Monday, June 30, 2014

Commentary: A Utility Land Bank Amendment

Burtons Peak and Utility LinesWe just went through an election season that featured not one, but two Adirondack-related amendments to the New York State Constitution. One was complicated and one controversial. Both were the subject of intense local debate and media coverage. The controversial one is still in the news.

The Adirondack region could be forgiven for having a little amendment fatigue. Yet I think we ought to do it again and as soon as possible. So do a number of people who have been working hard to do just that: to give us another proposed amendment to ponder. What could they possibly be thinking? Allow me to explain.

Everyone reading this commentary has witnessed the massive spread of real-time information to the point where it is ubiquitous – smart phone technology being the most obvious example. But as the saying goes, you ain’t seen nothing yet. There is a quantum leap in immersive, interactive power headed our way in the next few years. Among other advances, this wave of immersion will take teleworking to a completely different level, from the current “it’s doable” to being able to be a full participant at gatherings anywhere on the globe while sitting in a room at home. Analysts predict a huge surge in remote work, which will become the predominant paradigm for many businesses.

All this immersive power takes massive amounts of network bandwidth, ushering today’s 10 Mbps speeds towards the obsolescence of dial-up. The only transmission medium capable of keeping up with the demand is fiber optic cable. Consequently, forward-thinking communities across the country are wiring for fiber as rapidly as they can.

I sure would like the Adirondack region to be able to reap the full benefits of this evolution now, rather than be years behind other areas of the country. I think about the myriad benefits of luring telecommuters to the park , a natural environment nonpareil to which people will surely want to come if they can work from within it. I imagine the potential economic shot in the arm for many of our struggling communities.

Alas, even though many are working to wire the park, for many places in the Adirondacks this future isn’t in the cards.

With dwindling resources, global political upheaval, deleterious environmental impacts and massive inefficiencies, centralized energy production from fossil fuels is increasingly problematic. Communities throughout America are responding with more local and green energy solutions such as micro grids, shared solar, biomass plants and small hydroelectric dams. I would love the Adirondack region lead in this area, as it should.

Alas, in some of our communities it will be all but impossible to craft these kinds of solutions.

People can argue all they want about the causes of climate change but the data shows that we are getting warmer, precipitation is up and the frequency of violent storms in increasing. Based on obsolete descriptors Irene was a “hundred year” flood; now multiple studies, including this one, show that events of that magnitude are likely to occur every 3 to 20 years. Many communities in America are already adapting to these changes: building bigger bridges, wider culverts and stronger walls. The Adirondack Park, with its thin soils and fast running mountain streams and rivers, needs these upgrades more than most regions.

Alas, in many places in the Adirondacks the work will not be done. Why? It can’t be done because it’s unconstitutional.

Count me out of the small chorus of voices that lays problems in the Adirondacks at the feet of Article XIV, our landmark “Forever Wild” constitutional amendment. “We have too much protected land,” they say. “The restrictions are too stringent,” they say. “Local economies are strangled,” they complain. These complaints errantly call into question the very thing that makes our region unique, even while none of our problems are unique but rather shared by rural areas across the country. Article XIV isn’t the problem; it is, as it has always been, a gift and a great opportunity to sustain a region that can serve as an example to the world of how to coexist with nature.

But that doesn’t mean Article XIV is perfect. No laws, even the constitutional laws we exalt above all others, are perfect. And so we have a mechanism to amend them. But caution is in order: history shows that we must make the choice to amend constitutions with wisdom and restraint, lest we risk damaging the high ideals they enshrine. The recent NYCO amendment is a case in point, having left a bad taste in many mouths, including mine.

After last year’s election season and all the consternation around NYCO you might think now would be a poor time the test the waters with another proposed amendment. But the world doesn’t wait while we twiddle our thumbs and Article XIV, conceived well over a century ago and thus the product of nineteenth century thinking, won’t evolve by itself. Of course for the vast part of its spirit and content Article XIV doesn’t need to evolve. But a hundred and twenty years ago no one was thinking about climate change, micro grids and fiber optic cable. Most fundamentally, the 1890 version of a road right-of-way looked nothing like the 21st century version we need in order to support today’s utilities and improvements.

