Wednesday, January 5, 2022

In Adirondack Common Cause

Coalition

Adirondack Wild and I have been among those who heralded the NYS Court of Appeals ruling in May that the only way for the Department of Environmental Conservation to construct snowmobile community connector trails in the Adirondack and Catskill Forest Preserve was through a constitutional amendment.

Protect the Adirondacks! lawsuit had taken seven years to reach that court. New York’s high court decision upheld the NYS Constitution’s clause that “the lands of the state…shall be forever kept as wild forest land.” New York State, said the court in so many words, lacked the authority to essentially amend the constitution by administrative fiat. Only the people can do that. We joined Protect in celebrating the most important high court decision affecting the Forest Preserve in 90 years.

However, others reacted bitterly. Some within the snowmobile community, recreational trail organizations, and local government organizations were among the decision’s critics, asserting that all recreational trail development would be shut down by a decision lacking in prescriptive trail standards. Dueling press releases and editorial opinions were issued throughout May and June.  Like so much of the country, we all retreated to our respective corners. Bad feelings persisted through 2021.

Finally, at year’s end DEC has made the right decision to pull us back together as a community of preserve stakeholders to see what we all could accomplish together as the DEC Trail Stewardship Working Group. Our collective job is to review and help DEC update outdated trail policies in order to comply with the Court of Appeals. Engaging in dialogue about future trail standards and stewardship practices is a productive use of time for citizens of diverse viewpoints who, like their predecessors, are asked to discern what constitutes wise stewardship of public lands that the constitution mandates must be “forever kept as wild forest land.”

At times like this it helps to remember and to celebrate past occasions when the Forest Preserve rallied diverse communities together in common cause of these moments was the winter and spring of 2018. That emergency, never to be wasted, was the Governor’s Division of the Budget decision to stop paying taxes on the Forest Preserve (Adirondack and Catskill) as if these public lands were privately held, but to cap the annual payments and, further, to treat them not as full taxes – as they have been treated since 1886 –  but as payments in lieu of taxes.

These state budgeters failed to anticipate the resulting furor they caused. They had unwittingly united town and county elected officials, school administrators and environmentalists, who rallied around the Real Property Tax Law, of all things. Dating to the origins of the Forest Preserve in the late 19th century, this legal provision was an exceedingly rare exception to the immunity the state otherwise grants itself to taxation. The exception was grounded as early as 1886 in the truth that all New  Yorkers benefit or will eventually benefit from the Forest Preserve, and therefore taxes  on the preserve should be evenly distributed and fairly apportioned to everyone in the state and not unfairly fall upon the land’s host, rural towns and schools with low populations and incomes.

In addition to issuing press releases like the one copied below, this odd coalition of local elected and appointed officials and environmentalists met at the State Capitol in March 2018. We sat down with the Division of Budget’s staff.  At each argument made in opposition to the State’s PILOT and tax cap proposal, everyone else around the table nodded vigorously and stared hard at the Division of Budget staff, who folded their cards early. The proposal, it seemed, died that very hour.

We all met outside the Executive Chamber that afternoon to celebrate. Let’s not forget the feeling we shared, and the great significance of what we accomplished that 2018 day as one, united Forest Preserve community of diverse interests. More important, let’s try to rekindle that feeling from time to time. It just might help us all move forward in 2022.

Below is our press release from 2018 and a group photo (at top), from that release had the following caption: Members of the Forever Taxable Coalition after our meeting with the Division of the Budget at the State Capitol in Albany. From left to right, Peter Bauer, Jeff Senterman, Bill Farber, Kevin Chlad, Neil Woodworth, Dave Gibson, Fred Monroe, Matt Simpson. Photo by Jim McKenna

‘Forever Taxable’ Coalition Opposes State Land Tax Cap for Adirondacks and Catskills Sunday, February 25, 2018

ALBANY, N.Y. – Members of New York State citizen advisory panels for the Adirondack and Catskill parks have joined forces to oppose a plan in Gov. Andrew Cuomo’s Executive Budget that would eliminate the state’s obligation to pay local property taxes on three million acres of public Forest Preserve it owns.

