Property Rights Foundation of America®
Founded 1994

by Carol W. LaGrasse, The Property Owner's Experience (PRFA, April 1998)

New York's Arbitrary and Excessive Environmental
Regulation of Private Land and Resources

Observations and Recommendations for Reform


Summary
In the fourth year of Governor George E. Pataki's administration, State land-use control agencies have not instituted reforms hoped for by those who elected him on the basis of their desire for less, more responsive government which would be friendlier to property owners and businesses and appreciative of their essential contributions to the flourishing of the State, while respectful of the constitutionally protected civil rights of private property owners.

New York's regulation of land-use is still arbitrary and excessive, and, as a result, contributes to non-productivity, decline of the family and rural communities, exodus of citizens from New York, and malaise of the human spirit as a result of resentment of government and loss of human rights.

Regulatory Bias, Excess and Irrationality
The following problems are endemic to State agencies which regulate use of land and land-based resources:

1. Bias - Permit review is rife with favoritism, conflict of interest and prejudice.

2. Open-ended review - The Department of Environmental Conservation (DEC) and the Adirondack Park Agency (APA) subject applicants to endless information requests, additional review requirements and revisions.

3. Costly studies by permittee for DEC and APA - Agencies burden permit applicants with permit review expenses related to public, rather than private, interests. DEC and the APA impose enormous expenditures by private landowners to survey biological, historical and cultural resources and esthetic effects of interest to state agencies but of no practical interest to the property owner.

4. Fees paid by permittee for DEC experts - DEC requires experts as consultants to be witnesses against the applicant, but fees are paid by the applicant.

5. Extra-legal powers - Assumption of power by the APA beyond statutory authorization is commonplace.

6. Deliberate uncertainty - State agencies assume "discretionary" powers.

7. Conflict of interest in land regulation - Conflict of interest results from the same agency being involved in land acquisition and permitting, in the case of DEC and the APA. The involvement of enforcement agencies such as DEC in land management tends toward overarching government.

8. Takings - State agencies use regulations to restrict the use of private land so that the State effectively takes value from wetlands, habitats and other properties without compensation

9. Indeterminate wetlands - "Wetlands" which are not mapped completely and areas outside mapped areas are subjected to enforcement.

10. Harsh ivory-tower standards - Theoretical pollution control considerations with no practical basis in experience hamper and close down small businesses such as crude oil production.

11. Strong-arm tactics - Land agencies use closed door and secretive meetings both to strong-arm applicants and to conceal interest group involvement in their projects from applicants.

12. Enforcement-based budgets - Certain State agencies augment their treasuries through fines, creating a biased incentive for enforcement. Forfeiture procedures such as are used for drug enforcement loom as a future possibility for land-use crimes.

13. Regulations tied to "benefits" - The APA's involvement in various quasi-economic development efforts is used as a subterfuge for developing more regulatory power. Involvement of State enforcement agencies such as DEC in land management tends toward overarching government.

14. Wrongful land trust involvement in government - Land trusts operate as tax-exempt arms of State government, exempt from public scrutiny, and receive many government benefits while secretly acquiring vast tracts of land for government, and engaging in heavy-handed or unethical tactics.

15. Unknowable land acquisition goals - The boundaries of the full gamut of properties, not only priority parcels, referred to in the Open Space Conservation Plan for potential acquisition are unknowable and to a large extent effectively concealed from the public and private property owners, as are secret working land acquisition maps.

16. Deceptive Open Space Plan - The DEC's Open Space Conservation Plan is a banquet list of potential additions to the State's land holdings, deceptive in its broadness, prepared without broad-based input of communities or affected property owners, and with neither economic impact analysis nor compliance with SEQRA.

17. Overlapping jurisdictions and Failure to Defend Civil Rights - Property owners making decisions about their land, or facing permits or enforcement, meet redundant requirements from local, state and federal governments, and can be effectively double-teamed by agencies with overlapping jurisdictions. On the other hand, where civil rights protections exist, the State fails to protect private property owners and those seeking to use government land.

18. Science superseded by politics - Interest groups have been able to sway the Administration so that science is disregarded and important decisions are made which present extreme danger of fire, are expensive and impractical to the public and private property owners, and wasteful of essential resources.

19. Irresponsible officials - Certain high DEC and APA officials have been biased, ill-informed, unprepared and unable to serve the just interests of private property owners in accordance with their sworn allegiance to uphold the Constitution or to oversee their agency or department in a qualified way.

20. Regulators scheming for more power - The APA and DEC participate in a number of pre-regulatory programs that would greatly increase their powers.

Directions for Reform
Reforms are needed in New York's regulation of land-use to accomplish reasonable objectives which would as a whole bring a sea-change in the State's regulatory treatment of the private property owner and its other administrative policy related to the future of private land. All of these reforms are neutral with respect to issues of air, water and land pollution. With respect to New York's trend toward increased government land ownership, the recommendations could result in less future government land acquisition by subjecting the process to public scrutiny and financial discipline.