To deal with this understandable deficiency in Article XIV, the Common Ground Alliance Amendment Working Group has designed a proposed constitutional amendment, a Community Utility Modernization Amendment. They released a white paper describing it and a FAQ document which continues to expand. The proposed amendment is complicated; I will not attempt to describe it fully here. Rather I refer readers to the white paper and FAQs available here.  On that site any member of the public can weigh in with comments, so please do.

The proposed amendment has two parts. The first part is a use amendment which would allow pipes and cables used for common utilities to be placed under and along state, town and county roads which pass through the Forest Preserve. Currently this is a violation of Article XIV because prior use amendments were only about crossing the Forest Preserve for transportation purposes, not utilities. This amendment would not change any ownership: the land would remain Forest Preserve with all its other protections in place.

The second part is a modest land bank of 500 acres to deal with the numerous situations where the footprint of a project needs to change – i.e. a road is not wide enough, a culvert is not large enough, a bridge is not substantial enough.

For some people the term “land bank” is a reflexive “No,” because it is seen as a taking of Forever Wild land that removes such a weighty decision from the purview of the people of New York and hands it indiscriminately to administrators and bureaucrats. But in truth it depends upon how the land bank is crafted. There are two land banks already part of Article XIV, both added roughly sixty years ago and both dealing with roads. The more well-known land bank was established for building and maintaining the Northway. It has a very specific scope and has worked without controversy, whatever one may think of the Northway project itself. The other land bank is not as well known. It established 400 acres to allow for modernization and improvement of state roads (but not utilities) traversing the Forest Preserve. This land bank has worked as intended, also without controversy.

The proposed land bank would be similarly scoped and managed. Among the uses it would allow (quoting from the white paper):

  • Environmental projects along town and county roads where projects such as storm water drainage, larger bridge and culvert replacements designed for fish and wildlife habitat connectivity and to handle larger water flows that come from increasing precipitation related to climate change, and water treatment facilities which would involve necessary expansion onto Forest Preserve lands
  • Utility reconfigurations associated with a road project which are necessary for public health and safety or environmental purposes will be allowed for all State, County and Town roads
  • Public health, safety and welfare projects not associated with roads, such as water wells and water distribution, airport safety, additions to cemeteries, transfer stations, fire and rescue buildings
  • Projects that facilitate renewable energy sources, such as restarting existing small hydro dams and shared community solar
  • Short aerial utility lines, of no more than 4 poles, where no buried option is possible

In other words, these are specific, targeted uses for the public benefit.

Finally, to stay true to a spirit of protecting wild land, the proposed amendment would require that the State add 500 acres to the Forest Preserve as compensation for the land bank before it became operative.

No doubt some changes are needed and the proposal can be improved. I encourage all of you to get involved, review the white paper and provide feedback to the working group. But on the whole the Proposed Community Utility Modernization Amendment has been carefully thought out, it is being fully vetted and it is eminently sensible. The issues it addresses are important already and are rapidly becoming more important. It deserves wide support and prompt action.

Photo: Utility lines frame Burtons Peak.

 

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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.




19 Responses

  1. That sounds reasonable as long as it stays focused on public need and public need is narrowly defined. What worries me is how lawyers can twist things to private benefit.

    As for the Northway, IMO it should not have been built where it was. They should have run it long the Lake Champlain shore.

  2. Dave Gibson says:

    Pete,
    Thanks. We are just beginning the debate and discussion phase. The issues are important, but I differ with you that “prompt action” is needed. Prompt action lacking in evidence, critical thinking and analysis is one human tendency that Article XIV was intended to prevent with respect to wild forest lands. Another was unfettered governmental power. I do not yet know if all these proposals are “eminently sensible.” Some may be. Others are not. I imagine you may have questions and concerns after further study as well. These proposals were crafted quietly and behind the scenes by a few people. Wholesale endorsement is premature. The 1957 Land Bank affecting State Highways abutting Forest Preserve took, and deserved to take years of study and debate and amendment before coming to the voters. So should this concept.

    • Paul says:

      Dave, Improvements required to deal with the changing climate and the local weather impacts that are associated with it it may require “prompt action”. In fact it may be too late in many cases. I hope that if it becomes a tropical storm that “Arthur” doesn’t turn into another Irene this coming fourth of July weekend!

    • Dave Mason says:

      Dave-

      You may recall that you and Dan Plumley were the first of about 70 people who had input to this work, including all the advocacy groups & many of their Board members.

