Tuesday, September 16, 2014

Is The APA’s Land-Use Plan Mandatory Or Not?

ACR-aerial3Backers of the Adirondack Club and Resort complain that their opponents are stalling the project by appealing the Appellate Division’s 5-0 decision in favor of the resort.

That’s an understandable reaction, but the opponents have raised an interesting legal question with broad ramifications for the whole Adirondack Park. At least, that’s how it appears to a layman.

The question is: Are the development guidelines set forth in the Adirondack Park Land Use and Development Plan mandatory or not?

In a decision in July, the Appellate Division suggested that they are not mandatory.

The question came up because the project’s opponents contend, among other things, that dividing up timberlands for “Great Camp” estates violates the land-use plan.

Located near the Big Tupper Ski Resort, the timberlands are zoned Resource Management, the most-restrictive classification in the land-use plan. The developers seek to build eighty single-family homes, including thirty-five Great Camps, on 4,700 acres of RM land.

Single-family residences are allowed on RM lands as a “secondary” use. The land-use plan states: “resource management areas will allow for residential development on substantial acreages or in small clusters on carefully selected and well designed sites.”

The opponents claim that the ACR proposal meets neither criterion.

The land-use plan fails to define “substantial acreages” or “small clusters,” so people can easily argue both sides of this issue. However, the Adirondack Park Agency, which issued a permit for the project, contends that in any event the criteria are not mandates.

In a footnote to its decision, the Appellate Division pointed out that the first paragraph of the land-use plan, which was adopted in 1973, states that the plan shall “guide” the agency’s decisions. “We reject petitioners’ argument that the APA committed a legal error by concluding that this provision [referring to substantial acreages or small clusters] was not a mandatory rule, but a consideration to guide the APA’s exercise of its discretion,” the court said.

John Caffry, the attorney for the opponents—Protect the Adirondacks, the Sierra Club, and a private citizen—argues in legal papers that the Appellate Division’s interpretation “essentially gutted the heart of the APA Act.”

Caffry writes that the land-use plan “creates mandatory requirements that must be strictly enforced” and notes that the plan allows for variances from these requirements.

“If the Legislature had intended for the plan to be merely guidance, without strictly defined requirements, it would not have needed to provide for the granting of variances from ‘the strict letter of the provisions of the plan,’” he asserts.

If the decision stands, Caffry warns, “the statutory protections afforded to the lands and environment of the Adirondack Park will be significantly weakened.”

The quotations are from a memorandum of law that Caffry submitted to the Appellate Division in support of a motion to take the case to the Court of Appeals, the state’s highest tribunal. Because the lower court’s decision was unanimous, the plaintiffs do not have an automatic right to appeal. Rather, they must demonstrate that the case raises novel issues of statewide significance.

The state attorney general, representing the APA, opposes the motion.

“Petitioners miss the mark in their attempt to frame a novel issue by arguing that the statutory description of resource management lands … creates a ‘binding rule’ which the Agency improperly treated as simply a ‘guideline,’” Assistant Attorney General Susan Taylor writes in a legal memorandum.

Rather than define “substantial acreages” and “small clusters,” Taylor says, the land-use plan “contains narrative descriptions of the purposes and character of resource management lands which the Agency must apply to find compatibility. … The Agency necessarily retains discretion in applying the objectives and character described. … As this Court held, substantial record evidence supports the Agency’s reasonable determination that construction of the proposed dwellings comports with the character and objectives of resource management lands.”

If the attorney general’s office is right, one wonders what else in the land-use plan is merely advisory.

Bob Glennon, a former APA counsel and executive director, contends the court’s ruling calls into question virtually all of the plan. “What an irony is here,” said Glennon, who is now on the board of Protect the Adirondacks. “We go to court seeking to force the APA to do its job, and it comes away with a free pass allowing it to do so only if it wants to. These are dire times for this cherished Park.”

The Appellate Division may rule this month on whether to grant the plaintiffs leave to appeal. If the motion is rejected, Caffry intends to submit a similar motion to the Court of Appeals itself.

Full disclosure: John Caffry is defending me in a legal case involving paddlers’ navigation rights.

Photo by Carl Heilman II: Cranberry Pond near the Big Tupper Ski Area.

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Phil Brown

Phil Brown is the former Editor of Adirondack Explorer, the regional bimonthly with a focus on outdoor recreation and environmental issues, the same topics he writes about here at Adirondack Almanack.

Phil is also an energetic outdoorsman whose job and personal interests often find him hiking, canoeing, rock climbing, trail running, and backcountry skiing.

He is the author of Adirondack Paddling: 60 Great Flatwater Adventures, which he co-published with the Adirondack Mountain Club, and the editor of Bob Marshall in the Adirondacks, an anthology of Marshall’s writings.

