Saturday, November 16, 2013

Commentary: An Updated APA Land Use Policy Proposal

APA officeGet out your torches and pitchforks, kids.  Here comes a nice fat target to shoot at.  I’m going to propose an updated land use policy and permitting process for the Adirondack Park Agency.  I’m not going to go into a detailed explanation of it since I imagine that I will have ample opportunity to do that in response to the numerous comments I hope to receive.

Consider this a straw man that you can light on fire or eviscerate as desired.  I don’t suggest for a moment that I have the one best answer or anything remotely definitive.  But I aim to have something to talk about which I can defend on the basis laid out in the two previous commentaries in this series: common ground exists to a far greater extent than the usual rhetoric would have you believe and we waste time, effort and good will by playing politics when reasoned discussion and a rational process can get us to consensus far more often than not.  So be ready, because I’m going to come back at any and all objections with direct challenges.  

I have had the able commentary and critical review of an expert in writing on this topic: Michale Glennon, Science Director for the Wildlife Conservation Society Adirondack Program.  Michale, who has her PhD in Environmental Science and Forestry from SUNY-ESF, is conducting core research on the ecological importance of private land in the Adirondacks.  Her presentation at the Strengthening the APA Conference held in September was a highlight.  While her comments have been most helpful and I thank her, nothing in this proposal belongs to her; it is entirely my fault.  Thanks also to the other Adirondack experts who reviewed this before it went to publication.

First, with Michale’s assistance, let us disabuse ourselves of any notion that updating private land use policy is not important.  Here’s her quote to me on the subject:

Private lands are extremely important to Adirondack biodiversity.  Here, and elsewhere, large numbers of species make use of habitats on private lands to meet their needs.  Although the Forest Preserve protects some habitat types very well, there are others in the Adirondacks that are disproportionately represented on private land and at the same time critically important to wildlife.

In other words, we cannot ignore private land in the ecological equation simply because we assume there is enough protected land in the Forest Preserve.

What then is the most critical issue with regards to the ecological health of private land in the park?  Again Michale, along with her research partner, social scientist Heidi Kretser (from the Northeastern States Research Cooperative’s web site):

Low-density residential development of five or more acres per house causes ten times the amount of land-use change caused by urban and suburban development and is one of the primary causes of habitat loss in the United States.

So from an environmental perspective private land use policy as it applies to open space is unquestionably important.  But it is obviously critical from economic and political perspectives as well, since it impacts development and therefore the well being of people and communities in the park.

None of this is lost on the APA, which takes its mission to protect open space very seriously.  However the conception of open space in the APA Act is a forty year old construction and it is absent the greater understanding of biodiversity, forest integrity and wildlife habitat that an additional four decades of progress in the ecological sciences has given us.  As Michale said in her presentation at the APA conference, “open space” is a vague notion that needs to be replaced by a richer concept of ecological health.

My assumption with the following proposal, per last week’s commentary, is that private land development that preserves ecological richness is compatible with private land development that is economically rich – that is, it’s profitable for the developer, for the community and for the overall economy of the Adirondacks.

Here’s the proposed policy.

Guidelines

Inclusive – The process brings developers and environmental scientists to the table early in the game.  It is understood that each party’s interest becomes everyone’s interests.  Specifically all parties work together to maximize two objectives: ecological health and profitability.

The question of exactly who sits at the table throughout the process of permitting a specific project is an open one; more on that next week.

Shared cost model – The cost to work through the process is shared by the parties.  The ecological site survey is paid for out of a park-wide pool which is funded by businesses, environmental organizations and State Government.  The fund is administered by the APA.

Incorporates the principles of Conservation Design – Following the ideas developed by Randall Arendt, the permitting process begins with a mandatory ecological site survey which then serves as input into the ongoing design process for the development.

Science-based – The ecological site survey is conducted by scientists selected from a suggested list developed by a coalition of parties and maintained by the APA.  As third parties they reduce the possibility of bias.

It is important to note that the science surrounding things like disturbance zones is far from complete; nothing in this proposal or the process should be construed to indicate that I or anyone else thinks the science is definitive.  But that’s okay: my goal here is not to lobby for specific disturbance zones.  It is rather to promote a scientific perspective and approach.  An ecological site survey provides useful information – some more solid, some less so, but all of important to the task of creating an informed design.

