Wednesday, October 31, 2018

Bauer: Long Pond Easement Changes A Bad Deal

The Department of Environmental Conservation (DEC) recently wrapped up a public hearing on proposed changes to the 18,950-acre Long Pond Conservation Easement located in the Town of Colton, St. Lawrence County. The state purchased this easement for $1.667 million in 1999 and the taxpayers of New York State have paid the state’s share of all local taxes on the property since then. The DEC held this public hearing because it wants to rewrite this conservation easement to allow 15 leased residential camps to remain on the property in perpetuity.

At the time that the state purchased the Long Pond Conservation Easement in 1999 there were six camps that were allowed to remain on the tract in perpetuity due to special deeded rights. At that time there were nearly three dozen other smaller hunting and fishing camps on the property that were grandfathered and given exclusive hunting and fishing rights for 15 years. The 1999 easement purchase included blanket public recreational rights, but they were deferred until 2014 to keep the peace among the club members and local politicians.

In 2014, the exclusive club rights ended and the public was allowed to use these lands for hunting, fishing, hiking, and bike riding, among activities. Given the extensive road network that exists on this actively logged landscape, the public was allowed to access these activities with motor vehicles, including ATVs. While the public was allowed into the Long Pond tract in 2014 to fully realize the rights it had paid for in 1999, the camps were allowed to remain as local politicians leaned on the DEC on behalf of the clubs. Click here for maps and pictures of the Long Pond easement lands.

Under state law, the DEC is permitted to modify a state-owned conservation easement only after the Commissioner determines “that the easement can no longer substantially accomplish its original purposes or any of the purposes set forth in section 49-0301 of this title.”  Nowhere in the DEC paperwork that it took to public hearing was there any such determination that the Long Pond Conservation Easement could not accomplish its original purposes. The 1999 easement includes language about two main purposes. The first was to “limit future development” and the second was for “the right of public access to the protected property for recreational purposes.”

Here’s the case DEC made for why it has to change the Long Pond Conservation Easement (LPCE). In the modification, the DEC states that it is changing the easement because the new underlying fee landowner, Danzer Foresland, Inc., which purchased the forest management rights to the easement in 2005, requested to keep the hunting camps. Here is the DEC language in the modified easement:

WHEREAS, pursuant to 6 NYCRR Part 592.3(4), the proposed modification of a DEC conservation easement shall result in a net conservation benefit to the People of the State of New York; and

WHEREAS, Grantor desires to re-establish their right to have more than six (6) camps to use as hunting, fishing and recreational camps (as “Hunting and Fishing Cabin” as defined by the Adirondack Park Agency); and

WHEREAS, in exchange for the modification of the conservation easement, the Grantor has provided consideration which will result in a net conservation benefit to the People of the State of New York.

There is no determination. There is no finding. There is simply a statement by the DEC that it wants to make this change and is going to compensate the people of the State of New York with some kind of “net conservation benefit.” The DEC is playing games with state law.

It’s important to note that Danzer purchased this conservation easement in 2005 as a willing buyer with full knowledge about the terms of the easement. In 2005, it was plainly understood that all but six hunting camps on the Long Pond tract were to be disbanded at the end of 2014. Danzer’s effort to change the Long Pond easement is purely financial, an effort to retain the lease income from these 15 camps in perpetuity. There’s also a view within the DEC of staff opposed to these changes that Danzer was leaned on hard by Albany and the company has no interest in the 15 additional camps and lease income but is accommodating the political whims of the DEC Commissioner.

The DEC has failed to justify the need to modify the LPCE. The loss of considerable public recreation rights through the retention of 15 camps permanently spread far and wide through the lands and the damaging permanent residential development on these lands exact a high public cost.

To meet the requirements in the statute for the compensatory “net conservation benefit,” the DEC has offered up purchase of 300 acres of new State Forest at Whiskey Flats in St. Lawrence County. This purchase is designed to offset the diminishment of public recreational rights and environmental degradation on the tract caused by allowing 15 residential structures and their associated uses to remain on the lands permanently. These 300 acres are State Forest and will be actively logged lands. The relevant part of the DEC regulations on the “net conservation benefit” (section of 6 NYCRR Part 592) requirement for changing state conservation easements states:

  1. The proposed modification of a DEC conservation easement shall result in a net conservation benefit to the state, which must be calculated and considered within the spatial confines of the conservation easement in question or in the surrounding contiguous and adjoining lands, as determined by the department, after public comment, including consideration of any change in the level of public recreational opportunities or any change to the limitations or restrictions on the development, management or use of the property, or any other real property owned by or under the control of the grantor, for the purpose of preserving or maintaining the scenic, open, historic, archaeological, architectural, or natural condition, character, significance or amenities of the area where the property is located in a manner consistent with the public policy and purpose set forth in ECL section 49-0301.

As stated above the “net conservation benefit” lands are supposed to be “calculated and considered within the spatial confines of the … easement … or in the surrounding contiguous and adjoining lands” of the conservation easement. The Whiskey Flats State Forest is more than ten miles away and outside the boundary of the Adirondack Park. The Whisky Flats land is neither “contiguous” nor “adjoining” and fails as a matter of law to meet the quoted regulatory criteria. Moreover, the exchange of 300 acres outside the Adirondack Park for significant impairment of use for almost 19,000 acres within the Park is not a “net conservation benefit.” Not least in importance, the regulation clearly required a specific accounting “calculated and considered” to demonstrate the benefit. There is no “calculation” here; there is merely a conclusory statement that there is a benefit.