Under the budget plan, the state’s obligation to pay full taxes to towns, counties and school districts on “forever wild” state lands would be replaced by less-reliable payments in lieu of taxes (PILOTs). Local governments would lose their right to assess the value of state property within their borders. Instead, the state would impose a formula to determine how much it pays each year.

The proposed formula would cap annual increases at 2 percent, or the rate of inflation, whichever is less. To oppose the measure, members of the NYS Forest Preserve Advisory Committee and Catskill Park Advisory Committee have created the “Forever Taxable” Coalition. Both groups advise state officials on management of the Forest Preserve. Both passed resolutions opposing the PILOT plan. The new coalition wants the state to keep paying its fair share of property taxes to the towns, counties and school districts that host “forever wild” public Forest Preserve.

Both the Adirondack and Catskill parks contain public and private land. The parks encompass parts of 15 counties, more than 100 towns and dozens of school districts. In both parks, the public Forest Preserve is protected by the state Constitution’s “forever wild” clause, which prohibits logging and development. The Adirondack and Catskill forest preserves protect the purity of most of the state major rivers, while attracting some 16 million annual visitors – a key element of the state’s tourism industry.

State law has required the state government to pay local property taxes on those lands since 1886, so they wouldn’t become a financial burden on rural taxpayers. In the Adirondack Park alone, those tax payments total more than $70 million annually, yet account for only 0.007 percent of the state’s $168- billion spending plan. “A PILOT could be decreased significantly over the course of time by the Governor’s Division of the Budget and State Legislature, negatively impacting Adirondacks and Catskill local budgets and likely resulting in a loss of local services or a tax shift to other landowners in those districts,” read the resolutions approved by both advisory committees.

In some Adirondack and Catskills Park communities, the state owns more than half of all land and state tax payments account for more than half of all town or school district revenue. For example, the Adirondack Park Town of Arietta in Hamilton County is 90% Forest Preserve land. Nearby Long Lake and Wells are 76% Forest Preserve lands.

Members of the Forever Taxable Coalition represent a broad array of Forest Preserve stakeholders, including forest ecologists, foresters, conservation organizations, local government officials and recreational/sporting clubs.

“Our Catskill towns, some of which include very extensive state ownership of Forest Preserve lands, need to be able to rely on the State paying its fair share of taxes,” said Jeff Senterman, Executive Director of the Catskill Center. “These tax payments make a tremendous difference to our communities and represent an ongoing commitment to protect our Catskill Park including its towns and villages. The State paying its fair share of taxes on these lands is a small price to pay for all New Yorkers to enjoy the ‘forever wild’ Forest Preserve lands of the Catskill Park.”

Helen K. Chase, Chairperson of the NYS DEC Forest Preserve Advisory Committee said: “DEC is very much ‘the peoples’ department.’ The Forest Preserve provides benefit to all the people of the state. And in turn the municipalities that contain Forest Preserve provide municipal services to the users of the Forest Preserve. Citizens who wish to preserve their lands want to be able to transfer their lands to the Forest Preserve because they see that the State has been a good owner and taxpayer. This profound benefit to the State and to the peoples of the State will be diminished by this new tax proposal – a loss to all. “Municipalities depend on revenues from Forest Preserve tax payments on a par with other landowners,” Chase continued. “Municipalities must meet their costs each year. The Forest Preserve is an equal partner and has been since 1885 in the payment of property taxes. The new proposal changes the rules. It allows for the Forest Preserve to gradually become disproportionate to the other landowners.”

The Catskill Mountainkeeper also expressed its opposition to replacing Forest Preserve tax payments with PILOTs.

“We, the Adirondack Park Local Government Review Board, call on Governor Cuomo to remove the payments in lieu of tax payments on forest preserve from his budget,” said Review Board chairman Gerald Delaney, who is also a Saranac Town Councilman. “Tax payments by the State to localities are not new. It was recognized in 1885 that the entire State benefited from Forest Preserve, that local taxpayers should not suffer the burden of Forest Preserve alone. It is reasonable that the State land be assessed the same way as all private property in the Adirondacks and Catskills. That is what the law dictates, that is what is fair. This proposal, if adopted, will certainly spur Towns to veto future purchase of Forest Preserve.”