Predictable – The steps in the process are laid out clearly.  Having both an ecological inventory and a development plan up front minimizes the chance for a “surprise” down the road that costs the parties time and money.

Flexible –  There are multiple levels of site survey and design parameters depending upon the scope of the project.

Includes education as a core component – Jim Frenette, former APA Chairman, made a powerful point in his comments at the Strengthening the APA conference.  In his view one of the main things lacking in previous debates over land use issues was education and outreach: people did not necessarily understand what they were objecting to or what the intent of certain proposals really was.  Here, required educational sessions would be part of the process.

Does not require revising the APA Act – There seems to be general agreement that now is not the time to reopen the APA Act.  This process would need to be implementable through regulation under the existing Act.

Process

1.  The developers submit a project application, plans and criteria to the APA.  A key component of this submission is the ability to measure expected revenue over the life of the project, therefore the business plan must be complete enough to do allow this analysis.

2.  The APA uses a set of objective criteria to determine the level of ecological site survey required for the project (more on how these criteria could be developed next week).  These criteria include number of acres, number of lots, land classification, history and current status of the parcel, etc.

3.  An ecological site survey is scheduled.  An organization is selected to conduct the survey from an approved list.  The organization is paid for the work out of a park-wide shared pool fund maintained by the APA. The developers may veto the selection if they can show cause as to why the selected organization will not be fair and/or effective.  The developers, at their expenses, can nominate an outside party to join the team.

4.  One or more educational sessions are held where developers, scientists and the APA review the proposed project, the particulars of an ecological site survey, the principles of Conservation Design and the applicable legal and regulatory framework .  These sessions are open to the public.

5.  The ecological site survey is conducted and submitted as input to a design process.

6.  The APA holds design sessions with developers, the site survey scientists and outside experts as appropriate.  Conservation Design principles are applied to design an intelligent layout which preserves the ecological integrity of the parcel to the maximum extent possible.  Economic analysis is conducted concurrently to maximize lot value and maintain the revenue forecast the developer desires.

In order to accomplish this, specific strategies guide the process.  These include:

a.  The number of lots desired by the developer is maintained to allow the revenue plan to be successful.

b.  Land not immediately part of a lot owner’s disturbance zone is to be placed under conservation easement which spells out specific rights to use by the owner.  This allows large lots sizes and privacy while preserving ecological integrity.

c.  A Recreational Plan is produced for land not subdivided into specific lots. This land is to be placed under shared ownership with a conservation easement which spells out specific rights to use by the owners, per the recreational plan.  This creates a great deal of added value and allows for marketing a virtual lot size far greater than the individual lot size.

d.  A variety of lot sizes are incorporated ensuring an average lot size per APA land classification requirements.

e.  Individual lot lines are drawn last.

7.  The process moves forward only when the parties in the design process reach consensus on a final design.  Any party in the design process has veto power over the proposal.

8.  Only once consensus is established does the APA continue with appropriate review and adjudicatory steps consistent with current regulations to approve the project with appropriate conditions.  Because of the robustness of the process it is anticipated these conditions are already understood and agreed to.

We can have a healthy debate over this proposal on its merits.  A separate question is whether or not it is feasible: could the APA actually implement such a policy?  What would the process be?  Could it be done without revisiting the APA Act itself?  Tune in next week when I discuss these questions and other questions.

Bring on the comments!  Make them good.

Previous entry          Next Entry

Related Stories


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.




30 Responses

  1. Big Burly says:

    Good morning Pete,
    As always thought provoking. Clearly you have been thinking about this for a while, as the concepts are not off the top of the head.
    The need to come to a better solution about development that can sustain those of us who live here is becoming an imperative for sure.
    Your comments on the need for education are indeed pertinent to all this. Most folks will have a hard time understanding disturbance zone definition.
    Developers, especially those who share the same concerns about the environment and ecology of this special place on the planet, will be taking a major leap of faith providing complete business plans with profitability projections — there are many who would like to adjudicate how much profit is enough.
    All this worthy of an engaged discussion and education process. I’m not an attorney, but have directed the work of many over the years — don’t see that the APA Act needs to be opened to accomplish the objectives you outline.