      The working group had 10 people, and it cast a very wide net for input over 2 years. It sprung from the 2012 Common Ground Alliance annual forum. After that Forum, it self-organized, then it talked with 70+ people, some several times, and it certainly was no secret.

      That said, now that there is something that hangs together as a proposal, there does need to be plenty of discussion. I am sure there will be.

      The whole process will, as you note, take years. That just comes with the territory of such work. Fortunately we have decades old models, precedents, of the prior 2 land banks and various use amendments to draw upon.

      While I am here, I should mention the CGA Forum this year is July 16 and all are welcome. It will use the working group format of 2012. All are welcome.

      You do need to register here: http://events.constantcontact.com/register/event?llr=bhdfypdab&oeidk=a07e9970bk128d444cb

      • Bill Ingersoll says:

        Mr. Mason,

        The big question I have is:

        Who the heck is this “working group”?

        To clarify: What is its membership? What qualifications does it have to propose an amendment of this magnitude? Is this group composed 100% by government officials and utility professionals with specific project requests in mind, or is it a bunch of retirees who are giddy with the idea that they might get to rewrite a part of the constitution?

        I read the article in Adirondack Life a while ago that outlined the various scenarios that you envisioned for the future of the park, including a potential lack of interest in the Forest Preserve resulting from demographic changes. I do see the truth in these possibilities, and the message contained therein.

        However, this proposal crosses the line from commentary to a proposed course of action… and sorry, I see the need to question the credentials of those individuals involved in creating this proposal. Pete Nelson’s own biography describes him as “a college math teacher, musician and professional stilt walker in Madison, Wisconsin,” so in my mind (and with no disrespect to Pete Nelson) he has no more credibility than I do to draft a utility land bank amendment. If the rest of your working group has a similar background, then there is no further need for discussion–this is an amateur undertaking that has stepped well beyond its area of expertise.

        Commenting on the need for such an amendment by people with these qualifications is one thing. Expecting the voters of the state to act on their proposal is quite another.

        So please: who is this working group, and why should we listen to them?

        • Paul says:

          The members of the working group are listed on the first page of the white paper. For example one member is Ross Whaley. He is a past chair of the APA. Before that he was the president of SUNY ESF. He was also a member of the Commission on the Adirondacks in the 21st century set up by the previous governor Cuomo.

          “Neil Woodward and Karyn Richards continued to push on the work after the Forum. In addition to Neil and Karyn, the working group members came to include David Mason, James Herman, Ross Whaley, Bill Farber, Sherman Craig, Ken Hamm, and Ed Frantz.”

        • Dave Mason says:

          On the front page of the white paper, see the first section subtitled “About this Group”

          I am sure you know some, if not all, the people involved. Get in touch with the people you know for more info. They have a lot of history on these issues, as you know.

          Bill, I think you really ought to read the white paper, and especially the FAQ.

          Have a nice day.

          • Bill Ingersoll says:

            Mr. Mason,

            Avoiding the question is not answering it. I see a list of names under the disclaimer “we are not an officially appointed group.”

            So I ask again:

            What credentials do these individuals have to initiate a utility land bank amendment?

            Because you’re right, I do recognize a couple names, and my concerns are NOT alleviated.

            Please list their credentials and qualifications in regards to public utility issues and Forest Preserve constitutional law. Your say-so that everything is hunky-dory is NOT sufficient.

        • Pete Nelson says:

          Bill:

          Not that this isn’t clear already but for the record I had nothing to do with drafting the white paper, nothing to do with proposing the amendment and nothing to whatsoever to do with the working group. I’m not even part of the Common Ground Alliance. You can be quite sure that if an amendment and associated language is presented to voters I will have no part in crafting it. I don’t a deal with anyone to work on this or promote it.

          That means that there is no “rest of the group” to lump in with me despite your quoting of my “biography” (which is my blurb on the Almanack and not a biography – you don’t know my biography). Your focus on me seems to be an attempt to discredit the effort. You can make judgments about the actual working group as you see fit but a tactic of lumping it in with commentary from me is disingenuous.