“The Adirondack Association of Towns and Villages stands firmly opposed to any proposed legislation that doesn’t provide for full assessed value tax payments on State lands to the towns, villages, counties and school districts of the Adirondack Park,” said Horicon Town Supervisor Matt Simpson, President of the Adirondack Association of Towns and Villages.

“This PILOT proposal is similar to a property tax freeze proposed by Governor Paterson in 2009, that was ultimately abandoned, but is actually worse because it would no longer be a tax based on well-established Real Property Tax Law,” said Bolton Town Supervisor Ron Conover, Chairman of the Warren County Board of Supervisors. “It would be a capped PILOT that the state could further reduce or eliminate in difficult budget years. Warren County is very dependent on state payments of Forest Preserve taxes on about 196,000 acres, or one-third of the county. If property values rise in the county faster than the cap on the PILOT, part of the tax burden would shift to private homes, businesses and lands.”

“I was disappointed by the proposal to eliminate one of the essential pillars of our Constitutionally-protected Forest Preserve,” said Morehouse Town Supervisor Bill Farber, Chairman of the Hamilton County Board of Supervisors. “While the motivations in setting forth this proposal are understandable, and I always support efficiency, this proposal is untenable. The covenant with the local governments and the School Districts is not something which the State should attempt to unilaterally abolish, and the State of New York should continue to pay taxes on these lands as if they were privately held.”

“Every year, Adirondack and Catskill towns should be able to count on the State paying its full and fair share of taxes on lands we all benefit from as ‘forever wild “ said David Gibson of Adirondack Wild: Friends of the Forest Preserve. “This PILOT proposal from the Governor’s Division of the Budget is sending a message to those towns that they cannot count on them or the State to fulfill its commitments.”

“When the Forest Preserve was created in 1885, the state abrogated its sovereign immunity from paying local taxes and agreed that forever wild lands would be forever after be taxable in the same manner as private landowners,” said Neil F. Woodworth, Executive Director and Counsel of the Adirondack Mountain Club. “For over 130 years, state lands have been valued by local assessors and the resulting state tax payments have been fair and reasonable. The 2018-2019 Cuomo tax cap and Pilot proposal revokes this longstanding tax policy. No longer would the state be treated as a private owner for tax purposes, the state would determine its own taxes. Local government leaders justifiably worry that the state will reduce or cap its tax payments in the future, shifting the tax burden to private citizens.”

“We love recycling, but this bad idea belongs in the trash bin,” said William C. Janeway, Executive Director of the Adirondack Council, the park’s largest environmental organization. “Governors George Pataki and David Paterson proposed similar cost-cutting plans. Both eventually realized that the Forest Preserve is a priceless asset that deserves the state’s financial support. The Forest Preserve protects the purity of most of the state’s major rivers and boosts the economy by luring millions of visitors per year. It deserves the state’s full financial support.”

If the Budget Division’s PILOT proposal is adopted, increases in the assessed value of local government and school districts will not result in an increase in the PILOT because increases will be limited to 2% or the change in level of assessment, whichever is lower. Therefore, says the coalition, over time the tax burden will invariably be shifted to private lands.

Recent state land and easement purchases in both the Adirondack and Catskill Parks, such as the 160,000 acres of former Finch, Pruyn land in the Adirondacks, have increased state ownership of Forest Preserve and land conserved by conservation easement very significantly. Over the years, local governments have been able to support land acquisition and protection proposals in large part because of the certainty created by the tax payments. This support is now seriously jeopardized by the DOB’s capped PILOT proposal.

More Background:  The New York State Forest Preserve in the Adirondacks and Catskills has been taxable for all purposes since 1886 (Real property Tax Law Section 532a) and by law (Real Property Tax Law Sections 542) must be valued as if privately owned.

