Saturday, November 30, 2013

Commentary: Implementing a New APA Land Use Policy

APA officeMy last column in this APA series was a proposed new land use policy organized around a consensus-driven process with a development plan and ecological assessment as the primary inputs and a design that maximizes both ecological protection and the profitability of the project as the desired output.  I expected a number of less-than-receptive comments but instead I received a lot of good ones including some questions and challenges that I hope are at least partly answered this week. 

I did get one flame-throwing contribution from a Tupper Lake Realtor (I did a little Googling on his name) who was content to repeatedly call me an elitist, impugn a venerable Adirondack family and rue that he couldn’t get his mitts on Lost Brook Tract to develop it for whoever’s benefit.  Nice work.  I wrote him back asking him for his preferred version of Adirondack land use policy but no dice.  The way I see it, I could choose to give up writing on this topic because we’ll never get anywhere with people like that out there, angry and bitter at what they see as the unconstitutional, un-American construction we call the Adirondack Park.

The reason I bring this up is that in my view we ought to pay some attention to this gentleman.  Oh sure, with his tone he might not deserve it in this forum.  Certainly his nasty insults directed at specific people other than me deserve condemnation.  But there’s undoubtedly a reason he’s so angry and it should not simply be ignored.

For example, there’s a reason he wrote “I really enjoy your glib misinformed ideas about reforming the APA into a more restrictive unconstitutional agency without having to go thru a legislative process.”  At the end of the Strengthening the APA Conference when former Commissioners were making their comments there was a clear divergence on the question of whether improvements to the APA required reopening the Act.  No less than Bill Kissell, original APA staff counsel, cautioned against implementing policy without revisiting the Act because of the damning appearance of a powerful government agency ruling by “administrative fiat.”  That is of course exactly what our realtor in Tupper Lake was worried about.

John Collins, former APA Chairman, countered with the observation that the Act was built with a lot of leeway.  Indeed the Act has explicit language to the effect that the APA is granted a great deal of latitude in the details.  My proposals would be impossible without that latitude, yet I fully understand Bill Kissell’s caution.

Fortunately we have a new kid on the scene, a venue where the development of policies can be conducted in an open and inclusive manner with the representation of wide-ranging interests: The Common Ground Alliance (CGA).   The APA itself endorsed the CGA as a conduit for developing land use issues and recommendations at the recent conference, along with Assemblyman Dan Stec and others in attendance.  Therefore the idea to use them is nothing new or radical.  Involvement of the CGA, a key part of my proposed strategy, means the accusation of administrative fiat is harder to make.  It also means that charges of elitism per my Tupper friend (which as they pertain to me are of zero consequence but as they pertain to land use and the APA permitting process are certainly relevant) are likely to have weaker legs.

My proposed approach to land policy is built around a model of consensus-based negotiation that some would likely find controversial.  For example,  the involvement in the process by experts outside of the developers and the APA itself, or the veto power possessed by any party in the design process might be hard for some to swallow.  Much of that concern is mitigated if one understands how consensus-based negotiation works.  I have a link to resources that do that later in the article.  The CGA can really help us to navigate through these kinds of issues, especially when the alternative is no progress at all.  We are wise to leverage them.

But now I risk the criticism of some of my environmental friends who seem with their rhetoric to think that the CGA is to the Adirondacks as Neville Chamberlain was to Europe in 1938.  Here on the Almanack and elsewhere I have seen the CGA painted as a group of people thrilled about “fair and pragmatic” ideas like the NYCO amendment, ready to grab more Forest Preserve in the name of “balance,” using land banking or some such other scheme.  To some the CGA, in its quest to appease, would give away too much.  That point of view is one with which I have very little patience but I’ll let it rest for now.

Before getting to implementation details I need to do a little scoping.  In Section 809.1 The APA Act distinguishes between major and minor projects:

For the purposes of this section, “minor project” shall mean any individual single family dwelling or mobile home or any subdivision involving two lots, parcels or sites.

