Property Rights Foundation of America®
Founded 1994

by Carol W. LaGrasse, New York Property Rights Clearinghouse, Vol. 3, No. 3 (PRFA, Aug. 1996)

City Watershed Agreement Poses Problems

Home-rule to Suffer, Much Land to be Bought Up

Existing industry near watercourses will be micro-scrutinized
The September 10 draft of New York City's proposed watershed agreement and regulations spells out in 2 inches thick of fine printed pages how the City will spend $1.2 billion to upgrade sewage treatment plants and triple its land holdings in the watershed over the next ten years and control the private property, business, government and tax base in the area.

Local governments must ratify all by November 10 or they will receive the brunt of the rules but less money.

The heart of the document is expressed in two features, one prominent, one obscure. Prominently are tables of benefits — sewage treatment plants and water quality protection to be paid for with money pouring in through the Environmental Facilities Corporation, City and State, economic development funds for tourism and other environmentally sensitive industry, and money to buy up land.

But an obscure clause conveys the other side of the coin:

"The Parties recognize that any land acquisition program to protect water quality should provide reasonable opportunities for growth in and around existing population centers and that local communities have an interest in policies that affect local land use."

The restrictiveness of the future growth pattern and the narrowing of home-rule rights to mere interests are the framework for many clauses of the proposed agreement which are far less favorable to local government, local business, private property owners and the tax base than the way that the report has been portrayed in the press.

City and State would pay big money toward pollution control and land purchases, Watershed areas give up land, self-government, business and tax base.
The impression exists that the grandiose plan for the City to acquire 355,000 acres in the Catskills is intended to bring City land acquisition there to a close, but the acquisition goal is a mere ten-year plan. Funds are committed by the City and State irrespective of the outcome of the November bond referendum. The plan would triple the City's holdings to ten percent of the watershed land, or to an amount equal to the State's Catskill forest preserve holdings, but with the new acquisitions situated on more developable, generally lower elevations.

Much has also been made that the land would be acquired at fair market value from "willing sellers" without eminent domain. But the City's appraisers, according to the agreement, are deemed the determinants of fair market value, and land can be acquired, the agreement states, from tax and mortgage foreclosures, auctions and legal judgements at below market. The restriction on eminent domain applies solely to the permit just negotiated and the 355,000 acres in the 10-year acquisition plan, not to any future permit for further acquisition.

The agreement's section on the local collection of real estate taxes on land the City may own reads quite differently than the widely held belief that locally calculated assessments would control. Local assessments of City land are, on the contrary, to not exceed fair market value as determined by the City's appraisals.

In addition, the City expressly reserves the right to challenge any town- or county-wide revaluations. The City also reserves the right to transfer its lands to tax-exempt non-profits, who have to agree to pay PILOTS, and the local assessing unit is not allowed to be unreasonable about agreeing to the level of payments in lieu of taxes.

Proposed Watershed rules administration of rules by City
The requirements that must be met by a local county, town or village to take over the administration of the City's watershed rules so that each property owner doesn't have to face the City DEP bureaucracy are elaborate enough so that the City would have complete discretion about whether to turn over administration of the rules to a locality. The City may also decertify the locality.

In fact, in a key clause, the City reserves the right to revise its rules and states that it definitely intends to revise them in ten years. The rules state overtly that the burden of proof is on the person performing the activity.

Broad Watershed regulatory powers, retroactive control of business proposed
The City's proposed regulations have enormous power to control land use. The phrase "regulated activities" brings in any impervious surface, for example, as well as noncomplying existing regulated activities when the City deems that they could harm the water supply.

Existing commercial and industrial activity would be subjected to compulsory regulations, public disclosure, costly environmental self-audits and compliance plans if it did not conform to the new regulations. A roof or parking area or other impervious surface within 100 ft. of any minor watercourse or 300 ft. of a reservoir or major watercourse would trigger elaborate requirements. The non-complying activities would be published, making the businesses sitting ducks for citizen enforcement lawsuits, bounty hunters or other environmentalist harassment.

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