Monday, October 1, 2012

Confusion Over Development Rights

At the Adirondack Park Agency (APA) monthly meeting in September, Fred Monroe of the Adirondack Park Local Government Review Board made some very confusing statements about transferable development rights, or TDR.

He expressed the notion that annually leased hunting and fishing cabins on the former Finch Pryun lands constitute a guaranteed building right which can be transferred elsewhere “for affordable housing and for facilities needed for tourism.” The state’s acquisition of these lands for the public implies a loss of forestry jobs and taxes, he argued, which should be compensated by transferring building “density” to help the local tax base somewhere else. He further confused matters by stating that eventual loss of some of these camps would deprive Newcomb, for example, of places to stay overnight.

First, all of these hunting camps exist as leases with the landowner, The Nature Conservancy, formerly Finch Pruyn. They’ve been forever closed to non-club members, so their closure after their lease agreements expire will not make one bit of difference to the average overnight visitor to the central Adirondacks. While  new overnight lodging for recreational tourists may be needed here, that need is unrelated to forestry leases.

Furthermore, every lease club was given the opportunity by the Conservancy to move their camps off of the lands headed to the Forest Preserve, and onto the more than 90,000 acres of conservation easement land. Some leaseholders agreed to move, others did not. Any failure for not “transferring” some of these camps elsewhere lies with the clubs themselves, a fact Monroe fails to mention.

But, here’s what’s fundamentally confusing about Monroe’s notion of transferable development rights off of the former Finch Pruyn lands: once the state acquires the land, the development rights will not exist.  The state will acquire the former Finch Pruyn lands using public funds through transaction with The Nature Conservancy, the landowner compensated according to terms of a legal contract. Once transacted, all of the bundle of rights that come with full fee landownership, including the right to develop the land, are sold to us, the people of New York State.  As soon as title passes to the state, the land becomes Forest Preserve, forever to be kept as wild forest land under the terms of Article 14, Section 1 of the New York State Constitution. All development rights are purchased and extinguished at that moment; thus, to imply that such rights still exist and can be transferred elsewhere is to ignore the law. Thanks to a longstanding but separate statute, the lands of the state remain taxable for all purposes.

To be clear, the camps under a certain size are not defined as principal buildings by the APA Act, and in some cases are not even calculated in the APA’s overall intensity guidelines (OIG). Even if their size qualifies them as principal buildings, under the APA’s Land Use and Development Plan there is no legal right to develop, but an opportunity to develop up to an overall intensity of land use, for example 15 principal buildings per square mile on Resource Management, or 75 principal buildings per square mile on Rural Use. The Act and the implementing regulations state that developing up to this threshold on a given tract of land is not a guarantee and the Agency must take into account a number of other considerations and potential constraints on development.

The next time Fred Monroe, or anyone sitting at the APA’s table, speaks of transferable development rights, I hope it will be a substantive, lawful, pragmatic and comprehensive discussion about how to better protect backcountry lands in Resource Management and Rural Use by transferring some of the building opportunities off of these lands and onto available and better-suited Moderate or Low Intensity lands where the Act intended to concentrate development in the first place; and how to fairly and pragmatically treat landowners, local planning boards and communities who wish to engage in such a program.

Adding this land use and conservation planning tool called TDR on a regional scale could be of great benefit to the Adirondack Park’s built and unbuilt landscapes, but it requires careful thought, planning preparation, and comprehensive legislation discussed by all parties well in advance of any bill drafting.

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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.




22 Responses

  1. Dan says:

    Well put Dave. Thanks for the insight. The APA has become a joke recently at their job of protecting the ADK while simultaneously assisting with economic growth. They’ve virtually given up the former on so many issues recently.

  2. Paul says:

    “The APA has become a joke recently at their job of protecting the ADK while simultaneously assisting with economic growth.”

    Dan, the APA is not a preservation group as some would like to portray it. What you say here is a “joke” is exactly what the legislature intended. From the Act:

    “The basic purpose of this article is to insure 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.”

    Sorry, it is not all about protection.