    • Pete Nelson Pete Nelson says:

      Whoops! I want to maximize profitability in this proposal but I got carried away with the language. In several places I meant to say and should have said revenue, not profit. Revenue projections are fair game for input into the process but profit is private; the details are no one’s business. I changed the wording accordingly. Thanks.

  2. Paul says:

    Isn’t most of the development in the Adirondacks done piecemeal by individuals rather than developers? Does this apply to the larger projects only (class A or whatever they are called) or to anyone who wants to build on their property?

    For example if the owners of the ACR in Tupper wanted to build those camps getting one permit at a time it would have been no big deal.

    Also, like I said earlier the Natural Heritage Program (the DEC and the TNC) has and is already doing much of the scientific analysis why not just use the data they already have?

    • Pete Nelson Pete Nelson says:

      Paul:

      You are right to raise this issue, which is huge. I have on my schedule to address the issue of individual lots because this ain’t it, no doubt of that. With said said, I have some ideas… maybe two weeks out for that column…

      Pete

  3. M.P. Heller says:

    Very thoughtful piece Pete. Its refreshing to read something that is highly constructive and forward thinking here on the Almanak rather than the recent caustic vitriol that has been so prevelant.

    I think you make excellent points about educating folks so that they can make an informed decision about what side of a particular issue to be on. Often enough folks get worked up into a lather and battle lines are drawn based on second or third hand information that has often been presented with a major bias in one way or another. Allowing folks the become informed on their own and make their own decisions based on the facts as they understand them is a much better way to have productive debate and discussion when it comes to important issues. I applaud your ‘uncommon’ sense with regards to this facet of your plan.

    I have one question. Under number 7 in the ‘Process’ language you outlined I would like to hear more on your ideas related to veto power. You state in your piece that any party would have veto power over any given proposal at that point in the process. What concerns me is that one person with an (unethical) agenda might improperly use this clause to kill any and all projects that might conform to APA regulations, but doesn’t conform to their personal belief structure. Could you please illuminate a little more what protections would be in place to ensure an overzealous member of the proceedings could not derail hard work and financial investments of all the parties in the process?

    Once again. Thank you for the thoughtful piece. I enjoyed the last two installments as well, and am looking forward to the next.

    • Pete Nelson Pete Nelson says:

      M.P.:

      As pertains to more fully describing veto power, you have a deal. I will describe it more fully in detail in a comment a little later today when I have an hour. In the mean time thanks for the thoughtful comment.

      Pete

      • Dale Jeffers says:

        No worries about misuse of veto power by the “parties”. Under the APA Act, there are only two parties – the Applicant and the APA. Both presently have veto power in that the APA can always deny the application (subsequent public hearing required) and the Applicant can always withdraw the application.

        • Pete Nelson Pete Nelson says:

          Actually it’s not quite that simple. The APA Act, and specifically section 809, Agency administration and enforcement of the land use and development plan, has a lot of leeway. I’m not a lawyer, but for example, the question of when an application is considered filed is open. There is this language: “Such application shall be filed in such form and manner as the agency may prescribe.” The study and consensus can be a valid prerequisite.

          Leeway is granted throughout the Act for modifications deemed sensible.

      • M.P. Heller says:

        Thanks Pete. I appreciate you taking the time to further explain this point to me. I am sure with a bit of clarification the idea will fit in well with the rest of your proposal.

        Excellent work.

  4. Paul says:

    The biggest issue is the divide. On one side are a group who want to see more restrictive development. On the other are folks who still think that we have some of the most restrictive development rules already. So is the preface to the question accurate? Is there an issue for everyone involved or just part of the populace? This may be moving folks on one side of the issue to be in the unique position of defending the APA? That is a bit of a “victory” for environmentalists even without any changes.

  5. Matt says:

    Who is in “general agreement” that we shouldn’t change the Act? Why only more regulations and not a more well-crafted law? Thanks Pete.

    • Pete Nelson Pete Nelson says:

      Matt:

      There is plenty of debate over whether to revisit the Act; certainly lots of people are in favor of it. I myself think that it is a good idea. However the general agreement is that the timing is bad to do it now. With the ACR unresolved, the massive issue of classification of the former Finch lands and implementation of the amendments on the docket, the political atmosphere is not conducive to reopening the Act. At the recent APA conference Assemblyman Stec reiterated that Albany is in no mood for it right now. No one I’ve spoken with disagrees with this sentiment.

