Saturday, November 9, 2013

Compromise, Consensus and a New Land Use Paradigm for the APA

APA officeAs I began to think about my series on the Adirondack Park Agency, my discussions with people elicited a wide variety of comments.  My topic over the next two weeks, land use policy, generated some skepticism from people who have been around the proverbial block on this issue.  “If you want to be buried in angry commentary, write about zoning,” went one.  “Private land use is the third rail of Adirondack politics,” went another.  These sentiments are not news to anyone.

But there are other comments I have heard over the last month. Here’s one: “I’m not opposed to development; I’m opposed to pollution.  Development is development, pollution is pollution.”  That quote, from the Strengthening the APA Conference held at the end of September came from an environmental advocate some would consider strongly anti-development.   Then there’s this: “Policies that protect the most appealing and beautiful parts of the land we’re developing, like clustering, make sense to me.  I want strong land value.”  That one is from a developer and contractor in the park, said to me over coffee a few weeks ago.  Or how about these vicious salvos (paraphrased as I didn’t write down the exact words):  “We should always be doing that sort of thing” (conservation design) and “I never understood why the APA allows houses that big to be built; there should be a restriction on size.”  Those two are from a real estate developer and realtor I know.

Fool that I am, do I sense some potential common ground?  You already know I do.  More than that, I think it’s obvious.  Some say environmentalists want to stop all development in the park.  Some say developers want to make money without regard to the environment.  That kind of rhetoric is obscures the simple truths which speak better to who people really are.   Developers and realtors of my acquaintance love the wild Adirondacks as much as anyone.  They don’t want to destroy it any more than I do.  On the other hand, several environmental types also of my acquaintance own nice homes in the woods and some have even built on their lots – horrors!  They are as likely to enjoy a nice meal in Lake Pleasant or Elizabethtown as anyone else.  They don’t want towns shuttered any more than other local residents do.

I have written before about the critical distinction between compromise, where potentially nobody wins, and consensus, where potentially everybody wins.  There is a huge, often misunderstood difference between these two things and it lies at the root of many of our Adirondack debates.   I think it also lies at the root of many potential solutions.  In this case I think it points to land use policies and regulations the Adirondack Park Agency could implement tomorrow, to the benefit of both developers and the environment, with an assist from some of our friends in the scientific community.

Let me give an example of what I’m talking about using a hypothetical land use scenario.

Imagine that a development group owns 1,000 acres of land almost all of which is classified as Resource Management by the APA.  It has prime habitat for multiple species of wildlife, including some that are rare or threatened.  The property has mixed forests and wetlands and meets the paradigmatic definition of “open space.”

The developers want to build 20 large camps on the land, each on 45 acre lots, which, according to average lot size requirements for Resource Management lands, they can do.  They have good reasons for wanting this many camps, not the least of which is profit.  They have in mind a recreational facility to be shared by the owners of the camps.  In order to justify the cost of developing this facility, plus the cost of infrastructure, new roads and so forth, they must have that many lots and they must sell 80% of them over the twenty year investment life of the project.  These figures form the basis of their business plan and, more importantly, form the basis of their appeal to investors.

The developers want to preserve the scenic beauty of this land as well as privacy for the owners.  They like the large lot sizes for that reason.  They have created design guidelines that will keep most of the structures they build invisible from any vistas or from each-other.  They have avoided building adjacent to the wetlands and they are not allowing development along the ridge line running through the property.  From their perspective the development plan shows good environmental stewardship.

Environmentalists want to reduce the size of the development.  They see major problems with fragmentation of what is currently a largely intact ecosystem.  Various parts of the property have been logged at different times over the decades leading some to suggest the land is not valuable as wilderness.  But forestry experts point out that much of the land has recovered to a state of relative ecological health.  Furthermore they know that the disturbance from building out these lots will be far greater than was ever caused caused by logging operations.  The permanent disturbance zone around a house – the area in which the normal cycles of some wildlife are disrupted – can extend for more than 150 yards in every direction, meaning that each camp will have a disturbance zone of between 20 and 30 acres.  That acreage spread out over all the lots will disrupt virtually the entire parcel.  As a result some of the threatened and endangered species on the property will likely disappear.

Environmentalists are also concerned about the effects of so much infrastructure, from road building to utilities and septic.  Storm water runoff along roads and driveways is a big concern as the wetlands on the property are lowland boreal ecotypes, very sensitive to runoff.  These wetlands harbor spruce grouse, an endangered animal in New York State.  Finally, despite the developers’ good intentions with respect to wetlands and ridge line development, their current design looks as if it will cut off existing wildlife corridors in several places.