  3. Paul says:

    Dave, there are “development” rights on some of these easement parcels that could be used for a TDR. For example on the “Champion” easement lands the owners have the right to not only the 220 cabin sites, but also for some other larger structures (I think these were retained in the current easement structure). I think there was also a parcel that is permitted for the development of a mill?

    But like you say on the FP land all the development rights are conveyed to the state with the deed. And based on state law those rights are then pretty much extinguished.

    All land that is purchased by the state (even in the Adirondacks) does not have to be added to the Forest Preserve if we wanted to do something else with it. There is lots of precedent there.

  4. John Warren John Warren says:

    The idea the APA “is not all about protection” is revisionist history. Any recent history of the Adirondacks that covers the creation of the APA will confirm Paul interpretation is mis-leading.

    I suggest getting a copy of Barbara McMartin’s Perspectives on the Adirondacks which calls the APA act comprehensive protection legislation and the agency the author of THE plan to “regulate development on private lands so that it would not threaten precious public land.”

    When the Adirondack Park Agency Act references “development” it is in the context of limiting development.

    Read the Act’s “Statement of legislative findings and purposes.” For example (although there are many others):

    “In the past the Adirondack environment has been enhanced by the intermingling of public and private land… This fruitful relationship is now jeopardized by the threat of unregulated development on such private lands.”

    • Paul says:

      yes, that is a good book. It does a good job of documenting the fluid nature of how these agencies have tackled their mission.

      John, I am not “interpreting” anything that is how the act is written. Why would the agency have an “economic services unit” if it was not somehow involved with economic development? Why would they assist you in getting grants for development projects?

      It seems to me like maybe your “interpretation” is the one that is somewhat misleading.

    • Paul says:

      “When the Adirondack Park Agency Act references “development” it is in the context of limiting development.”

      John, that is an interpretation that you and others make that simply isn’t based on the facts.

      Look one of the main goals of the Act and the regulations that it generated is to specifically describe how and where development should take place. It isn’t much different in concept to any other zoning agency tasked with regulating development. This stuff about it “limiting” development is a fabrication.

  5. John Warren John Warren says:

    “All land that is purchased by the state (even in the Adirondacks) does not have to be added to the Forest Preserve if we wanted to do something else with it. There is lots of precedent there.”

    Wrong again Paul. Lands acquired by the State in Forest Preserve counties are automatically made part of the Forest Preserve, protected by the NYS Constitution:

    “The lands of the state, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands.”

    Read The Forest Preserve by Eleanor Brown for a review of many of the thousands of attempts that have been made to abrogate the Forest Preserve only about 30 actual amendments have reached the ballot, and only about 20 actually passed.

    • Paul says:

      John, yes the law is written that way. But the state owns many parcels of land within the Catskills and Adirondacks that are not Forest Preserve land. For example isn’t Camp Gabriels near Paul Smiths currently owned by the state for sale? (Didn’t Dave have an article here commenting on that transaction).

      • David Gibson Dave Gibson says:

        You are quiet right, Paul. There are quite a few parcels of land deemed not to be Forest Preserve by Legislators and Administrations in the past relying upon constitutionally questionable statutes passed in the first half of the 20th century – although there has yet to be a significant court challenge to these. In acreage they don’t add up to much. If today’s State government attempted to purchase land in the Adirondack or Catskill Parks and declare it in the deed as “non Forest Preserve,” I think there would be a significant court action on its hands.

        • Paul says:

          Dave, if some of those transactions were “constitutionally questionable” then we would all benefit from letting the court settle the matter (assuming that there is one). Too bad there hasn’t been a challenge yet.

          Dave hasn’t your group (or at least maybe an older version) supported some of these swaps of Forest Preserve land here for other land there. So there the supporting what might be “questionable” is alright as long as the outcome has a benefit you are looking for.

  6. Guest says:

    Dan, I read somewhere that for every 47 acres of private land, there is one building right. Is that correct?

  7. Solidago says:

    The APA must be doing something right – it infuriates everyone at the same time!

  8. Guest says:

    So if there is one development right of 1 acre for every 47 acres of privately owned land, then there are almost 1400 lots that could be traded or transferred, unless the state buys the land before they are transferred, then according to the constitution, the state is prohibited from doing so.

