Wednesday, September 12, 2012

Commentary: At APA It’s Subdivide Now, Plan Later

Months after approving the largest subdivision in its history (Adirondack Club and Resort), the NYS Adirondack Park Agency (APA) has approved another residential subdivision on substantial acreage in Resource Management – the Park’s most protected private land use classification. In August, APA approved a 13-lot subdivision off Styles Brook Road in the Town of Keene, part of a beautiful farm and landscape of 1,336 acres lying between the Hurricane Mountain-Jay Mountain Wilderness Areas, parts of the NYS Forest Preserve.

Moreover, the subdivision lies in an area identified by the Northeast Wilderness Trust as important to protect a wildlife movement corridor linking the Split Rock Wild Forest along Lake Champlain to the Jay-Hurricane-Giant-Dix-High Peaks Wilderness areas to the west.

Six of the permitted lots allow new single-lot residential development fairly close to the road, while four other lots already have existing single family homes. The applicant, Highland Farmers, LP, limited development on the six lots to just one building by deed restriction, but was unwilling to legally restrict development elsewhere. They stated that there are no plans to build anything else to the south closer to the Forest Preserve “in the foreseeable future,” and promised that historic land uses of forestry, agriculture and open space recreation will continue as they have. The Agency staff noted the owners have been good stewards of their land over several generations, an assertion nobody disputed.

The applicant had significantly scaled down a 2006 APA application for 19-lots, with new homes on 16 of them. That application was withdrawn after the Agency staff asked good questions about how that application complied with purposes, policies and objectives of Resource Management “to protect the delicate physical and biological resources” and “preserve the open spaces that are essential and basic to the unique character of the park.”

Yet, last month APA approved the 6-new homes and the 13-lot subdivision with the proviso that before Lot 10 (536 acres) or Lot 12 (252 acres) are contemplated for further subdivision the owners must submit an “open space plan and implementation measures for the permanent protection of open space resources as appropriate.” The staff wrote that permanent protection for some of the Resource Management is “critical to a finding of compatibility” with the land use classification. Other lots also have potential to be developed more intensively beyond “the foreseeable future”, yet the Agency did not require such a plan on those lots, just on lots 10 and 12.

APA Commissioner Richard Booth did not understand why the future planning requirement did not include all lots with large amounts of open space and building potential under the Agency’s Overall Intensity Guidelines for Resource Management, which on average allows 15 principal buildings per square mile, or roughly one house for every 43 acres. Why aren’t we requiring planning for all lots – when the potential density (the applicant has 21 other potential building opportunities under the guidelines) can be shifted from one lot to another, Booth asked. Furthermore, he asked why are we requiring separate open space plans for both lots 10 and 12 which abut each other? The purpose of planning is to take into account the land’s characteristics as a whole, he said. Shouldn’t an application for development on one lot trigger planning for both lots?

Staff explained that would require the future owners of subdivided Lots 10 and 12 to cooperate with each other in developing an overall conservation plan, which staff felt they were not in a position to require. APA Chair Lani Ulrich explained “we don’t want to tell the applicant how or what to plan for.” The Agency voted for the permit, with Commissioner Booth holding out for a more comprehensive planning approach, which the APA Act encourages.

So, another good-sized landscape in common ownership in Resource Management has been subdivided into multiple ownerships, with long-term planning for a portion put off to some uncertain date. Integrated study and conservation of a contiguous landscape therefore becomes far more difficult.

Project letters on the Agency’s website reveal that the staff urged the applicant to tell them now what future land uses were contemplated, what lands would remain protected permanently, and what mechanism would be used to protect the land. Staff wrote to the applicant that APA needed this information to determine what the cumulative impacts of development resulting from an overall plan or scheme might be. The applicant refused, pointing to their historic good stewardship. They wished to keep options open. They characterized any future planning requirement as onerous, burdensome and beyond the Agency’s regulatory authority (which is untrue). I can appreciate their proprietary interest and viewpoint. The APA has a larger set of public responsibilities to the Park’s natural resources, which the law says are paramount. Yet, as with the Adirondack Club and Resort, the Agency backed down and gave preference to applicant interests over broader public interests. APA allowed the land to be subdivided now, imposing a future planning requirement on just two of the largest lots, which was certainly better than nothing at all.

What could APA have done differently? The Agency could have held a simple legislative public hearing to gather public input, or a more elaborate adjudicatory hearing to gather evidence. It could have deemed the 13-lot subdivision application incomplete until plans were described for how and where the remaining development potential on the land (21 lots) would be allocated and how permanent protection of some of the open space would be achieved. Or, it could have made such plans a precondition of this 13-lot subdivision permit.