  6. Dale Jeffers says:

    Pete,

    Thanks for writing this. I think that it will give rise to a much needed and vigorous discussion.

    I do have one question for you. Some say that the APA is a very political agency and that some of its decisions are not made based upon the merits of the matter under consideration, whether private lands or Forest Preserve.

    What does your experience with the Agency lead you to conclude on this question?

    • Pete Nelson Pete Nelson says:

      Dale:

      Neither my experience with the APA as a permitting agency (I have one) nor my experience talking with officials and staff leads me to think the APA is overly political. Of course my experience is less extensive than the experience of others.

      However I have had extensive and long-term participation in the political arena at local, state and federal levels. It is my experience that most charges of political gamesmanship are way overblown. Typically government employees, whether representatives or staffers, spend the vast majority of their time and effort doing the people’s business.

      I do think that from time to time the APA faces tremendous political pressure. How that is dealt with in any individual case is an open question. But as I said in my first column in this series, I begin from a position of trust for the APA. I also have respect for how hard they work: understaffed and underfunded, dealing with 300-400 permits per year. That’s part of the picture, to be sure.

      The question of the best land use policy is mostly, if not wholly, separate from these issues.

  7. Dave Gibson says:

    Pete,
    A step has been left out in your scenario, and it’s very important, and it should precede decisions on what type of biological survey. That is – a public scoping session to help APA determine the full scope of all the issues facing the APA’s review of a given application for major land use and development before it, the application, has been approved as “complete.” If, for example, the ACR had gone through this process by the fall of 2006 (rather than APA’s politically motivated decision to declare it complete in ’07 (in spite of numerous notices of incompletion), we could have all known and participated in discussion of: a. the scope of biological information submitted by fall ’06 remained woeful and incomplete; b. the economic, fiscal and marketing information was equally flimsy, and that both fields required significant and particular kinds of permit review by the APA. Therefore, when the time came for the APA to vote to bring ACR to public hearing, the scope of the hearing issues would have been more robust, more detailed, and more suited for particular types of expert testimony which the applicant could not wriggle out of.

    • Pete Nelson Pete Nelson says:

      Dave:

      The scoping criteria are important (per my point that there must be multiple levels here). I’m convinced that these criteria need to be developed publicly and outside the APA – more on that next week. I’m not convinced that the criteria need to be applied in a public session.

      I’m leaning toward a position that the scoping session, survey and consensus design process must precede an application being deemed complete.

      Stay in on the discussion, especially next week.

  8. Paul says:

    ” a public scoping session to help APA determine the full scope of all the issues facing the APA’s review of a given application for major land use and development before it, the application, has been approved as “complete.””

    Dave, so you mean a separate public hearing prior to a complete application? When would you do this at just some arbitrary time in the application process? One assumption you have to be able to make is that the agency knows what it is doing. You don’t agree with that as I understand it (at least in this case). Again, is this for every project or just large ones?

  9. Paul says:

    Pete, no torches or pitchforks yet?

    I think that the APA is already trying to do some of this. the Brandeth Park permits from a few years back are a good example. Probably one of the largest “back country” developments ever. I think it is more structures than the ACR. There is even clustering with the ACR project just not as much as some folks would like.

    • Pete Nelson Pete Nelson says:

      No Paul, no torches or pitchforks yet! What is up??

      The APA does try to do some of this. But it is at their discretion, not mandated and not part of a predictable process.

  10. Barry Mattoon says:

    Pete, I fell your ideas are a further degrading of private landowners rights in the grand unconstitutional existence of the Adirondack Park. Just more burdens placed on landowners requiring ecological/ wildlife surveys by Michele Glennon no doubt a relation to The former tyrant former commissioner of the APA? And a nice touch to require a study when Ms Glennon’s firm will undoubtedly recieve the lionshare of the newly mandated studies. Oh and 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. Smacks of another elitest enviromental ploy to halt any economic development in the Park and drive out the native citizens of the park if your rich you can stay if not get out or you will be forced to work on degrading menial jobs serving those rich enough to buy all the land. Hey and congratulations on your recent purchase of prime adirondack land just more land we natives will never see developed do us all a favor Pete take all your elitest ideas to yourself.

    • Pete Nelson Pete Nelson says:

      Barry:

      So you are supposed to be the sort of flame throwing, angry local that the debate can never get past, any more than extreme environmentalists cannot be moved off their perch. Don’t write about land use, the third rail, I was told. They’re out there, I was warned.