          I’m simply offering my opinion. I’m pretty sure I’m not stupid, so I’ll stand by the opinion. I think it was a thoughtful effort, shows a good understanding of multiple related issues and ought to be pursued. I don’t think it’s perfect. I think it’s too broad. I don’t like the current construction of the land bank as proposed but understand why it’s being suggested. I don’t dismiss it reflexively, as some seem to do, just because I have an instant “no” trigger when I hear the words “land bank.”

          You can dismiss the amendment effort. You can dismiss my commentary. But keep them separate.

          Pete

          • Bill Ingersoll says:

            Pete,

            If you weren’t one of the authors of the white paper or the proposed amendment, then I stand corrected… with apologies.

            But that’s part of the problem, isn’t it? Who are these people? What are their credentials, and what qualifies them to propose tinkering with the constitution? Are they town leaders, civil engineers? Retirees who attended one of the CGA presentations and thought it would be cool to join a committee?

            The point is that several steps in the public outreach process have been skipped here. The few people who knew anything about the CGA thought they were just a few interested individuals who were going to get various groups together and help identify a common vision for the Adirondacks. Interesting, worthwhile, but non-binding.

            However this goes way beyond that. So yes, credibility is an issue here.

    • Pete Nelson says:

      Dave:

      For the most part I agree with you. With respect to “prompt action” I really used poor wording. What I meant to say and should have said is that work should proceed on it promptly, to make it clear I did not mean that it should be approved promptly. The devil is in the details and an amendment like this needs precise language, expert review, and perhaps most important, detailed and effective enabling legislation.

      I’m not sure that “quietly” and “behind the scenes” is a fair reflection of the process used to develop the white paper.

      I like the whitepaper but not every part of the amendment as outlined. I suggested some changes to the land bank portion of the amendment myself.

      From ym perspective the important thing is that the issues the amendment seeks to address are real and important. In my view the whitepaper is sensible, well thought out and makes for a strong starting point. Let’s go from here.

      Pete

  3. Paul says:

    Putting the utilities underground is the best thing to do. It is probably difficult to do this to any large extent in the Adirondacks given the geology. Perhaps now with new drilling technology maybe we will be able to get more utilities off the poles and into the ground where ice and snow and wind and other things can’t take them down. This also has added aesthetic benefits making it a win win for the Adirondacks. It is also safer without all those telephone poles to run into. It is amazing when you drive along some highways out west and you realize that there just are not any ugly wires!

  4. Bill Ingersoll says:

    Sorry, no.

    If we’re going to start discussing a proposed amendment for a “utility land bank”–something that sounds so open-ended that it could cover anything from culverts to sewers to power lines–then I would rather hear from the actual public agencies that would be implementing these projects. I want to know what exactly is on the table, and why all alternatives have been eliminated. For each and every project.

    I have little interest in a group of amateurs whose name is so full of warm-and-fuzzy buzzwords–“Common Ground Alliance Working Group”–that criticism like mine can sound like a kind of de facto obstinacy. I want to hear from the actual professionals, stakeholders, and decision-makers involved in these projects, not an “alliance” of opinionated citizens. (By the way, is the feel-good name of your group a built-in mechanism that makes it easy for you to paint your critics as being antisocial roadblocks to progress? People who disagree with your ideas are dinosaurs who would rather pick fights than seek “common ground” and “alliances”? Very clever.)

    A land-bank is open ended–especially yours. Once passed, only a second amendment can undo it if things start going south. A town can make the case that they need to install a fiber optic cable along State Route X, impacting 0.43 acre of Forest Preserve. Your land bank is approved, the legal hurdles are cleared, everybody loves the project… but then the funding evaporates. The acres intended for that project instead become applied to a major development on a secluded parcel surrounded by state land, turning a gravel road to a rustic inholding into a paved highway with a municipal sewer connection and a power line. If each of these elements are billed as one less-than-10-acre “project”, then your rhetorical attempts to establish caps can be easily sidestepped.

    500 acres seems excessively high for a utility land bank, considering that most legitimate roadside utility projects impact very small amounts of state land. You use the word “modest” as the adjective-of-choice to describe the 500 acres. That’s a heckuva lot of culverts, so this is more likely about land development–your own description notwithstanding. Your working group apparently arrived at this number to ensure that there would be enough land in the bank to be spread around to as many as the park’s 65 towns as possible. However, by my math 25 towns could theoretically monopolize your land bank with 10-acre development proposals. Your FAQs refer to “projects” and “utilities.” Yeah, well, resort proposals are also projects that require utility development… and if you think this type of thing would be non-controversial, then you clearly don’t pay close enough attention to regional politics.