    If this is true, then why wouldn’t TNC transfer the rights to the local towns before they sell the land? Does it affect the value of the land?

  9. TiSentinel65 says:

    John it does not mean limiting development, rather it means meeting the complimentary needs of the people of the state, using optimum conservation as a tool. Now go and try and define the threshold of what this means, asking ten different people and I am sure you will get ten different answers. You can cherry pick statements out of the “Statement” all you want. When you boil it down in lay mans terms, all this statement does is provide the basis for a regional planning board, the APA. For anybody not familiar with the APA act, go to Laws of New York on search. Look up Executive laws Article 27. Section 801 refers to the Statement of legislative findings and purposes. This is what John is talking about. The real meat and potatoes are found in the rest of the act. This is the stuff that makes lawyers rich and makes many people on both sides of the Great Adirondack Land Use Debate very angry. Given the way it is written, the act can be interpretted to be flexible or ridgid. It depends on what judge interprets it. Sometimes you win sometimes you lose. Laws that have to be constantly challenged in court do not serve either parties interests. It is much better to write with the intent to be clear and concise so people actually understand how the law actually applies to them.

  10. Phil Brown says:

    When development rights are transferred, it allows more building in the receiving area than the law ordinarily allows. So rights cannot be transferred without a legal mechanism in place. Thus, TNC could not transfer development rights before selling to the state. Development rights constitute part of the value of any tract, so other things being equal, land without such rights is worth less than land with them.

    • Paul says:

      Yes, in a sense you are not “transferring” but “selling” in a way those rights when you sell a conservation easement. I wonder how this would work in the Adirondacks? It is pretty easy at the “transfer” end. But complex at the “receiving” end. You would have to make sure that you are buying a “right” that you could actually use if you wanted to exercise it. If you are a conservation group that was just planning to “retire” the right no problem. But in the former case you would have to go through a variance process that would allow you to determine if you could increase development at the receiving end. It is not just size of a parcel but setbacks, wetlands restrictions, many other things.

      I think that if conservation groups wanted to do it they could find many private landowners that would be very willing to sell their development right for a price. many people in the Adirondacks are selling their property for development because it is one of the few assets they have. That is why when it is “taken away” in a sense through increased regulations they get so upset.

  11. Dave Mason says:

    As I understand it, for all practical purposes today you cannot sell or otherwise transfer building rights (yes, they are called building rights). So, TNC cannot do this today. There is an effort to pass legislation to make this legal and details are being worked on…..for example, tranfers can only be within towns, not across town boundaries….and other details.

    The attraction is that a well written law would keep more back country openi the future.

    • Lily says:

      Dave – Building rights can in fact be transfered between properties in the same zoning classification under current APA law. The porposed new legislation seeks to allow transfer of building rights from one land use calss to another – as long as you are moving them from a more restrictive class to a less restrictive one. For example – from Resource Management (42.7 Acre zoning) to Rural Use (8.5 Acre zoning). This allows concentrating development in and aorund current hamlets/villages which follows the keystone principle of the private land plan under the APA Act.

      • Paul says:

        Lily, concentrating development in hamlet areas is not a “keystone” principal of the APA Act. You are confusing the APA act with the mission of the Adirondack Council and other environmental groups that state this specifically as a goal.

        Yes the act allows for higher density development in less restrictive areas, so you can say that it “concentrates” development but it also allows some level of development in these other areas.

        I doubt that the act would have a “single family dwelling” as the number one “primary use” for Rural use areas if they did not expect them to be used for this purpose??

  12. Jimmy says:

    Good article Dave. Clearly Fred Monroe is beyond his expiration date and needs to retire. Based on the comments here, seems there’s a lot of confusion on the topic of building rights. APA Act currently allows for transfers within certain limitations. And often the dollar value of a conservation easement which extinguishes the building potential is based in part on the number of building rights associated with the land.

  13. Guest says:

    Dave, if you removed your opinions about Fred “further confusing matters”, then you’d have a decent piece of writing. His statements are factual. Your opinions are not.

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