The Report of the NYS Forest Commission to the Assembly in 1885, when the Forest Preserve was created, recognized that “the State lands in the Adirondacks are to be hereafter held and acquired, not for the especial benefit of the counties in which they lie, but to a much greater degree for the benefit of the whole State.”

The 1885 report also stated: “Ultimately, therefore, there will probably be the position of the State holding a large part of the property in the Adirondack towns, which would normally pay taxes, and this holding would be chiefly for the benefit of the rest of the State. “It is to be observed, also, that when the State becomes the owner of lands upon the plan now considered, the State assumes many of the advantages of a private owner which ought, in common fairness, to carry with them the corresponding burdens. The roads in the Adirondack region will afford access and protection to the State lands. The courts, offices and officials of the Adirondack counties will be constantly used by the State in the protection of its domain and in the assertion and establishment of rights with respect thereto, precisely as they are used by private citizens, it is not unreasonable, therefore, that the State should, up to the extent of taxes upon the lands which it holds in these counties, bear a proportion of the expenses of local administration whose benefits it receives.

“If the State does not pay or bear taxes upon these lands, then the remaining owners in the various Adirondack towns will see their burden steadily increase without any increase to them of the benefits which taxation purchases.” The Commission concluded that the payment of taxes “…. would be a very slight price for the State to pay for the advantage which a sense of fair dealing by the State in the Adirondack region would bring to the plan, which it is now proposed to establish.”

Two-Percent Increases would be Insufficient in Some Cases:  The Albany Times Union published on Feb. 19: According to state figures, the state paid property taxes in Essex County totaling $17.8 million in 2012, $18.9 million in 2013, $20.1 million in 2014, $20.9 million in 2015, and $21.2 million in 2016. That represents a total increase of about 19 percent during the five-year period, which would have exceeded the proposed 2 percent annual cap if it had been in place during that time. With the cap, the total taxes paid by 2016 would have been about $19.2 million — or about $2 million less than the state actually paid.

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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 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.




8 Responses

  1. JB says:

    David, maybe this is non causa pro causa, but I often wonder if some of our problems with overuse–which begins as over-recruitment by towns and the State alike–are so exacerbated here in the Park precisely because of the taxable status of the forest preserve. That tax situation is basically unique in this country, and yet, there are other federal and state lands throughout this country that do not seem to have as much controversy surrounding the regulation of their use–which, besides reducing the aforementioned over-recruitment, is the only other way to realistically address increasing usership. It seems like in the above press release, most of the defendants of the tax are in town government, or closely aligned therewith.

    Don’t get me wrong, rural landowners do not want to pay some sort of Georgist tax to fund the needs of space-restricted hamlets, which need disproportionate monies. And some things that towns do with that tax money benefit the Adirondack Park as a whole–I did not miss the Cuomo administration’s attempt to shirk funding the removal of Hamilton County trash from the Park. But I think that the structure of the subsidies could be much more nuanced, and that this could curtail some of these issues and divisions (societal and environmental) that we are facing. I imagine a framework where towns would receive targeted or conditional funding (to their shagrin), but in exchange for some stipulation on control over APA-conforming policies towards state lands within their borders–can a bit of self-determination really be worse than state-sponsored crony capitalism? It is amazing to me that Adirondack towns are unwilling to discuss such things when NYC flirted the idea of municipal disinvestment (“planned shrinkage”) in the 1970s–especially considering how libertarian-leaning most of the smaller townships are.

    • John says:

      You’ve got to be kidding!

      • JB says:

