Monday, December 8, 2014

Will An ‘ACR Interpretation’ Be APA’s New Default?

Woodworth and Hines LakesPeter Bauer has well summarized the current Adirondack Park Agency application by New York Land and Lakes Development LLC for 24 housing lots (plus five common lots, including the lakes themselves) on 1,120 acres around Woodworth and Hines Lakes in the southern Adirondack Park, Towns of Bleecker and Johnstown.

The land is zoned Resource Management: “where the need to protect, manage and enhance forest, agricultural, recreational, and open space resources is of paramount importance.”  The basic purposes of RM lands is “to protect the delicate physical and biological resources, encourage proper and economic management of forest, agricultural and recreational resources and preserve the open spaces that are essential and basic to the unique character of the park.”

Then, there is this part of the law: “resource management areas will allow for residential development on substantial acreages or in small clusters on carefully selected and well designed sites.”

A reasonably minded, interested observer, but not necessarily an ardent Park advocate, might well look at the land’s zoning, consider the maps and the land- consuming, piano-key subdivision design (ranging from 6 acres to 145 acres each) and factor in the two undeveloped lakes and the larger landscape in which the subdivision would be embedded, including the abutting “forever wild” Forest Preserve, and asks themselves: “This is proposed in the Adirondack Park, where development is supposedly so restricted? These are large lots, or housing clusters on carefully selected and well designed sites”?

When informed that it is a completed application and that the Adirondack Park Agency may well vote at its next meeting, the average person might ask: “Would the APA ever allow this”?

Indeed, they may.  The APA under Governor Andrew Cuomo has already crossed that Rubicon in a very big way in Tupper Lake. For the Adirondack Club and Resort, the APA declared that many, many houses on 4,200 acres of Resource Management were perfectly compatible with the “paramount” purposes cited in the law if deed restrictions prevented further “development” and so long as “open space” was kept on the building lots.

This “ACR interpretation” of what is permissible in Resource Management ignored the fact that the ecologically integrity of that open space would be severely compromised and diminished (according to actual hearing evidence) by the cumulative, spread out impacts of the cleared lots, the outbuildings, the roads, driveways and cars, the pets, the lighting, and other impacts of land fragmentation, meaning the breaking up of large, contiguous habitats into smaller pieces.

It’s important to note that this “ACR interpretation” of the priority home development is accorded in Resource Management did not begin in 2011 under the Cuomo Administration. I sensed it beginning as APA veterans who launched and led the APA in the early 1970’s (and who believed strongly in the law’s purpose to protect the region) began to retire, or who were forced to retire by those in authority in Albany.

For instance, I remember an incident in 2007 after the APA voted to send the ACR project to adjudicatory hearing. The applicant Michael Foxman asked for “mediation.” Park advocates like Dan Plumley and me were sitting in Tupper Lake with the applicant, his team, APA staff and other parties to a future hearing. I asked an APA staff supervisor in charge of regulatory review if Michael Foxman’s application for over 30 large homes spread all over the Resource Management zone could realistically survive close staff scrutiny. Without hesitation, he said that it could, with caveats and conditions.

Somewhat in shock by that answer, I remember looking back at a veteran agency staff member sitting in the room, someone who had been at the APA since the 1970s. That staff member was shaking his head in sharp disagreement with what he had just heard from his colleague.

That staff member, we were to find out later at the hearing, had written a memo to his supervisor which described why the ACR lot layout and project design was not at all what the Legislature and the APA had intended for Resource Management – that “substantial acreages” referred to the tens of thousands of acres under pulp and paper industry or private club ownerships in existence when the APA began, and that “housing clusters on carefully selected and well designed sites” referred to truly small compounds of buildings set in one small sector near existing infrastructure within the much larger matrix of substantially managed (for timber, pulp or recreation), but undeveloped forests. His memo also described ways in which ACR could be substantially redesigned to comply with the law and past practices of the APA.

This staff member retired and the points in his memo did not prevail, obviously.

Remember also, the justifications APA cited for its ACR 2012 permit: the repeated references by APA Members and Staff to years of economic troubles in Tupper Lake, to how the ACR would result in renewed investment and restoration of Big Tupper Ski Center, to the Agency’s special concern for the economic future of that town and to how much ACR’s actual and induced employment, sales and tax benefits might, could, should, would be a boost and a boon to Tupper Lake’s future.

Of course, those overblown aspirations and assertions were mostly unsubstantiated by the public hearing evidence on which APA was supposed to base its decision. APA ignored much of that hearing evidence, and in any case was under orders to approve ACR as designed.

Not so in Bleecker. I am not aware of a longstanding culture of concern or sympathy at the APA for the future of northern Fulton County, or of great purported economic benefits from construction of the Adirondack Land and Lakes development. There will be tax benefits locally from the development’s homeowners, but the costs of police, fire, emergency and other services the subdivision will require will likely exceed the tax benefits. There is no ski center, or nearby hamlet with businesses that will purportedly benefit. The benefits will accrue to a few Adirondack Land and Lake principals and investors. The burdens will be spread out on the public, on the towns and county, and on the Park’s wild and working forested landscape.

