Wednesday, March 17, 2021

Loss of Institutional Memory at the APA

acrInstitutional memory is important. It reminds folks who join an institution of any kind what the mission of that organization is, what has come before them, what was considered important then and why, what continues to be the mission today. It strengthens the links in a longer historical chain that can easily be weakened if there is no one left in the institution to remember, to teach and to motivate the newcomers.

Veterans should be empowered to help newer hires understand that they are part of an important historical legacy. This is not to say that the institution cannot adapt to new circumstances and improve. It must. It is to say that there ought to remain a commitment to always keep the legacy in view so that the compass points in the same direction.

Adirondack Park Agency staff are highly skilled resource professionals doing a difficult job on a huge scale, working under difficult legal timelines and, like the rest of us, isolated from their colleagues during the pandemic.  However, judging from comments some of them made last week during the permit issuance for the Woodward Lake major subdivision, I believe the Adirondack Park Agency has lost significant amounts of institutional memory. That can lead to mission creep.

Statements were made by the APA’s staff last week about their fundamental scope of responsibilities that would not have been made by many of their predecessors and, in fact, seem contradicted by their predecessors. The laws and regulations have not changed. So, what has changed? In my judgment, it concerns loss of institutional memory, leadership and of those empowered to shine a directional light and conduct regular training for current employees.

In general, the statements made by APA staff last week during the Woodward Lake subdivision review suggested a far narrower, far more constrained view of APA scope of duties under the APA Act and regulations than their predecessors had.

woodward lake

Marsh at Woodward Lake. Photo by Dave Gibson

I will now paraphrase some APA Staff statements which I heard made about agency review of the 34-lot Woodward Lake subdivision, which ultimately received a permit last week:

Our only standard for judging a project layout or design is the impact the specific design will have on the resources.

We should only hold a public hearing if the existing permit review is missing key facts or has violated regulatory standards.

There is some flexibility in the act to otherwise judge what constitutes undue adverse impact, but largely this is a question of whether clear regulatory standards such as shoreline setbacks, etc. are being violated or not. Here, at Woodward Lake, our regulatory standards are being exceeded so it is unlikely there can be undue adverse impacts.

We are not a design agency. We can’t redesign projects that are given to us by applicants.

Only the facts on the record should guide your decision.

The applicant has an expectation based on our land use areas about the number of developable units he can build. We can’t significantly reduce those building rights or opportunities or that may constitute a taking of private property.

The Alternative 2, which some letter writers claim is the preferred conservation design and which clusters the subdivision, cannot meet our regulatory standards and would be worse for the environment than the preferred alternative of the applicant.

We’ve done all the impact analysis that needs doing, objectively. Therefore, if you vote “no” on this project, we run the risk of begin sued by the developer.

Compare the above conclusions that the APA lacks the legal authority to reshape or redesign projects with statements issued ten years ago by former agency staff. These staff were witnesses during the APA’s 2011 adjudicatory public hearing on the Adirondack Club and Resort subdivision project in Tupper Lake. I quote their statements from the public hearing record:

the Agency still has a great deal of latitude to determine whether the issue a hand for which the I information is deficient rises to the level of an undue adverse impact.

The impact zones have not been collapsed.  They haven’t been overlapped to the greatest extent possible, in my opinion.  There are still some areas, I think, where driveways can be shortened, dwellings can be moved closer to roads, to existing roads, and that sort of thing.

Are there other modifications that you think could reduce the impacts?”  Certainly.  A reduction of the number of units.

Alternatives to a large subdivision should always be considered.  Alternatives analysis is an inherent part of any SEQRA review. In the case of Big Tupper, alternative plans for clustering in Resource Management, for concentrating all of the development around the ski center and development proposals that involve different numbers of housing units, particularly a smaller number, should be developed and compared to the proposed project. The analysis should include both economic and resource costs and benefits of the project as compared to the alternatives.

In my experience this process (of identifying alternatives) can be short-circuited by identifying a preferred alternative prior to conducting the analysis. That is what has occurred in the case of this proposed project. In my opinion, the analyses noted above do not constitute a true alternatives analysis. Different scenarios were not described and impacts were not compared…In my opinion there has not been an organized and rational discussion of reasonable, potential alternatives.”

Good design collapses and overlaps the zones of impact from the development activities to minimize negative effects… One alternative would be to eliminate the eight large Great Camp Lots east of Simon Pond, and reduce the size and spatial spread of the smaller western and eastern Great Camp Lots in RM. It’s possible under such a scenario that the eight large Great Camp Lots eliminated from east of Simon Pond could be relocated closer to the small eastern and western Great Camp Lots and closer to the ski resort. This would reduce road mileage and infrastructure costs, minimize loss of open space, minimize habitat fragmentation and allow for continued effective sustainable forest management east of Simon Pond. This alternative scenario, although suggested by Agency staff, was never proposed by the Project Sponsor nor was it evaluated to the same level as the existing proposal.