The permitting process is contentious.  Each side takes a firm position based upon their needs.  The developers, citing their right to make a profit and develop land they own within reasonable parameters,  make a specific demand of 20 lots but say they are willing to reduce lot sizes a little bit and set aside 250 acres from any development.  Environmentalists, citing the ecological health of the park, biodiversity and open space character, demand a maximum of 12 lots on smaller lot sizes and a conservation easement on more than half the land.

Imagine that a compromise is reached which grants the developers a permit to build on 16 lots with the requirement that they conduct a storm water runoff study at a cost of $75,000 and establish a 300 acre zone that will be protected by a conservation easement.

Is anyone happy with this compromise?

I don’t think the developers are happy.  16 lots constitutes a 20% reduction from their plans and thus a significant dent in their ability to make money.  At a minimum a new business plan will be required and potential investors may balk at the reduced forecast for revenues.  Furthermore the storm water study will cost money and may lead to onerous expenses incurred to mitigate runoff damage; therefore the developers’ risk goes up as well.

I doubt the environmentalists are happy.  The 300 acre protected parcel is nice but 16 lots spread over 700 acres, each with a 20-to-30 acre disturbance zone with all the attendant infrastructure, will mean a severe ecological impact.  The property will be irreversibly damaged,  even though the number of lots has been modestly reduced.

Each side has compromised on its demands – and each side has lost.  Each side has less reason to want to bow to the demands of the other in the future.  In the big picture we have at best a stalemate and at worst a further erosion of any potential working relationship down the road.

One of the fundamental ideas in consensus-driven negotiations is that the parties never begin with demands.  After all, unless the demands are identical, consensus is impossible a priori.  Instead an effort (and it can be quite an effort) is made to delve into the interests, needs and desires behind the demands each party is making.  Rooted in these interests are principles and rights which are not to be compromised.  But interests are more flexible than demands and lend themselves to outside-the-box thinking.  The result is more fertile ground for mutual understanding that allows for solutions that preserve principles.

So let us return to the scenario above.  What are the interests of the developer?  Profit is the main one.  An aesthetically appealing development is another.  What are the interests of the environmentalists?  Ecological health and the protection of wildlife along with preservation of open space.  Let’s shelve the demands and ask a question: are these interests actually fundamentally incompatible?  Let me ask another question: would you rather buy an Adirondack home sitting in a cookie cutter development or one that was surrounded by pristine wilderness teeming with wildlife and possessing fabulous views?  Would you care either way if your nearest neighbor was invisible at a distance of 150 feet away versus 1,000 feet away?  For that matter might you prefer an actual neighbor, with the chance get to know their kids and their dog?

Now let’s consider an alternate process for the above scenario.  The developers begin with an interest to protect their profit.  The environmental groups begin with an interest to protect the ecological health of the property.  The first step in the process is a mandatory ecological site survey that produces a detailed profile of the land including sensitive areas, wildlife corridors, rare species and other biological and natural features.  This site survey is paid for out of a fund established and maintained by environmental groups, developers, realtors, businesses groups and state government.  This fund functions essentially like an insurance pool, spreading the costs of surveys.  Thus the specific cost to the developers to perform a survey on a given project is zero.  The site survey is conducted by an accredited organization selected from a list approved by the APA.  The developers, at their discretion – and dime  – can have an approved outside party participate in the site survey.

The results of the ecological site survey then serve as input to an assessment and design process that has the stated objective of maximizing both project profitability and ecological protection.

The final recommendation uses the ecological inventory to locate and cluster 20 lots along a stretch of land that is less sensitive and near the existing access road.  The recreation center is centralized.  Lots are designed without the limitation of a rectangular cookie-cutter approach: houses are spaced between 150 feet and 200 feet apart, enough for privacy but reducing the development impact dramatically.  In any direction away from an adjacent house the lot owner has reasonable freedoms in land usage extending to about the distance of the house’s disturbance zone.   Beyond that limit all property is protected by conservation easement. The remainder of the land is put under a shared ownership structure, increasing the net acreage available to owners for recreation and scenic beauty.

Environmentalists win: their interests are met.  This solution centralizes and overlaps disturbance zones and correspondingly reduces the amount of road and infrastructure development needed, reducing the net disturbed area to a surprising total of between 65 and 70 acres (I did the actual calculations).  The remaining approximately 930 acres, including all the sensitive areas, are protected in perpetuity by conservation easement.  Wildlife corridors are preserved.  Threatened species are protected .  The carbon footprint is reduced over the long term, reducing the impact of builders and residents alike on the climate.

The developers win: their interests are met.  They get all 20 lots and the thus opportunity to make a full profit.  Shared ownership of scenic and wild lands increases the value of the lots and makes the development appealingly unique.  Shared lands have hiking and ski trails and other compatible amenities, all incorporated into the conservation easement.  The clustered development dramatically reduces road, utility and infrastructure costs.  Sewage handling is much easier.  Storm water damage is minimized by design, eliminating a risky wild card.  Tax benefits from easements provide additional incentive to buyers.  The development maximizes scenic beauty and aesthetic appeal and it can be promoted as ecologically sensitive, or “green.”