APA is perfectly within its legal authority to expect master plans in advance of issuing subdivision permits in this most sensitive of private land classifications – as the state’s courts have ruled. The Agency required such master plans for Whitney Park’s proposed subdivision at Little Tupper Lake, the Adirondack Mountain Club at Heart Lake, the subdivision of Butler Lake in the Town of Ohio, to name three in the past. Why not require such comprehensive planning in advance of a subdivision of over 1300-acres of Resource Management situated between two Forest Preserve wilderness areas (Hurricane-Jay Mountain) which also helps make an important ecological connection all the way to Lake Champlain?

It is encouraging that the new development permitted on the six lots was analyzed by the APA’s biological resources staff in ways which reflect lessons learned from the Adirondack Club and Resort debacle. APA staff member Mark Rooks explained efforts to determine what the ecological impact zone of each the six houses, driveways, lawns, etc. would be, utilizing research models and findings or Drs. Michale Glennon, Heidi Kretser who appeared as witnesses at the ACR adjudicatory hearing. Staff felt that the houses permitted to Highland Farmers, LP, were clustered and their impacts overlapped sufficiently to avoid much unnecessary spreading of negative impacts to species of specialized Adirondack birds and mammals known to be acutely sensitive to exurban development, defined by Drs. Glennon and Kretser as “low density, rural residential development on large lots (~5 acres or larger) outside of urban boundaries.”

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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.




32 Responses

  1. Dan says:

    The land in the ADK’s is already being overused by development. Realistically, the area in question (which is quite lovely, BTW, in case anyone has not been through there) should be allowed to revert entirely to natural forest land.

  2. Paul says:

    Dave, has anyone ever challenged the “deed restrictions” that are put in place with some of these permits?

    Also, to go beyond the lots that you actually have plans for and restrict what a future owner may want to do (assuming that it falls within the zoning restrictions) seems like a bit of an unfair burden for that particular owner. For example someone else who wants to develop their land doesn’t need to convince their neighbor to agree to some kind of restrictions that go beyond the regulations.

  3. Bill says:

    Well written Dave. It appears the applicants in this project also learned lessons from the ACR application fiasco. APA staff requested info from them to determine cumulative impacts etc etc and “The applicant refused”… They wished to keep their options open…. Just like the ACR developers, APA requests wildlife info, ACR doesnt supply it, gets 2 NIPAs, APA says it will get info in Adjudicatory Hearing, doesn’t get and issues approval anyway. Great precedent for future developers, good job APA.

  4. Charlie says:

    This much i know.The more new homes,and the more people there are,the more pollution goes into the environment that surrounds them.Add to this the ignorance,materialism and cosmetic mentality of each new generation and a mathmetician will know there’s no hope for this planet,especially at the rate we’re going.What i mean by cosmetic is… homeowners like for passersby to see what a beautiful landscape they have and so to keep their grass as green as romaine lettuce they spray it with whatever poisons work best.Never mind the clean water and the healthy soil that once was.What i mean by ignorance is… homeowners (generally) are fearful of and hate bugs and so they spray for those too. What i mean by materialism is… to most people their toys are worth more than trees and wildlife and clean water. I can go on but…… I may not make sense but there’s a connection to what i think and what is happening to the last remaining pristine places,not only in this country,but in the world.

    • Ann Melious says:

      Charlie, where do you live?

    • Paul says:

      Over 1 million acres of land in the Adirondacks has been permanently closed to development just in the past decade. 110 thousand acres in one deal alone (TNC/Fynch). In this part of the world most of the land is being protected. This is a small piece of private land surrounded by a sea of protection.

    • Pat says:

      Charlie, I purchased a summer home in the Adirondacks on a small lake. Older home, 3 seasons, relatively secluded purchased about 10yrs ago. What has continually amazed me is the majority of the second homeowners seem to want to bring suburbia with them. As soon as they take ownership they start cutting down trees, landscaping everything and planting lawns and putting up lights all over. I don’t get it, i came to get away from all that. If you like suburbia so much why buy a place in the Adirondacks?

      • Paul says:

        This is a failure to enforce the rules we have in place. Shoreline cutting restrictions are pretty tough but they are often left unenforced.

        Pat, if you see a violation like this are you reporting it to the APA?

        • Jimmy says:

          I appreciate both your comments but have to disagree with the idea that APA shoreline rules are tough. They are NOT tough and are completely inadequate to protect water quality and aesthetic qualities of woodland lakeshores.

        • Jimmy says:

          Paul…for starters there should be a lot coverage limit for shoreline lots, increased building setbacks, a prohibition on replacing or enlarging any structure within the setback zone ( APA’s new rules allow for some expansion within the setback area now and they area handing out variances for larger additions like they were Popsicles.) Better controls to prevent disturbance to natural vegetation soils and slopes next to water bodies is urgently needed. And, finally, some manner of getting old inadequate septic systems improved or replaced.

