As 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.