In other words, everyone wins.

None of this new or is in any way my idea.  This approach is a well-established and successful land use strategy typically referred to as conservation design.  It is has become quite popular elsewhere but it is known as well in the Adirondacks, including by the APA.  Conservation design was one of two main themes at the Strengthening the APA Conference where its leading proponent, expert Randall Arendt, spoke about it at length.

But conservation design is not the default land use paradigm in the Adirondacks.  Not yet.  That’s where this commentary comes in.  Naysayers will contend that the issue is too controversial to allow any headway.  Overcoming that point of view is a matter of approach, not just a new land use strategy.  Success happens when the work begins from positions of interest instead of specific positions. That is the difference between contention that grinds its way to an unsatisfying compromise and contention that starts with an acceptance of all parties’ interests and leads to a consensus.

Is this naïve?  Not at all.  These kinds of wins, born of interest-based approaches and using state of the art conservation design principles are occurring throughout the country.  What’s needed for it to happen here is leadership, incentive and the power to bring parties to the table.  I know an agency that can provide all of that.  What if an interest-based process incorporating conservation design principles like the above example was mandated by regulation and became part of the APA permitting procedure?

Some will say this is politically impossible.  I beg to differ.  Next week’s article will offer a specific and detailed proposal for a new APA land use policy that can make this approach a reality in the Adirondacks.

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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.

14 Responses

  1. AdkBuddy says:

    If my math is right, a disturbance zone of 150 yards equates to about 15 acres. By using the word ‘can’ you appear to bump this up to 20 to 30 acres. I understand your argument, but question your assumption. I see that you are a math teachertoo. This is my calculation: 150 yards = 450 feet. Area of a circle is pi r squared. R = 450, squared = 202,500 times pi (3.14) = 635,850 sq. ft., divided by 43560 sq. ft per acre = 14.6 acres. If I am missing something on the math part I would be happy to recalculate. I live and work year round in the Adirondacks by choice, and certainly support reaching true common ground.

  2. Pete Klein says:

    Since I am not a land use expert, I won’t try to be by playing the numbers game.
    I will point out something concerning the “back country” that I believe will increasingly push down its value now and in the future. You might call it the elephant in the room.
    I’m talking about “being connected” – being connected to high speed internet, cell phones and satellite TV. These amenities are fast becoming essentials with the same level of importance as electricity and indoor plumbing. To what extent they are available in the Adirondacks, they rapidly diminish as you move away from town centers.
    I imagine there will always be those who want to own their piece of the woods. But we all own the whole darn Forever Wild and can easily access it any time we want from town center.
    If you want to pay big bucks for the illusion of living in your own private wilderness, go for it. But remember your kids, probably your wife and members of your extended family too, would prefer to watch TV or get on the Internet while you are outside staring at all the trees you bought.

    • Pete

      As to the importance of broadband, indeed. I support policies up to and including constitutional changes to support environmentally sensible methods to wire the park, including remote properties. Stay tuned for a future column on that.

      However I think you’ll find that the availability of high speed connectivity to the Internet will increase both demand and value for these remote properties, not decrease it. Market studies and trends across the country demonstrate exactly that.


      • Pete Klein says:

        Everything about broadband is distance. Cost of distance relates directly to number of people served.
        Just as it costs a lot of money to run a road and run electricity farther and farther from the main road and lines, the same is true of broadband.
        Actually, personal opinion, I think anyone who wants to pay for waterfront is a complete idiot. It is not worth it. Unless you own the whole damn lake, you lose privacy.
        Being way down a road that isn’t a town road requires you to pay a lot of money to get plowed out.
        Again, if you want to spend money for the illusion of owning a piece of wilderness, go for it. But don’t you dare complain about taxes.

      • Paul says:

        Some of the debates about cell towers and their aesthetics is interesting. What I find ugly are all the power poles and other “wired” stuff. When I lived out west I loved the way most of our utilities were buried underground. But it isn’t too easy to dig in the Adirondacks. If a cell tower means fewer wires I say go for it.

        One of the first thing that potential renters will ask you about a “remote” Adirondack camp is “does it have cell coverage” It definitely has an impact on value.

  3. Dale Jeffers says:

    AdkBuddy, your math is correct. Note that Pete said “more than 150 yards”. If Pete used 200 yards in his calculation, the result would be about 25 acres, the midpoint of his example.

  4. Dear AdkBuddy:

    I just love that you went and did these math calculations! That is fantastic.

    Let me first say this: research into disturbance zones is ongoing and there is certainly no consensus about size or effect. I tried to stay on middle ground in my hypothetical scenario.