Visit Lost Pond Press for more information.




27 Responses

  1. Jim McCulley says:

    Everyone has know for years the APA’s rules are a guide not law. These environmental groups are opening a can of worms out of spite. The results may be devastating to their own agenda.
    Another part of this is you can not have a zoning agency controlled by the Governor. Only be in charge of a small minority population. Either the APA has to zone all land in New York state or none. The APA act totally disenfranchised the people of the Adirondacks. Since they can not affect change on a gubernatorial level Federal courts would strike it down.

  2. Justin says:

    Why? My town has zoning laws and they are different from the next town a few feet away.

    The forest preserve was created by a constitutional amendment, the APA has jurisdiction inside that zone. The concept they need to zone the state is an interesting one, but probably not legal.

    That said, I do wish a master zoning board did exist for at the very least each county in the state.

    As far as the APA being pure evil, why aren’t the Catskills flourishing? Same forest preserve, no APA? Today it’s the APA, tomorrow something else. I wish the people of Utica had an APA to blame. We all need an APA to take our frustrations out on.

  3. Jim McCulley says:

    Justin, you vote for the board members that appoint your zoning board. Your town/village pass the zoning laws that effect you. Your community has the ability to vote out board members for what ever reason. In this case the entire state votes for a Governor who appoints APA board members. the people being zoned have to small of a population base (100,000 +- NYS 19,378,000)meaning those being dictated to are unable to change the laws. Clearly unconstitutional. I am not blaming anyone just stating facts.
    I have recently seen Utica politicians in action. I have no question whom to blame there…

    • Matt says:

      Jim, don’t take this the wrong way because I wouldn’t suggest you move away(I happen to think you add a valuable perspective to the discourse here), but no one is forcing us to live within the blue line.

      • Matt says:

        Or New York state, for that matter.

      • Paul says:

        Matt, that doesn’t mean that local Adirondack land use decisions need to be made statewide? This isn’t public land we are talking about (there is plenty of that and all of NYS deserves a voice) this is private land. Why should those of us (as in me) who reside outside the blue line get a say in those decisions?

        • Matt says:

          I think that’s a good point, Paul. The history of the APA is fascinating. These are still hard and thought provoking questions, even after 40 years. I don’t have an easy sound-bite answer, and I don’t think there is one. And so the experiment continues…

      • Jim McCulley says:

        Matt, the people were here before the rules were illegally imposed. I see you feel the government is all powerful and the peoples rights be dammed. It’s sad we have people that feel that an illegal taking supersedes the rights people that live in the park. And if you want to use that logic. Those imposing the rules don’t live here so why should they impose their will on others?

        • Matt says:

          Jim, the people who owned property in the park when the APA Act was enacted receive certain benefits not afforded those who bought property after the law was in place. Argue the fairness of those particular details if you like, but the Act itself for better or worse,is lawful. Yes, its bureaucratic, but so are lots of things(again, for better or worse). So how do you propose it be fixed? Remember, 40 years and its not abolished yet. So…?

          • Paul says:

            “the people who owned property in the park when the APA Act was enacted receive certain benefits not afforded those who bought property after the law was in place”

            Matt, the main exemption was given to pre-existing waterfront structures. These were allowed to be expanded without a permit. Since then this exemption has been revoked by the agency (done without any legislative approval). Currently you can expand these structures by 25% w/o a permit. This modified exemption will probably be revoked as well at some point.

      • Paul J says:

        No one forced the colonists to live in the American colonies. If they didn’t like taxation without representation, should they have just moved?

  4. Paul says:

    “Are the development guidelines set forth in the Adirondack Park Land Use and Development Plan mandatory or not?”

    If they were mandatory the Finch Pruyn timber lands that was sold to NYS for addition to the Forest Preserve would have had to have been put under conservation easement as is “guided” in the plan.

    “Due to the importance of the
    forest products industry to the economy of
    the Adirondack region, bulk acreage
    purchases in fee should not normally be
    made where highly productive forest land is
    involved, unless such land is threatened with
    development that would curtail its use for
    forestry purposes or its value for the
    preservation of open space or of wildlife
    habitat. However, conservation easements
    permitting the continuation of sound forest
    management and other land uses compatible
    with the open space character of the Park
    should be acquired wherever possible to
    protect and buffer state lands.”

    It seems like the agency has discretion either way??

  5. Bruce Van Deuson says:

    As an Adirondack Park user not living in NY state, I’m still concerned about land use within the blue line.

