passed in the Senate.

Even if the two sides differ on this bill, it’s a good sign that they agree on the merit of transferrable development rights. In the month or so remaining in the legislative session, wouldn’t it be nice if they could modify the proposal to satisfy both environmentalists and local governments?

Sheehan thinks such a compromise is possible. “It would be a big step in that it would allow for voluntary removal of development rights from these [backcountry] landowners,” Sheehan said. “It’s just another conservation tool that’s available. We don’t know how many people would take advantage of it.”

Related Stories

Phil Brown

Since 1999, Phil Brown has been Editor of the nonprofit Adirondack Explorer, the regional bimonthly with a focus on outdoor recreation and environmental issues, the same topics he writes about here at Adirondack Almanack.

Phil is also an energetic outdoorsman whose job and personal interests often find him hiking, canoeing, rock climbing, trail running, and backcountry skiing.

He is the author of Adirondack Paddling: 60 Great Flatwater Adventures, which he co-published with the Adirondack Mountain Club, and the editor of Bob Marshall in the Adirondacks, an anthology of Marshall’s writings.

Visit Lost Pond Press for more information.

9 Responses

  1. David Gibson Dave Gibson says:

    If the APA, legislative sponsors and governor had called stakeholders together to discuss these matters as concepts before writing and voting on the bill, there would be a whole lot more communication, possibly more understanding and, just possibly, a better bill we could all get behind.

  2. Paul says:

    Dave, I don’t understand this at all. Can you give us a primer?

  3. Paul says:

    Or Phil?

  4. Phil says:

    Paul, TDRs allow a landowner to sell his development rights to another landowner. For example, if I own 1,300 acres of lands classified as Resource Management, I could build up to 30 homes on my property. Now let’s say another landowner has 32 acres in land classified as Low Intensity Use. He could build 10 homes under APA’s density guidelines. If wanted to build 20 homes, he could purchase 10 additional development rights from the first (RM) owner. The RM owner then would be allowed to build only 20 homes on his 1,300 acres. If he sold all his development rights, he could not build at all. The idea is to funnel development away from the backcountry and toward more settled areas. In theory, this is a good idea, but Dave Gibson argues there should be guarantees that such transfers will actually benefit the environment. For example, environmentalists would probably object if a transfer would result in more development in sensitive habitat.

  5. Paul says:

    Phil, thanks I get it. Interesting. To prevent what some are concerned about you would have to almost be dealt with on a case by case basis. Also, wouldn’t increasing development in one area always have some amount of negative impact on the environment? I guess the calculation (not an easy one to make) would be what is the NET impact. I have some TDRs if anyone is interested! This could be a good chance for some environmental groups to prove that it is not access that they are most concerned with. Just like with carbon credits they could purchase TDRs and just put them to bed. Boy I can’t wait to hear some of the comments if that ever that starts happening! Thanks again.

    • Davis says:

      Towns are nearly built out? I doubt this is true park- wide and certainly not in the Northeastern section of the Park. Many of these communities are rundown and very much in need of redevelopment (more people) in the hamlet areas. I think a strong smart growth basis is needed and denser development should only be permited adjacent to these communities to further their revivals. That said, the right form of TDR can be a big positive for the Park, it’s people and all of NYS.

      • Paul says:

        What is denser development in those areas is not what the market wants. People are not heading to the Adirondacks to live in a row house? It would be nice if you could “force” the kind of re-development that you suggest but it is only going to happen if there is a good economic reason for it. The influx you do have are folks that want to retire there. They want elbow room.

  6. Paul says:

    I think this is a good idea. I think there are many BC landowners that do not want to develop their land but need a financial incentive to do it. Basically they want to keep it like it is but also have to pay the bills.

  7. Lily says:

    Two points on this proposal. First, Rural Use & Low Intensity lands often have significant physical limitations for development at the density already allowed under the Park Plan. It is not entirely clear how, without public sewer and water infrastructure, these lands could support additional development. Second, most shoreline is classified as Moderate Intensity use allowing terribly small lots and dense development – already a mistake with regard to protection of our primary resource. Any transfer of rights should not be allowed to increase density of development along shorelines.