Minor projects so defined are not in the scope of this discussion but they are very important because most development in the park fits this definition.  Opponents of the Adirondack Club and Resort can can worry as much as they like over the potential environmental impact of that project but it is the single lot developments that threaten to have the biggest impact, one by one.  I will come to some ideas about them in my next column in this series.

The most important question in terms of implementing the ideas I proposed in my previous column is where to fit it into the existing APA Act.  The Act has an explicit process and timetable once an application has been made to the Agency and deemed complete.  It would be impossible to make any substantive changes from that point forward without reengineering the Act.  However Section 809.2.a has the following language:

Any person proposing to undertake a class A regional project in any land use area, or a class B regional project in any land use area not governed by an approved and validly enacted or adopted local land use program, shall make application to the agency for approval of such project and receive an agency permit therefore prior to undertaking the project. Such application shall be filed in such form and manner as the agency may prescribe.

The underlined emphasis is mine.  From there the Agency must decide if the application is complete.  This is from Section 809.2.b:

On or before fifteen calendar days after the receipt of such application the agency shall notify the project sponsor by certified mail whether or not the application is complete. For the purposes of this section, a “complete application” shall mean an application for a permit which is in an approved form and is determined by the agency to be complete for the purpose of commencing review of the application

In other words, there is leeway in determining what a constitutes a complete application as well as the process to get to one.  I must offer a disclaimer here: I am not a lawyer nor am I an expert on the APA or the APA Act.  However this seems to be the best place, both from a legal standpoint and a process standpoint, to incorporate the new approach I outlined.

From here it will be useful to refer to my previous column.

First there needs to be shared fund established to pay for the ecological site studies and business analyst reviews.  The mechanism for this must obviously be enabled other than through the APA Act.  The CGA is the right forum to begin determining how to build and fund this pool.

A good place to start is the State of New York, which has been happy of late to provide grant funds to spur economic development in the park.  Smart, conservation-designed developments that get permits and not long delays and/or lawsuits mean economic benefits.  There are also other regional funding systems and as well a reasonable expectation that stakeholders – developers, realtors, environmental groups – should contribute.  Most projects will not need super-thorough ecological site surveys in order to determine what would constitute an intelligent ecological design; only a few would likely require the full boat.  So we’re not talking  a great deal of money here.  By tapping these various sources and spreading the burden, the individual contribution to the fund by a business or green group would be small.  It would, however, put a monetary value on the crucial idea that environmentally intelligent development is a responsibility all in the region share.

Next there needs to be an agreed set of scoping criteria for an application and a method to determine who are the parties to the design process.   I again propose the CGA as the right group to help develop these criteria, to then be adopted and applied by the APA.

The scoping criteria would be applied to any potential application to objectively determine the extent of the ecological survey and the business and economic analysis to be required of the project. This is turn would determine the parties to be involved in the negotiation to achieve a consensus design.

Next there would need to be an approved list of individuals and/or firms to conduct the ecological site survey, the business and/or marketing analysis and the educational sessions.  Approved vendors should be placed on the list using a set of objective criteria that could once again be developed by the CGA.  The APA can maintain the list but the criteria will mitigate and help to answer (though probably not entirely avoid) charges of bias.

The scoping step would determine the parties at the table based upon the level of work needed.  In most cases the parties would be the minimum required: the APA, the developers and the scientist who conducts the ecological site study (along with a second expert selected and paid for by the developer, if they so choose).  Each of these would have voting power at the end of the process.   At the high end the parties could include business analysts, recreation design specialists and other experts as required by the specifics of the project.  These added members might have voting power or might be non-voting participants, this to be determined by the APA based upon the depth of their role in the process.

This design group would be tasked with determining a design that was both profitable for the developer and protective of the ecological integrity of the parcel.  The final recommendation on a lot design, which would be a requirement for a completed application, would need agreement from all voting parties.  That means any voting party could veto the proposal with a no vote and the team would need to continue work to develop a better proposal.