          • Paul says:

            Jimmy, can you be more specific?

            What coverage limits? What setback? Also, increased wetland regulations mean that setbacks are actually much larger than they actually look like on a map. Again this is an enforcement issue in many cases.

            The number of buildings within the setback zone is pretty limited. That is why the legislature originally said that they would exempt those structures. I think the rules should focus on new development, that is really what will change the character of particular lakes.

            The controls you describe are already in place, again there are enforcement problems.

          • Steve says:

            Jimmy,

            Any idea of how many popsicles…er..variances they handed out this year? There are 108 towns in the park, so are we talking hundreds?

          • Jimmy says:

            Paul, lot coverage refers to the percentage of the entire lot that can be covered with hard surface like buildings and driveways. The setback is the minimum distance buildings are to be away from the shoreline. I do agree with you that enforcement is wholly inadequate, but the original Park plan also compromised terribly on shoreline protections allowing min. Setbacks of just 50feet on MOST shorelines!!!!!

            Steve…no, I don’t know the numbers of variances granted but remember there are a bunch of approved towns that handle their own shoreline regs and are handing out variances too.

          • Paul says:

            Jimmy, I know what lot coverage and setbacks are. By specific, I mean tell us the specific changes you think would be good. For example go from a 100 foot setback to a 300 foot setback on recreational rivers (that Saranac chain of lakes. Real specifics, that can be debated. This stuff we hear from some groups about “strengthen” or “increase” isn’t very helpful.

      • Paul says:

        Steve, a variance is not that easy to get. I think if you look at the data you will see that they have not given out very many. And some of those are for things like a railing on a deck or some other insignificant project.

  5. Snowshoe steve says:

    That and the Glen are some of the hidden gems of the Adirondacks. I often wondered about the history of that barn. Spectacular.

  6. Charlie says:

    I live a hop,skip and a jump away from that magical place the Adirondacks Ann.
    To answer you Pat:They cut down trees and alter their landscape and light up the night skies because they’re insecure dweebs.How can i prove they’re insecure? Take away their material goods and see how they are then.Let’s face it…we are a society of mindless people.How else can you explain all of the mindlessness? They buy a place in the Adirondacks because they’re able. We’re not taught to appreciate living things…is why we destroy so much.We’re not taught that the soil and water and clean air is more important than Oprah Winfrey and the Yankees and all of the other millionaire entertainer hogwash that distracts us on a daily basis.This is the United States of american idol.

  7. Ti Sentinel65 says:

    If you live in a glass house you should not throw stones. Many are quick to point out what there neighbor does without first looking in their own back yard. Many people that drive through Adirondacks are amazed at its beauty without even thinking that the state does not own all of it. I find it amusing how every one has an answer for land they don’t own.

  8. Paul says:

    True, but the land in question here is private.

  9. Charlie says:

    Sentinel65 says: “I find it amusing how every one has an answer for land they don’t own.”

    Must one own land to know it is being affected negatively Sentinel65.Some owners of land (many) shouldn’t own as they are poor stewards. I’m sure you can go on about all of the horrors you have seen done to private land. My brother has been living in the Catskills on 200 acres of farmland for 30 years now.A few years ago his neighbor sold,and a city person bought,and now a new road is in the woods my brother used to roam,and before long my brother is convinced new houses are going up and out the window goes all of his serenity that he’s had for years because a city slicker sees dollar amounts in land more than he appreciates the beauty and serenity of it.It’s always about dollars Sentinel…or didn’t you know?

  10. TiSentinel65 says:

    Yes John they do, and they are going to be owning more. It seems that many people are ready to argue over the crumbs of small subdivisions and how they could detrimentally affect the environment when they do not realize that a big loaf of bread in the form of the former Finch Pryun Lands has been delivered to their hands. Many people are quick to point out what they perceive to be a threat to what they expect out of the Adirondacks. There are many in the environmental community that view any subdivision as anathema, even though some of the lands that they live on was at one time part of a larger tract. As the state aquires more land, it is only natural that building pressures would be concentrated on the remaining finite acreage. They are not making any more Adirondacks. Dave seems to be hinting that this land would be better suited Forest Preserve. I have always suspected that part of the environmental groups strategy to aquire more land for the state was to use litigation as a means of that goal. A lands profit potential is usually realised when it is developed. If you keep development off of lands through laws and litigation, it then is no where near its potential worth. This does not mean worthless, the state or TNC or Open Space Institute will buy it, just not at what you would like to get for it. It would be the same if someone showed up to buy a car you owned with a baseball bat in hand and proceded to smash the windows out saying they are not going to pay that much money for a car with broken windows. John Muir’s greatest asset was in his power of persuasion. Having seen the forests of his native Scotland long ago fall to the axe, he knew the same could and was happening all across this country. Muir did not need to litigate for preservation, he only needed to convince, and he was quite successfull at convincing President Teddy Roosevelt to preserve many lands that are just as wild today as five hundred years ago. Todays preservationist groups in the Dacks have had more success convincing than litigating. Daves group Protect puts forth compelling reasons for preservation but they need to leave the base ball bat of litigation at home. Dave even though what you are arguing in the article could be factually true and with legal standing, you are taking on the private land owner. Muir was dealing with mostly federally owned lands. Nobody likes to see the little guy get pummeled by groups that seem to have endless finances, to pursue goals for lands that are not theirs. You would do better catching flies with honey.