        John, it would be nice if you elaborated. Would I be wrong in assuming a simple case of the usual: “Ha ha, let’s make fun of those silly libertarians who think that taxes are bad.”? The right-libertarian perspective is that It would be nice to hear a breakdown of exactly where taxes go and potential areas of improvement every once in a while. Plantations and unconsolidated areas in Maine, the closest demographic parallel in the Northeast to most Park towns, have had success in preserving forest and keeping overhead very low despite low tax revenue and extremely sparse populations (largely by outsourcing building permitting to the state LUPC). That is, exorbitant Georgist land value taxes did not materialize. If such a situation were ever to arise in the Adirondacks, I agree that it would be a huge problem, not for the economy, but for the environment, which would suffer as an overwhelming majority of owners of large tracts of undeveloped land parcelize and improve (develop) their properties in order to cope with the land value tax–supercharging the economy as per Georgist predictions. (I would think that most hardcore capitalists would like that.) No matter what policies the state enacts–whether it be the Cuomo proposal or the forever tax–not having clearly delineated goals and plans for achieving them (the “Cuomo compromise”) seems like a terribly inefficient and dangerous concept. If the FP taxes are eliminated, prioritize wilderness character and existing communities by preventing runaway local tax regimes; if the FP taxes are kept, prioritize the same by preventing over-recruitment and gentrification. (I.e., property taxes are the bad guy.) Don’t just sit on your hands.

  2. Lee Nellis says:

    I think most of us who have thought about it believe that the outcome of a Georgist tax policy would be to suppress speculation and luxury resort development. George pointed out (he was watching real estate values in Gold Rush San Francisco) that developers don’t create value by selling lots. They capture value created by others, by a growing population. This is no longer quite as true as it was in George’s day thanks to land-use regulations that require developers to provide infrastructure, but land here and in other attractive landscapes still has a substantial speculative value after the costs of regulation are accounted for. George proposed to penalize speculators who hold land cheaply while its value rises due to a growing population. He thought the Land Value Tax (LVT) would result, among other things, in affordable housing for working people. It could contribute to that need by discouraging the speculation in land values that we inarguably see. It might not in our time and place, because you wouldn’t beat an LVT on large tracts by developing. That’s risky. You’d place the land under easement. No risk this way, lower up-front cost to the owner. No speculative value, no LVT. Likewise, if regulations decisively reduce speculative value, that land is (or at least should be) taxed at its value in use, resulting in no undue pressure to develop. Contemporary Georgists hope that an LVT applied within areas where it is agreed that building is desirable would result in lower land prices improving the ability to build affordably. To the extent an LVT reduces taxes on improvements (George advocated for a 100% reduction, but that’s not inevitable) it would also make the annual cost of owning a home or operating a small business a bit lower. I don’t think anyone believes that an LVT would be the panacea Henry George thought it would, but a properly designed Georgist tax regime would do much more to prevent gentrification than the present tax system, which does not appear to suppress it all.

    • JB says:

      Thanks, Lee for that analysis of a contemporary Georgist tax. I agree that present tax regimes are setting the Adirondacks up for runaway gentrification. And my brief argument against Georgism intentionally did not account for the major externality of APA land-use planning. I agree that an LVT would encourage easements (perhaps an unpopular and even ill-advised concession among landowners in the over-recreated Adirondacks)–it makes sense that we see these extreme anti-Georgist tax regimes in logging-dependent parts of the country.

      But we will never have a pure Georgist LVT (as you have said); these days we talk more about the spectrum of different ways of appraising value–overassesing land vs. overassesing improvements and the economic effects over large time spans of those regimes. I am of the opinion that improvements are chronically undervalued in most Rural Use Areas (yet land is comparatively appreciating quite rapidly). Losing a lot of nuance in translation, you might call that “quasi-Georgist” for the sake of argument. You could even venture out on a limb and say that the State is paying a type of LVT on forest preserve (at least relative to the tax regimes for the vast global majority other public lands, which are not taxed at all).

      From an economic revitalization standpoint, the arguments for an LVT are compelling–Georgist economics is incredibly erudite–but from the standpoint of rural preservation, classical Georgists still need to reconcile LVT and the inherent negative externalities of exurban development using some sort of Pigovian impetus. It seems to me that, in an Adirondacks as balkanized as it is, that is unnecessarily complicated and difficult. If our goal in Adirondack Park land-use planning is to limit development outside of hamlets (and all indications are that it should be), then I believe that those LUP efforts would be better served by levying anti-Georgist Pigovian taxes upon land improvement and by subsidizing private forest owners in the short term, which would, among other things, discourage parcelization (contrary to the Georgist redistribution of economic rents away from landowners). That would likely be more successful in staving off speculation and gentrification whilst having the important consequence of dampening economic activity. As economic activity slowed, many local governments would be driven to scale back, killing two birds with one stone: the runaway feedback loop of over-recruitment (artificial recruitment efforts to grow tax base and organic recruitment through amenitization ad infinitum) and the mess of overdetermined contradictions between wilderness preservation and local economic growth.