For people unfamiliar with consensus-driven negotiations, this setup might seem hopelessly unwieldy and fraught with opportunities for parties with an axe to grind to submarine the process.  Part of the answer to that is the scoping step and the criteria that guide it: parties with axes to grind don’t get to the table.  But it is also true that in practice this kind of negotiating methodology is quite effective.  In this case we really are not talking about the same scale of negotiation for which this methodology is typically employed (frequently labor-management disputes) and strictly this isn’t a negotiation anyhow – it’s working together to get the developer to a permit-able, profitable project.  However the basic principles would be effective in resolving potential disputes over lot design.

One contemporary version of this negotiating model is called Interest Based Bargaining (IBB).  For those who are curious I direct them here, where they can get a good feel for its elements and power.  Cornell University is one of the centers of expertise for IBB, thus a helpful resource for implementation, including expert facilitators, is relatively nearby.

Once the application was deemed complete the process would continue essentially as it currently stands.  Outside interests would have all the current methods for review and relief, including court action, that they currently enjoy.  However, the thoroughness and inclusiveness of the process to develop a completed application should greatly reduce unpredictability and potential challenges later.

This is all food for thought, nothing more than than and certainly not expert.  But I do hope it answers some questions, even and especially those challenges from my critic in Tupper Lake.  We have to be able to find a way to move forward with a better land use policy that supports interests from perspectives we may well not want to see together in a room.  But the truth is that we are already together in a room.  So let’s get to work.

I welcome your comments and ideas, as always.

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Pete Nelson

Pete Nelson is a teacher, writer, essayist and activist whose work has appeared in a variety of Adirondack publications, and regularly in the Adirondack Almanack since 2005. Pete is also a founder and current Coordinator of the Adirondack Diversity Advisory Council, which is working to make the Park more welcoming and inclusive.

When not writing or teaching mathematics at North Country Community College, Pete can be found in the back country, making music or even walking on stilts, which he and his wife Amy have done professionally throughout the United States for nearly two decades.

Pete is a proud resident of Keene, and along with Amy and his dog Henderson owns Lost Brook Tract, a forty-acre inholding deep in the High Peaks Wilderness.




3 Responses

  1. Matt says:

    Gets complicated the more you dig into it, eh Pete? How do you think this plays into it:
    http://mobile.reuters.com/article/idUSBRE95O0XM20130625?irpc=932

    That’s food for thought too.

  2. Paul says:

    I wonder how all this would effect how the property could be valued? Now you look at a parcel and you look at the code and you say I can build this number or that number of buildings when I get a permit. There are issues related to setbacks and wetlands that you must take into consideration but you have a pretty good idea of what you could do with the property as far as development. If this all goes on after the fact it could greatly effect what the perceived value of the land is.

    Looking forward to how you can craft a way to do this for single shot development. I can’t imagine how a “ecological site survey” or something would work for someone that say wants to build on their 5 or 10 acre parcel? If something like this were the law I would think that you need to know the result of the survey before you would ever want to buy the land? Pete, could you explain some how this would work?

  3. Paul says:

    Some of the “fear” that people have regarding changing regulations is about what might be “next” after a proposal like this. The right “expert” could easily judge that any parcel is far too ecologically sensitive to allow development. For example with the ACR project that is the first time that I had heard the issue of an “amphibian survey” suggested. Once you determine that there would not be an impact of the amphibians what about other smaller organisms? One house could easily wipe out a whole community of rare soil dwelling bacteria for example. How close should we look into the ecology of a particular parcel?

    As far as changing regulations and the Act itself I was surprised that it did not require a change in the act to put all the pre-1973 shoreline structures under the act. That seemed like a compromise that was a foundation of getting approval of the Act itself? To just reverse that with a vote was interesting. That vote stripped considerable value out of those Adirondack properties. Would this change do a similar thing as far as limiting now what can and cannot be developed?