      One of the advantages I have in writing as sort of an outsider is that I can ignore the conventional wisdom, especially when I don’t care one bit about it. So I hope you’re still out there, Barry: here come some questions.

      I take it you are a private property owner in the Adirondacks. Are you a developer or involved in property development? If so can you give me the short version of what you see as proper land use policy in the Adirondacks? How should zoning be done? Who should have the controls? What controls are reasonable? How has the APA been tyrannical? How can we change that?

      How do you see protecting the environment as it pertains to private land? Do you think responsible development can protect water quality, shorelines, views, wildlife and open space without being unnecessarily restricted? What should the balance be? Who should get to define that balance?

      Barry, if you are angry I’m willing to bet you have your reasons. I want to hear them. I doubt you’re just an ass and I doubt you want to cut down all the trees and pave everything over. In other words, I’m not going to write you off and hide behind some playbook war of words. I’m interested to hear your perspective. If I have a bunch of bad ideas then let’s hear about it from you with some details.

      But don’t do it with insults and judgmental personal attacks because that just marginalizes you. Understand clearly that I could not care less about that sort of thing – the personal attacks, the judgmental language, any of it. That gets you nowhere and it has, I assure you, no effect on me at all. I’ve been around too many blocks, Barry.

      Does any of that sound like an elitist? Too bad you can’t meet me; then you’d know better. But in the mean time, let’s hear your side of it. I want better ideas than I have. Maybe you have some. Maybe you have a valuable point of view.

      So, what have you got?

      One more thing – I want developers in the Adirondacks to make a profit. My best friend in the park is a realtor. But you’re right about one thing: Lost Brook Tract will never be developed. Damn straight.

      Now let’s talk anyhow, since that has nothing to do with any of this.

      I will wait for your comments.

      Pete

    • Dan Crane Dan Crane says:

      I believe the appropriate honorific to use would be Dr. Glennon, NOT Ms.

      I swear that is the distinct scent of misogyny in the air.

  11. M.P. Heller says:

    I see nothing elitist about Petes ideas.

    The man is trying to come up with a plan to modernize one of the most debated and vilified agencies in the Park.

    Keep up the good work Pete. There is no merit in the claims you are being elitist. As you probably know, I’d have no problem telling you if I thought that was the case. The above post is nothing more than a personal attack without any constructive components.

    • Pete Nelson Pete Nelson says:

      Thanks, M.P. I know you’d call it like you see it. Me too.

      The man is angry for a reason. I’d like to know better what it is. I asked him above, we’ll see what he says.

      The old story is that we’re not supposed to get past the anger and vitriol in these park debates. I ain’t buying it; I’m stubborn. Keep reading.

      • M.P. Heller says:

        I ain’t buying either. The anger and vitriol are just cover for folks who have nothing constructive to add to the discussion. Its a total cop out.

        I look forward to this weekends installment.

  12. Lynn Holthouse says:

    What about the follensby pond property? the nature conservancy has been holding this property for about 10 years now and it is still off limits. this was supposed to have been turned over to the state and opened up long ago. what’s going on, why are they holding it? I smell a rat.

    • John Warren says:

      They are private landholders. Why are you holding on to your property? Why do you assume you have a say in what the Nature Conservancy does with its own property, purchased with its own money?

  13. Lynn Holthouse says:

    why is the nature conservancy still holding the follensby pon property? it was supposed to have been turned over to the state long ago.

    • Peter Bauer says:

      TNC has been doing amazing work here in the Adirondack Park to protect land. They move mountains and it’s really incredible what they accomplish. Please understand that they are holding much of the former Finch lands still at great financial cost as the state works out its purchase schedules. The state’s land purchases are highly regulated and structured over years. TNC has lost millions of dollars on the Finch deal when all its purchase, holding, transition costs are added up, but it has delivered to the people a wonderful gift. Follensby Pond will be a wonderful addition to the Forest Preserve too, but the state is years away from being able to pay for it. We should all be grateful that TNC bought Follensby Pond and is holding it at great costs until such a time as the state is in position to purchase it. These lands transactions take years.

  14. Scott van Laer Scott van Laer says:

    Follensby should have been the land swapped out for lot 8.