      Unfortunately, it seems that America is still not ready for the nuances of land-use planning. Whether communities would survive the aforementioned regime depends on the types of communities that one deems desireable. One thing is certain: rurality is neither a monolithic nor a steady-state phenomenon, and Article XIV and APA represent an overt imperative to create an explicit type of rurality that is increasingly valuable and under threat. I think that the private Adirondack Park would be served well by an “anti-Georgist” regime–most of its land area is private forest, not hamlet (nor should it be). Georgist regimes do, on the other hand, make much more sense on the more granular level of cities and hamlets, where compelling case-studies are not hard to find. That has always been a hard pill for Americans to swallow. However, it seems to me that the American failures in LUP go beyond an unwillingness or incapability to engender varying land uses and tax regimes. The heart of the problem, it seems, is that there is a larger Lockean bent towards overcapitalizing land. Even American distributive justice still refuses to place anything other than capital at the center of its utilitarianism. That may change: resource scarcity and climate change are starting to factor into economics in a hyperbolic way, and I think that there are already hints that this is changing the tides of politics and popular opinion. If not, then we will be forced to reassess these ideologies, nationwide and here in the Adirondacks, as scarcity continues to widen the gap between rich and poor regardless of our best efforts.

  3. Lee Nellis says:

    Wow, thanks for this response to my response. Factually first, I agree about appraisal practices. Both land and improvements are intentionally undervalued in most – maybe all – states, and the relationship between taxable and actual value is obscured, all to make property taxpayers a little less unhappy. As I understand it, the State payments lack the connection to speculative value that would make them a real LVT, but they do shift the tax base in a Georgist direction.

    I think the Georgist response to the externalities of exurban development is simple: more and better land-use planning that creates a framework within which the tax system operates. Which leads me to your point about our unwillingness to do good planning. I agree. My sense is that the overcapitalization of land is a symptom, not a cause, but we end up in much the same place.

    • JB says:

      And thanks to you as well, Lee. You really made me pause and think about that one. At the risk of becoming a proponent of yet another grand economic philosophy, I will add that sometimes I think that ideologies as elegant as Georgism can become blinded by their own brilliance (e.g., amidst the dull machinations of larger sociopolitical reality). Even if we had a pure Georgist state per impossible, I think that an unbalanced overextension of economic rent and redistribution of too much capital away from good faith landowners could pose an insurmountable obstacle towards any effective land-use planning regime. Maybe it’s the libertarianism talking, but an important positive externality–which is mostly ignored in light of the American predilection towards believing in the “rational economic actor” of Adam Smith and John Locke–is that owning land purely for personal pleasure is and has been a major motivation for private forest owners for ages. And finally–taking that a step further and full circle–I think that if we look closely enough at the bigger picture, the goals of land-use planning and the interests of the “actual economic actor” are one and the same. …We do end up in the same place eventually, no matter which direction that we choose. Sometimes it just takes far too long for us to get there.

  4. Lee Nellis says:

    A good conversation can still be had. Thank you again. Unfortunately, I think we are irrelevant in a time when personality, not ideas, dominates. To me, the Georgist perspective is a stepping stone from where we are toward where we need to be. Which leads me to comment on your point about the pleasure of owning land. Isn’t that, in the end, a spiritual experience? For me, its the joy of not owning land, but still having the vast public lands on which to roam free. But I get it, I have seen it in operation with certain (a few) landowners. In the end, we are going back to the economy of reciprocity and intrinsic values, the “gift” economy. If we could listen to indigenous voices there might be time to do that in a somewhat dignified manner, with some choices. I suspect though that it will be as Robinson Jeffers predicted in his poem Hellenistics: the machines break down, the wilderness returns.

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