    I have had a scientist who is one of the foremost experts on disturbance zones reviewing my drafts and assumptions. For this piece she did in fact comment on my numbers and I made changes accordingly. With that said the scenario and any errors or exaggerations are all mine; no one else is responsible for them.

    Your calculations are correct so far as they go. I don’t want to induce narcolepsy in our readers but here’s how I did mine. First, I tried to provide a range that fits with what current research is showing. I used a range of 150 yards to 200 yards, that being a range discussed in current work. The 150 yard number produced a fraction over 19 acres. The 200 yard number produced a fraction over 30 acres.

    The reason my 150 yard calculation differs from yours is that I included some things you did not. I assumed a (conservative) 50 foot radius to the house itself and immediate surrounding infrastructure (paving, walkways, garage, etc.) then assumed a 60 foot driveway and portion of the access road and included those in my figures.

    In any case a 15 acre assumption (which is low not only according to my own estimate but is low according to the literature I have seen) does not materially change my point.

    These kinds of contentions over acreage and layout are exactly where the good and hard work of determining a consensus solution ought to happen, rather than blanket ideological demands. Therefore thanks as always, Buddy, for your contribution and attitude and for holding me accountable for what I write.


  5. M.P. Heller says:

    Pete. What an excellent piece.

    Too often when addressing these sensitive topics authours draw lines in the sand and do not provide a truly objective window into the possibilities. I applaud your effort to shed a new light on some old topics. This is one of the best articles on development vs. conservation I have read in a very long time.

    Thank you for your thoughtful consideration of a topic that is important to many of us.

    • M.P.

      Your comment means a lot to me. Given that you and I have agreed on some issues and disagreed on others, I hope your comment means a lot to all readers. I regret those who have intractable positions or doom and gloom conclusions on the question of better land use policy. Comments like yours bolster my hopes that their time is past.


  6. Tony Goodwin Tony Goodwin says:

    A good article and, so far anyway, a good discussion. I don’t think it will be easy to come to the point that Pete envisions, but it certainly is a goal worth pursuing. The shared fund that will pay for the ecological studies is, I think, key to perhaps making this work. As I think I understand it, any developer would be required to pay a fixed amount up front, based on the acreage they plan to develop or some other objective criteria. (There are also areas where there must be a flat fee paid to cover future municipal infrastructure costs.) While these may be an obstacle for some developers, these costs are at least known up front and are part of the business plan rather than starting the process and then being hit with the requirement for a $50,000 study.

    Pete’s ideas do seem to provide more predictability to the process – something every developer should welcome even if it costs a bit more up front.

    • Tony:

      Thanks as usual for the thoughtful comment. As concerns predictability you have read between the lines quite well my friend. Stay tuned for next week.

      The process to approve a development project in an area like the Adirondacks cannot be entirely predictable but it can be more predictable than it is now. This benefits all parties.


  7. Smitty says:

    Excellent piece. Thank you for the thoughtful analysis. Looking forward to your next installment.

  8. Paul says:

    The only problem with the “solution” is that it creates a development that nobody really wants to buy. What is that old school house rock song? Elbow Room. That is what people want, not clustered development, not shared spaces. You will have a difficult time trying to use an “urban” type of strategy for a “remote” development.

    I am all for this type of development since I already have a camp on 50 acres of land pretty much cut off by state land. Pete you can related since you have something quite similar. Since you and I are all set with the type of development in scenario one it is easy to be for number two.

  9. Paul says:

    “The results of the ecological site survey then serve as input to an assessment and design process that has the stated objective of maximizing both project profitability and ecological protection.”

    Pete, I think you need to describe this more. It seems to me that your premise is that from the assessment you determine the maximum profit potential based on what could be allowed under some type of environmental guideline. Not what is the maximum profit potential based on other non-environmental factors. Basically you are saying that we let environmental factors dictate the project. I am not sure that many developers would find this in their best interest?

    Dave Gibson had a good example here in another story.

    I asked him this:

    “In the Butler Lake example you give they go from 90 lots to 25? Isn’t this just building less on bigger lots and keeping some away from certain areas (the water in this case)?

    Is there a design for that project that would allow 90 lots and accomplish what he describes?”

    He replied:

    “Good point, Paul. Sometimes, but not always an applicant can gain the same number of conservation designed lots as he or she would in traditional layouts, depending on the landscape and resources involved. With Butler Lake, clearly that was not possible given the large number of special features and sensitive resources. The more intense the proposed development and the smaller the site, the more difficult it becomes to concentrate all desired development in ways that avoid sensitive sites and do not detract from conservation objectives.”

    This is the crux of the issue. Pete in your scenario there is enough land to accomplish the same number of lots with a different design (assuming they are as marketable or more marketable than other alternatives). Where you run into a problem is where you cannot. In that case the developers does not “win” as you say.

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