In the case of ACR in Tupper Lake, some staff went into that hearing stating that alternatives should be subjected to the same level of rigor as the preferred layout (but were not).  Alternatives which significantly re-designed the project to achieve legislated goals were perfectly legal. In the case of Woodward Lake, agency staff felt quite differently. They appeared to subject the applicant’s one design alternative to little debate or scrutiny. They simply accepted the alternative as presented, critiquing it because it would exceed measurable slope standards and not accommodate sufficient setbacks of principal buildings from wetlands and streams and not afford sufficient room for on-site septic setbacks.

Staff did not work with the Woodward Lake applicant to reduce the number of principal buildings to avoid these natural resource constraints, and then concentrate the remaining number of lots in ways to overlap their negative impacts to achieve a better, overall conservation design. That would have been the way some APA staff would have proceeded in 2011, based on the same law and regulations in effect today.

Today’s APA staff appear to treat potential building lots as development “rights.” In fact, APA staff used the words “development rights” rather frequently during the Woodward Lake discussion.  The term “development right” is not found anywhere in the Act. The Act characterizes overall intensity guidelines (OIG) as “the overall intensity of development for land located in any ____ area should not exceed approximately ____ principal buildings per square mile.”

For instance, I own 45 acres in a Rural Use land use area in the Park. Under the law, the OIG for Rural Use shall not exceed, on average, 75 principal buildings per square mile or approximately one building for every 8.5 acres. I might expect to be able to subdivide and build 5 principal buildings on my 45 acres.

Former APA staff characterized these as “opportunities,” not “rights” that I can count on. All manner of “development considerations” constrain that number as a guideline. These considerations under Section 805 of the APA Act include measurable slopes, soil characteristics, setbacks from water and depth to ground water, but also include less tangible factors such as “forest resources,” “open space resources” and “quality and availability of lands for outdoor recreational purposes.” These and other listed considerations are not easily quantified and require the exercise of judgment in carrying out the agency’s mission.

By eliminating additional lots and the exercise of their full powers under the Act, APA could have advanced a Woodward Lake layout that would keep more than half the lakeshore undeveloped, eliminate the new road, keep the forest and wildlife habitats unsubdivided, and comfortably fit a goodly number of new home lots on good soils in one location of the project area. Such an alternative, in Adirondack Wild’s judgment, would be consistent with the APA Act.

Staff now assert that a re-design falls outside APA powers. Judging from statements made in 2011, that was not the feeling of prior APA staff. Why this change?  Again, in part it reflects a loss of institutional memory, orientation, and training. That all assumes strong leadership. More training is needed to explain how the overall intensity guidelines work and how application of the development considerations, good judgement, and a hard look at all reasonable alternatives may involve a reduction, where necessary, in the number of development opportunities to achieve better conservation design of development and avoidance of undue adverse impacts.

This broader view of APA responsibilities under the Act can be seen in 1991 when the agency altered the applicant’s gridding of the entire shoreline of Butler Lake into home lots, instead reducing proposed 96 lots to 23 lots clustered on one portion of the lake’s shoreline (APA Project Permit 89-312).

This broader view was also exercised in 2004 when the agency significantly altered an applicant’s desired “piano key” layout of 8 new home lots to create, and I quote the staff’s own characterization, “a model for conservation design of development, impact avoidance, and protection of large, contiguous tracts in land in land classified as Resource Management” (Persek project, APA Project Permit 2001-76 in the Town of Horicon).

It was also exercised in 2012 in the review and approval of the Highland Farmers, LLC subdivision in Keene, where some lots were re-arranged by agency staff to achieve better overlapping of the ecological impact zones of development.

Adirondack Wild has cited many other examples of the APA’s working with applicants on permitted alternatives that significantly redesign what the applicants first submitted to the agency.

So, why not at Woodward Lake? A few APA members also registered discomfort with an ever-narrowing staff view of APA’s responsibilities. Said one during the discussion of Woodward Lake, and I paraphrase: “I was put on the APA because of my background and knowledge and to exercise good judgement about what may constitute an undue adverse impact. These are not purely cut and dried or technical issues.”  Said another, again I paraphrase: “We’re getting this development fully baked. Can we please look at reasonable alternatives earlier in the process? There are issues here that transcend technical facts.”