  11. TiSentinel65 says:

    Charlie if I was your neighbor living across from you, should I be able to claim that your homes existence is detrimental to my quality of life? I mean, should you not be able to enjoy what I also enjoy. Your brothers loss of serenity should not be blamed on the person that actully owned the land. He should blame himself for not owning enough land to insulate himself from neighbors he now can see. In a perfect world we all would own our own Adirondacks. I’m sure some people in Keene will feel that they should not have to suffer the indignation of having more neighbors. Although I can not speak for these people, this type of sentiment comes across as elitist to me.

  12. Jimmy says:

    Ti….it’s precisely the little subdivisions that add up to huge impacts over time. They account for more development in the Park that all the BIg development put together and the little ones don’t afford an opportunity to apply real planning principles to as often the lots are so small.

    • Paul says:

      Jimmy, Yes lots of Adirondack residents (and others) cannot afford big lots.Yes when they develop those lots it has an impact. So you propose that regulations be increased to the point where most of those lots are not usable for development. Only allow the more wealthy individuals with substantial acreage to build on the land. That sounds like a step back to merry old England? It is not fair to strip people of all their ability to use their land, and that is what you would eventually do if you impose restrictions that are too stringent.

      There is lots of protected land, it is increasing every year much faster than land is being developed. Trying to tell any other story is just not being honest. In the Adirondacks preservationists have done such a good job they are almost out of business.

  13. TiSentinel65 says:

    Those impacts will be alot less than say a lot developed fourty years ago. The building codes are much more stringent. Any application for building in the park goes through a pretty vetted process. The environmental lobby wanted it this way. You propose what?, an even higher standard for new applicants. One set of rules for you (grandfathering) another for me. This is the exact reason why people could not stand a hypocrite like Curt Stiles. The reason he is no longer Head of the APA. The rules he pushed for didn’t affect his property. Its easy when you do not have any skin in the game. I wonder how he would have felt if somebody proposed retroactive implementation of those rules. It is quite convenient for the established to blow out of proportion the impacts of their proposed neighbors.

  14. Charlie says:

    If i was your neighbor living across the street from you Sentinel you can be rest assured i wouldn’t be spraying toxins to purty up my lawn so you can woo the superficiality in me.I wouldn’t be cutting down trees because i dread the thought of having to rake leaves again.I wouldn’t clearcut a swath of my woods just to get a better view of the valley or mountains yonder ways.I would exert extra energy to do what’s right and to keep my pollution to a minimal at best.I’m the guy who puts out a sacfifice tomato plant so the critters go to that instead of the rest of my crop…instead of poisoning them or killing them outright. In a perfect world we would all be taught to respect and appreciate,and go out of our way,to prserve what remains of the fragile eco-systems that remain on this planet earth,the only home we know.

  15. Jimmy says:

    Ti…wow you really took that ball and ran with it. Well, how about this: It’s NOT FAIR that people get to ruin the water in lakes ponds rivers and that which is unddground which feeds my well. I don’t care if yu are rich or poor, without adequate protections laid out in the law, many people will just take and use without any concern whatsoever for the pollution flowing downhill from their own pleasure. So there.

  16. TiSentinel65 says:

    Society as a whole contributes to pollution. You can take the high ground when you shun the burning of anything to heat your house. Stop using the computer your typing on, the heave metals used to make circuit board came from a mining industry that blasted the earth apart to get at the ores, and the power plants used to supply you the power use alot of oil to run their boilers. Don’t use any paper products.Give up on the products that contribute to pollution and then your arguments hold more meaning. Stop blaming your neighbor for your own actions that directly contribute to the problem just like every body else.

  17. bob says:

    https://www.adirondackdailyenterprise.com/page/content.detail/id/529819/APA-to-decide-Lake-Clear-rezoning-Thursday.html?nav=5046

    Long story short, the APA was lobbying on behalf of the landowners for a change in zoning.

    Also of note is the huge decline of people working at the APA. More political appointees and less staff. They may have already turned the corner and been made over into the “real estate developers consortium”.

    Thanks you for the story.

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