    Your proposal seems to include no insistence that these “projects” even be located at roadside. Power lines could be strung through the backcountry.

    Your “white paper” is factually incorrect in stating that land banks have been non-controversial in the past. There was one (the 1913 Burd Amendment) that allowed up to 3% of the Forest Preserve to be flooded for reservoirs. This was highly controversial, and it was eventually limited in scope by a second amendment 40 years later.

    Also, I’m not sure if the Northway amendment can be considered a “land bank” in the way you are contemplating, because that amendment was specific to that one project.

    I could go on. But I will absolutely oppose a catch-all land bank like this. The individual amendments can be tedious, controversial, and annoying, but they allow each project to be discussed and weighed on its individual merits (even if I don’t always agree with the outcome). A land bank asks me to approve these projects sight-unseen, and then trust that the intentions won’t be conveniently reinterpreted by each town supervisor. A “utility land bank” is just one step away from a “______ land bank,” where the “blank” can be filled by whatever interest you can imagine might have an interest in gaining public land.

    • Pete Nelson says:

      Bill:

      Lots of good points here. The anti CGA screed isn’t one of them. Let’s just say the name of the organization has nothing to do with the subject at hand.

      Calling the “white paper” (your quotes, nice) factually incorrect because it doesn’t acknowledge the Burd Amendment as a land bank is quite a stretch. That amendment was proposed long before any modern concept of land banking, it had no analogous mechanisms and it made available for destruction on the order of 90,000 acres (based upon park acreage at the time), which is one-hundred-eighty times the acreage of the two land bank amendments in Article XIV. With a magnitude like that it has little in common with the idea of land banks in the first place. So I’m not very sure that comparison makes the white paper factually incorrect.

      • Bill Ingersoll says:

        Maybe it was a screed, maybe it was a natural reaction to the implied notion that we should all be automatically deferential to a group that calls itself the “Common Ground Alliance Working Group,” sort of the way “Protect the Adirondacks!” name implies that you can either be protecting the Adirondacks with them (from who? what?) or one of the despoiler.

        But I am impressed with this distinction that you (and the author of the white paper) are drawing between the Burd and Northway amendments, that one can’t possibly be a land bank because it exceeds your notion of what a land bank should be, but the other one was even though it was authorized for one and only one purpose. It’s a rhetorical distinction that doesn’t fly, sorry. I stand by my observation.

  5. Woody says:

    No to this idea. ’nuff said. If any of the individual projects are worth considering then lets look at them one at a time. Trying to lump them together into one mega package will just confuse everyone. No matter how many nifty bullit points you write into this thing your just going to get a brick of swiss cheese, full of holes. The biggest one is “Public health, safety and welfare projects”. This could be any thing from a water filter station to a 200 foot police radio tower. The amendment would have to be a book to close all these loop holes.

    • Paul says:

      If something creates a threat to public health safety or welfare an amendment isn’t even required the governor can go ahead and allow the activity. The idea here is perhaps to make these improvement before the storm rather than having to fix it afterward and wreck John’s Brook and the Ausable river in the process.

      • Woody says:

        This group’s idea is to do 18 million wonderful thing with one amendment that will be about 100 words on the ballot. What they intend is less important than how the amendment gets interprited. Because this is’nt something that Pete Nelson or Dan Mason will own from start to finnish. There will be lawyers interpreting the meaning of each word to see what exactly the towns can get away with.

        Besides I agree with the comment that 500 acres is alot. If the state got 400 acres for road alinement and did’nt use all of it then why the hell does anyone need 500 acres to fix a bunch of culverts?

        So don’t kid yourself that’s what this is about. Its swiss cheese. Holes every where. the lawyers will have a picnic with this one.

  6. Dave Mason says:

    I was away for all things internet for a bit for the holiday.

    What I did with the questions/issues raised here is add them to the FAQ which can be found here:
    http://adkfutures.org/2014/06/26/faq-about-the-amendment-proposal/

    To the specific question of the working group people, their backgrounds, etc please see this post from Oct 2012 about the launch of the group:
    http://adkfutures.org/2012/10/30/255/

    FYI, this link was also included in the June 13 post that released the White Paper.