Photo at top: Testimony during the ACR public hearing of the APA, 2011

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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 PreserveDuring 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.

16 Responses

  1. I strongly second David’s analysis. It is very disheartening to see the fine staff at what used to be a major land use agency falling prey to either political correctness or a serious loss of institutional memory. Perhaps if the agency had more truly public membership on the board and respected information from the public who has long watched and cared about agency decisions, this sad decay might be reversed.

  2. Robert DiMarco says:

    Until we make decisions with Humans interest coming second is there really any hope for the future of this Earth?

  3. Boreas says:

    APA’s job isn’t to act as simply a zoning agency. They need to be reacting to exceptional amounts of development and its impacts on exceptional properties within the Park. They aren’t needed as a zoning body. Zoning bodies aren’t typically involved in evaluating environmental impacts. APA needs to be requiring these studies and evaluating them with at least a minimal goal for maximizing protection – especially on waterfronts and other wetlands.

  4. JonB says:

    David, that is an interesting take on this issue. I grew up in a quaint town a little ways away from the Adirondack Park, and it was a wonderful place to experience as a child thanks to the old-timers on the Town Board who would not approve any major developments that would commercialize the area in the type of way that we have seen in the past couple of decades throughout the Mohawk and Hudson Valleys–construction of shopping malls, corporate plazas, parking lots, etc. in place of idyllic neighborhoods and pastures. When the senior management of those boards are gone, the only obstacle to corporate developers will be gone and those towns will surely change.

    I had never thought about the Adirondack Park in that way before. I had always seen it as a legislative patchwork of zoning laws and environmental regulations. My understanding has been that the danger lies in the tendency of the bureaucracies tasked with interpreting those regulations to sway with the political tides. And, yes, this populist schism of the past 5 years has undoubtedly not been a good thing for long-standing conservation efforts that inevitably will be the first casualty of humanist infighting, but forgetfulness of the sacrifices made by our forbearers–forgetfulness by the people, leadership and institutions–must definitely be considered as well.

    Now, I can only hope that this confluence of recent cataclysms does not sink its teeth into the protections of the Park. The danger is that, if that were to happen, most people would be indifferent in their forgetfulness of what we once had. That is why conservation is so important. Keep up your essential work.

  5. Maybe the board has also realized that the pressure from the Adirondack council and the other environmental organizations have made the process of development so warped because of lawsuits or threat of lawsuits or constantly wanting to change who the board members are etc They are only doing what is right and fair to protect private landowners

    • Boreas says:

      Protecting private landowners isn’t their primary job.

      Our Mission

      The mission of the APA is to protect the public and private natural resources of the Adirondack Park through the exercise of the powers and duties provided by the Adirondack Park Agency Act, the Adirondack Park State Land Master Plan, the NYS Freshwater Wetlands Act and the NYS Wild, Scenic, and Recreational Rivers System Act.

      • JonB says:

        Boreas is right. The only reason the APA staff members mentioned lawsuits as per David’s article was in proclamation of “fear” relating to future lawsuits brought against them by private land owners, not environmental groups. If the APA was afraid of environmental lawsuits, the logic follows that they would be taking the opposite position in those hearings. The Adirondack Park Act, which created the APA, was–correct me if I’m wrong–intended to prevent major subdivisions from being developed within the Park.

  6. GlideXC says:

    The APA seems to have shifted from protecting the Adirondacks for future generations to helping developers get around the regulations to maximize current profits.

  7. AdkAck says:

    Plain and simple, this is a joke and has opened the flood gates.

  8. Pablo Rodriguez says:

    The APA has no institutional memory, i.e., they used to do what we told them to do and now they don’t.

  9. Mike says:

    So these developers just followed the ACR playbook and it worked. Why would any other developer in the future not just do the same? So the APA is now just a paper tiger?

  10. Rick Hoffman says:

    Dave Gibson’s observations are, unfortunately all too correct. The APA Act is no mere zoning law comprised of setbacks and density standards, that if met, guarantee approval. Instead, the law requires the APA to approve a project only if it finds that it would not result in “undue adverse impacts” upon a host of environmental factors. While this standard seems somewhat subjective, the courts have held that it must be supported by “substantial evidence” in the record that provides a sound basis for decision making by the APA Board.

    The 1991 case of Friedman v APA, 165 AD2d 33, lv denied 78 NY2d 854 is instructive. After public hearing (curiously, despite intense public interest, the Woodward Lake subdivision was not the subject of a hearing), the APA drastically modified and redesigned the developer’s proposal, by reducing the number of lots from 30 to 15, expanding lot widths from 98 ft. to 250 ft., and other actions. This was done because of the APA engineer’s sworn concerns about the “cumulative impact” of highly engineered onsite waste disposal systems upon the water quality of Horseshoe Pond Brook.