    Correct me if I’m wrong, but I’m under the impression that APA land use plans were for the purpose of ensuring that development won’t encroach on public lands, and whatever development there is on private lands will not be done in such a way to adversely affect the overall purpose of having a park in the first place.

    I read about Anne LaBastille’s struggles with the park board when she wanted to build a cabin at a remote pond on her property. I believe the APA was simply making sure the structure would “fit in,” as it were and not be harmful to the local ecology.

    • adkbuddy says:

      At the time, many people believed the APA was pushed by Gov. Nelson Rockefeller and enacted to keep development away from Rockefeller family property.

  6. Bruce Van Deuson says:

    Also, I believe granting variances are a way of gradually eroding the intent of the law. Are there any clearly defined lines over which variances cannot be granted?

  7. BlueWaters says:

    Land use zoning is a power of the State which has been delegated to the Towns through the NYS Constitution. At the time the APA was created there were several massive second home developments being proposed and most of the local governments in the Park had little to no zoning regulations in place. If these projects had proceeded the nature of the Park would have been drastically altered along with adding enormous infrastructure needs that would have overwhelmed local governments.

    The State also established this area as the NYS Adirondack State Park. As the largest landowner in the Park the State has the right to be concerned with land developments that could directly affect Forest Preserve or the Park’s amenities. Since most local governments have chosen not to use the land use/zoning powers granted to them by the State, the State created the APA to fill that void.

    • sally says:

      This is a small thing but, you say “The State also established this area as the NYS Adirondack State Park”

      Actually it is just called the Adirondack Park. Not the ADK State Park. If it were, technically, a State Park, it would be run by the State’s Office of Parks, like every other State Park. But it is not, it is run the the APA and DEC

  8. Phil Brown Phil Brown says:

    I added a quote from Bob Glennon, former APA counsel and executive director who is now on Protect’s board. The quote was in an email. Here is the full text (the “green” refers to RM lands on the APA map):

    Section 802 of the APA Act contains no less than 68 definitions, among them “Land use and development plan,” defined as (a) the Official Map (that fruit salad thing), (b) subdivisions 3 and 4 of section 805, which contain a “character description,” a statement of purposes, policies and objectives, an overall intensity guideline, and a list of compatible uses for each of the 6 land use areas, Hamlet through Industrial Use, and something called the “development considerations,” a list of things APA is to consider in determining whether a project will have an “undue adverse impact” on Park resources, and (c) section 806, the “shoreline restrictions,” building and OSSDS setbacks, minimum lot widths, etc.

    In stating that a part of the Plan (the purposes, policies and objectives for green) was “not a mandatory rule, but a consideration to guide the APA’s exercise of its discretion,” the court said, in effect, ALL of the Plan described above was advisory.

    What an irony is here. We go to court seeking to force the APA to do its job, and it comes away with a free pass allowing it to do so only if it wants to. These are dire times for this cherished Park.

  9. Paul says:

    Resource Management Lands. Clearly this was written when the expectation was these lands would be used for things like timber production. The resource these lands now provide is one related to tourism. Its seems appropriate to allow tourism related development on these private lands.

  10. Will Doolittle says:

    It is ironic. It is ironic that Bob Glennon and others who for years have insisted on the APA’s right to exercise discretion and interpret the law are now fighting against the notion that the APA has discretion. As is usual with these sorts of arguments, it is also ironic that supporters of the ACR and others, who for years have argued that the APA must follow the law as written would now benefit from a court’s ruling that the APA has discretion that it has the right to exercise. Neither side was right before, and neither is now. The APA has discretion, but that discretion must be limited by the plain language of the law. Meanwhile, judges can decide whatever they please.

  11. Will Doolittle says:

    The bottom line? The lawyers (and that includes the judges) get paid, whatever side of the argument they end up on this time. That is the only discretion that matters to the court.

    • Joe says:

      Now the comes the news that Protect was denied their appeal. Of course Bauer says it was just what they were expecting and they will try once more. It really seems unlikely their last step will succeed either.

      To Bob Glennon’s point, it sure is ironic. They said they wanted to stop this project because it was a bad precedent for the Park, it was not about Tupper, but bigger issues making it a higher stakes game.

      Then they lost by huge margins, 10-1, 5-0, and 5-0 again today. Losing at every turn, every level.

      Protect should have let it go. Their repeated losses caused far more damage than the project ever could. Rather than getting one project they didn’t like, they turned it into their worst nightmare. Wow.

  12. Jim says:

    Protect is just a pawn at this point. Both they and the Sierra Club have known for a long time they would lose, but mending fences or letting it go are not part of the equation. At least not for the Sierra Club which has all the money and national exposure. Whenever or wherever the next battle is fought the Sierra Club will point to the timeline of this project as a threat and reality check to any opponent.