Assuming Adirondack Land and Lakes, LLC is on APA’s January meeting agenda, that would make three years since its 10-1 vote on the Adirondack Club and Resort, three years since APA Member Richard Booth challenged his colleagues to join him in voting against ACR, partly on the basis that a yes vote would send a negative message to other applicants that this type of development on Resource Management is legal and acceptable. Furthermore, that there were many alternative ways to design ACR which would avoid this violation, alternatives that the applicant failed to analyze.

And it would be three years since other APA Members “agonized” over their ACR vote, or said that it had been an education for them, or said they would demand that things be done differently in the future.

So, APA Members face yet another test. Will they ask their Staff hard questions whether Adk Land and Lakes LLC proposal and design comports with Resource Management?

Will they hold an adjudicatory public hearing, since the proposed design should be viewed as impermissible without substantial design changes that don’t chop up the forest into 24 separate ownerships, and won’t have such substantial impacts on 1,000 acres (actually much larger, if you factor in the ecological impact zones of development)?

Or will APA simply allow “with conditions” two beautiful wooded lakes and an undeveloped mountain landscape abutting the NYS Forest Preserve to be fragmented by a subdivision typically found in most places USA?

If so, will APA attempt to justify such a subdivision as legal and protective of the Park’s Resource Management zone?

We may find out the answers at the next APA meeting, January 15, in Ray Brook.

 

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David Gibson

Dave Gibson, who writes about issues of wilderness, wild lands, public policy, and more, has been involved in Adirondack conservation for over 30 years as executive director of the Association for the Protection of the Adirondacks, executive director of Protect the Adirondacks and currently as managing partner with Adirondack Wild: Friends of the Forest Preserve

During Dave's tenure at the Association, the organization completed the Center for the Forest Preserve including the Adirondack Research Library at Paul Schaefer’s home. The library has the finest Adirondack collection outside the Blue Line, specializing in Adirondack conservation and recreation history.

Currently, Dave is managing partner in the nonprofit organization launched in 2010, Adirondack Wild: Friends of the Forest Preserve.




6 Responses

  1. Smitty says:

    Thanks for the analysis and bringing this issue to light. While one could argue that the ACR project in Tupper Lake had significant social benefits – bringing Big Tupper Ski Area back to life and economic benefit to a distressed community, no such benefit can even be claimed for this project. Hopefully the APA recognizes the difference.

  2. mike says:

    Houses and subdivisions of Resource Mgt land are legal, of course. Based on what has been written here, this strikes me as perfectly legal. It fits the density rules. The range in lot sizes is good. There are even 5 common lots.

    I don’t get the idea that 24 different owners is somehow ecologically different from 1 owner. Critters have no concept of lot lines. Everything I read these days suggests lots of critters like small openings in forests, edges of the openings, and even a tasty garden to eat here and there.

    Thanks for writing nice small project. I hope it is approved.

  3. Paul says:

    “the Legislature and the APA had intended for Resource Management – that “substantial acreages” referred to the tens of thousands of acres under pulp and paper industry or private club ownerships in existence when the APA began”

    I think the whole issue here is about this. If the legislature and the APA really intended “substantial acreages” to refer to tens of thousands of acres it seems pretty odd that they would set the bar at 42 acres on RM lands?

    Dave, even if you look at the APA permit that was given to the folks selling the Champion easement lands. Even there some of the development rights granted were much smaller than 10 thousand acres. Including what was basically a housing development on one part of the tract. That was back in 1998 this is by no means a new thing that began with the ACR development as some groups are trying to portray it.

  4. adkprotectionist says:

    These homeowners will never cut down their forest, and instead husband it for generations. That’s protection and preservation in my book.

    I worry more about the so-called ‘conservation easements’ that bring periodic complete destruction and removal of the whole forest. Where is the ‘preservation and protection’ in that approach? Because there are no lot lines? Phooey.

    …but a house here and there, in a otherwise untouched forest, is a good forest preservation scheme, I think. Such a forest will remain intact and untouched forever, perhaps becoming some family’s hallowed ground like so many camps are. Their children will name their favored trees. It should have good wildlife too since they like the occasional open area when low greenery grows that they can eat.

    I think this sort of project is perfect for RM lands. It certainly makes more sense as a protection/preservation scheme than the cycle of destruction we bring to industrial timberland.

    • Paul says:

      I think this is true. On the Champion lands the paper company hacked it before they sold the land and the easement. Then the owners who bought it in 98 hacked it. Then they sold it this year (right on schedule a TIMO’s investment cycle is 10-15 years on average). This land would be much better protected if it were “owned” in smaller more affordable parcels. It would still be under a conservation easement so the public would have access and development is very limited. But it would be owned by someone who actually cares about the land. Part of the issue here may be that the 480A that is giving the owners of the large tracts a tax break prevent subdivision. If they subdivide, even into reasonably large parcels they have to pay all the taxes that would have been backed up w/o the 480A. They are basically trapped in the cycle. The only way out is to sell to another “hacker” or to the state if they are interested.