    APA’s actions in redesigning the project through imposition of permit conditions was upheld, in spite of the fact that “cumulative impact” upon environmental resources appears nowhere in the APA Act as a standard of review. APA’s reduction in the number of lots otherwise permitted by the overall intensity guidelines, and redesign of lot widths, was amply supported by its legitimate concern about long term and cumulative water quality impacts.

    Perhaps the struggle of the current APA members over their review responsibilities is
    due to a lack of institutional memory. Certainly the difficulties of working remotely hamper their efforts. I believe the lack of strong leadership, however, is the principal reason for the current timidity. The APA has had no chair, for some time. It is well to remember that unlike other Executive Agencies, such as the Departments of Health, Environmental Conservation, State, Transportation, etc., which are headed by a single individual, decisions of the APA are to be made by the Board. The APA Act, enacted 50 years ago, empowered the APA Board in a way unique among State agencies. That Board once led a proud and independent agency that achieved hard won gains that are in danger of being squandered.

    Rick Hoffman
    Former APA Board Designee, Sec. of State

  11. Roger says:

    Dave, thank you for your very important historical perspective on the role of the APA. Although I hesitate to use the term ‘historical’ which has dustbin-of-history implications. The term ‘experiential’ perspective probably better applies to your article. You clearly point out that the APA staff has an affirmative duty in these matters. The APA act states: Rural Use classified areas, “are characterized by a low low level of development and variety of rural uses that are generally compatible with… the preservation of open space. These areas…provide. the essential open space atmosphere that characterizes the park.” My historical perspective/recollection is that the “Rural Use’ classification was intended as a classification to encourage such rural uses as farming. APA staff have clearly failed in this instance to promote the intent of the APA Act.

  12. Loss Of Institutional Memory At The APA

    Adirondack Wild partner Dave Gibson argues that discussion of the Woodward Lake subdivision application last week “…. suggested a far narrower, far more constrained view of APA scope of duties under the APA Act and regulations than their predecessors had.” He also argues that “Today’s APA staff appear to treat potential building lots as development “rights.” In fact, APA staff used the words “development rights” rather frequently during the Woodward Lake discussion. The term “development right” is not found anywhere in the Act.“

    Review Board Note: It is not surprising that the term “development right” does not appear in the APA Act. Property rights, which include “development rights”, come from much higher authority, namely the due process clause of the 5th Amendment of the United States Constitution, which provides “nor shall private property be taken for public use without just compensation.” That protection applies to federal actions, but is made applicable to the states, including New York State, by the 14th amendment,

    “There are two basic ways government can take property: (1) outright, by condemning the property and taking title; and (2) through regulations that take uses, leaving the title with the owner — so‐​called regulatory takings.” Property Rights and the Constitution, Roger Pilon, Cato Institute.

    The United States Constitution, and similar provisions in the New York Constitution, provide the “development rights”. Administrative agency regulations, such as the regulations of the APA take them away, usually without just or any compensation.

  13. Jack Delehanty says:

    The Adirondack Park Agency Act was a noble attempt born of the nascent environmental movement of the early 1970’s and New York’s stopgap response to quell rampant land speculation and development threats within the Adirondack Park. The Act has always tread on the margin of offending the Fifth Amendment’s “taking clause”. Yet in its almost fifty years of existence, it has passed the muster of constitutional law by the very application of the “undue adverse environmental impact” test ingrained in the organic Act. But perspectives of just what constitutes such an impact change over time, influenced by both the leadership of Agency board members and enormous political pressure exerted on both board and Agency staff originating at the highest state level. That unfortunate and unpredictable fluid response in governing environmental protection by land use control is not good for either those who would maximize development returns by monetizing every acre nor for those who would preserve the land intact for generations to come. An obvious resolution for everyone is a change in the law. The blending of requirements for conservation development standards and review for any new project within The Park would provide better guidance and result in fewer unwanted and harmful impacts within The Blue Line. It would also improve the predictability of outcomes. The rub is, there are those who just do not care about my Adirondacks enough to do that. People complicate everything.

  14. Charlie Stehlin says:

    Robert DiMarco says: “Until we make decisions with Humans interest coming second is there really any hope for the future of this Earth?”

    Very right-on you are Robert! I’ve been saying the same for scores of blue moons yet hardly has my words fallen upon the right ears as nothing has changed we keep doing the same over and over………………..and over!