The 15 leased camps have scores of total members who will maintain these leased camps as de facto private residential inholdings. These buildings are used year-round and will only serve to alienate the public from these lands as they will create a 2-tiered system: people with exclusive private recreational rights to have a camp on public lands and those in the general public with limited recreational rights to visit the property. This is contrary to the purposes of the easement, which was purchased to protect the environment and expand public recreation opportunities.

There is an important role for conservation easements in the Adirondacks. The last 30 years have seen tremendous benefits to the overall protection of Adirondack forests and the open spaces from the state’s purchase of over 780,000 acres of conservation easements. It’s far better for the Adirondacks that these lands produce logs for market rather than lots for second (or third or fourth) homes.

I have advocated for conservation easements throughout my time in the Adirondacks and continue to see easements as a vital tool for protecting natural resources and our great forests, a wise investment in the environment and economy of the Adirondacks. One reason is that I have always seen conservation easements as a safety valve for the Forest Preserve. Easements, given their active industrial scale forest management and extensive road networks plied by 18-wheelers and 30-ton feller bunchers, are lands with a suitable infrastructure for public motor sports, such as snowmobiling and ATV riding.

Two pillars of the conservation easements program are environmental protection and public recreation, which can coexist with an actively logged landscape. Unfortunately, in the proposed modification to the Long Pond Conservation Easement, environmental protection and public recreation values are being used as poker chips in a bad bet by the DEC waged for political expediency.

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Peter Bauer is the Executive Director of Protect the Adirondacks.

He has been working in various capacities on Adirondack Park environmental issues since the mid-1980s, including stints as the Executive Director of the Residents' Committee to Protect the Adirondacks and FUND for Lake George as well as on the staff of the Commission on the Adirondacks in the Twenty-First Century. He also worked at Adirondack Life Magazine. He served as Chair of the Town of Lake George Zoning Board of Appeals and has served on numerous advisory boards for management of the Adirondack Park and Forest Preserve.

Peter lives in Blue Mountain Lake with his wife and two children, enjoys a wide variety of outdoor recreational activities throughout the Adirondacks, and is a member of the Blue Mountain Lake volunteer fire department.

Follow Protect the Adirondacks on Facebook and Twitter.




13 Responses

  1. Chris says:

    With blatant bait-and-switch like this, with complete refusal to explain, there’s no wonder why there’s a loss of faith in government.

    • Paul says:

      Does “bait and switch” usually include a detailed proposal, public comment, etc.

      The state has “explained” what they feel is a good reason for the change. You may disagree.

      One of the other reasons here may be that it will allow the owner to better finance the maintenance ad holding costs of the timber land with this additional lease income. Giving them a better chance of keeping the land in active timber management and to avoid having to sell it and perhaps break it all up. Many of these easements include provisions for some other camps usually on what would be subdivided parcels beyond the smaller hunting camps. That part of the story is usually not conveyed.

      In this particular case – 6 parcels and 6 camps. Here is a link to the original 99 agreement:

      https://www.dec.ny.gov/docs/lands_forests_pdf/longpondce1.pdf

  2. Boreas says:

    Peter,

    Thanks for bringing this to our attention. I take it this is essentially a done deal? Are there any figures on the area of “exclusive” land or water rights each camp will be designated? Could there be any consideration of moving or “clustering” many of the camps? Taxpayers paying for exclusion to large areas of the tract(s) sounds like a boondoggle to me.

    • Paul says:

      It looks like the only “exclusive” land rights are to small 1 acre parcels around the camps, nothing else, and these changes are in exchange for additional protected land. 300 for 15. It looks like the 15 camp lease holders had to pay the state (the $ is I escrow now) for the market value of the property as part of getting the option to the “lease” the camps.

      DEC has shared all the details including the original documents and the proposed changes here.

      https://www.dec.ny.gov/lands/114528.html

  3. Paul says:

    “they were deferred until 2014 to keep the peace”

    What does this mean?

    • John says:

      This means, if experience is any guide, that many of the local nobility have interests in these camps, they want to maintain their status, and DEC wants to please them. An unhappy local legislator/ town board member/supervisor/business owner might take out his displeasure on DEC. So the reasoning goes.

  4. Scott says:

    DEC has a pattern of doing special privilege deals and usually at the expense of the public. DEC needs to learn to just say NO and put the environment and the public first. This deal reversal deal will continue another bad precedent.

    • Smitty says:

      Peter’s right. When the notice of this deal came out, I decided to drive to Long Pond to check it out. Turns out the road is so bad you can only get there with an ATV. The easement is nearly the exclusive domain of camp owners and an ATV playground. Maybe if the road was improved it wouldn’t be so inaccessible for everyone else. But exchanging 300 acres for no lease fees and minimal taxes is a real sweetheart deal for campowners and a bad deal for the public.

  5. James Marco says:

    Thanks, Peter. While I have paddled through there on many occasions, I only stayed on Long Pond twice. It is too public and to hear the roads is annoying, at best.

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