Conceptual Recommendations
The Administration should implement regulatory and administrative reforms to accomplish these reasonable objectives:

1. Establish unbiased permitting processes.

2. Establish trigger periods after which agency permits are automatically granted or denied.

3. The State government bear the cost of all biological, historical and cultural surveys required of property owners by State agencies.

4. Use State funding for all State agency permit review expenses.

5. Limit agencies to statutory authorizations of power.

6. Eliminate "discretionary" assumption of power by agencies.

7. Separate permitting and land-acquisition powers.

8. Compensate property owners for any State government "taking" through restriction on the use of "wetlands," river and waterway setbacks (except for valid erosion and pollution protections), wildlife habitat, or historic or cultural resources should be established as routine, either by mutually agreed lease or covenant, or by eminent domain as an easement or fee simple acquisition. A State compensation office, a step short of the court system, should be established where property owners could submit claims for compensation in exchange for interests conveyed by permits, enforcements and deed restrictions.

9. Cease enforcement by State agencies of "wetlands" use restrictions for any wetland that is not already officially delineated on maps filed in local county clerk's offices.

10. Eliminate cost-ineffective requirements which serve no practical function of pollution control.

11. Open up government enforcement to scrutiny by the public and those regulated.

12. Separate agency funding level from enforcement effectiveness.

13. Separate "economic development" and other financial enhancements from the regulatory process and regulatory development.

14. Eliminate the use of non-government entities such as land trusts in financial transactions and government functions for land acquisition and other purposes, at least until all procedures are opened to the public scrutiny and guidelines are established by the Legislature, supervision of these non-governmental entities is established by the Comptroller's office, and the Legislature removes the tax-exempt status of lands held for a "flip" to government; or the establishment of a separate land-acquisition arm in the Administration to take over the functions of such third parties.

15. Subject every aspect of all land acquisition activities for preservation to open government and open meetings law.

16. The DEC's Open Space Conservation Plan should be reviewed by a panel of experts and affected parties including those who have voluntarily submitted comments and the final plan be reflective of suggested reforms, including that the full extent and cost of the entire grand assortment of proposed acquisitions be analyzed and properties not be listed without written landowner consent.

17. Establish competent liaison and legally defined, mutually exclusive jurisdictional turfs with respect to federal and local agencies to eliminate lengthy hurdles and "double-teaming." The State should assert its legal arm and educational capacity to protect private property owners where federal, state and local agencies assume unwarranted powers in conflict with State and federal protections of civil rights.

18. Employ accredited scientific professionals in traditional disciplines to evaluate and advise the Administration on policy matters so that science, rather than emotionalism, should influence public policy.

19. Improve the oversight of all state agencies pertaining to land-use by appointing unbiased, knowledgeable, capable individuals, respectful of constitutional rights, at the highest levels.

20. Separate the development of more advanced enforcement policy from enforcement agencies.

Recommended Oversight Agencies
1. New Task Force in each Agency

It is recommended that the Governor's Office of Regulatory Reform be involved as one of three members, a civilian appointee as the second, and an agency official as the third member of a task force for each agency to implement and report on the effectiveness of the proposed reforms.
In addition, to help get the intractable problems of private property owners in New York State off to a better footing, two new administrative changes would be helpful:

2. DEC Civilian Review Board
It is recommended that a bi-partisan, geographically diverse, civilian review board (fully State-funded) which includes representation of all sectors including balanced representation by private property owners, business, including forestry and resource extraction, and local government be appointed to monitor the operation of the DEC, to hold public hearings on regulatory problems and abuses, to produce an annual report to the Legislature, and to recommend disciplinary action and policy changes to the Administration.

3. Civil Rights Protections
In recognition of the absolute essential that private property rights be respected in order to maintain and restore freedom and enhance prosperity in this state, action should be taken immediately toward the establishment of an Office for Defense of the Civil Rights of Private Property Owners in the civil rights division of the Attorney General's office and a Private Property Rights Ombudsman in the Executive office.

These offices would have ongoing functions of receiving, investigating and, where appropriate, taking legal action or recommending administrative action or complaints.

A representative of the new DEC task force and the Attorney General's new Private Property Rights office would participate as ex-officio members of the DEC Civilian Review Board when it conducts hearings.

4. APA Local Government Review Board
The Adirondack Park Agency Local Government Review Board (which is established by statute), should be fully funded, and funding should be adequate to also prepare an annual report to the Adirondack towns and the Legislature, and to provide an ombudsman to assist APA applicants and subjects of enforcement.

All of the reforms discussed in this report are largely able to be accomplished with improved administrative policy. The reform recommendations are driven by the abuses which property owners have experienced and reported.(1) Many of the reforms require regulatory changes which should be implemented through statutorily required administrative procedure. With Administration support, additional reasonable reforms which are referred to, which would further enhance the climate of freedom without sacrificing standards of air, water and land protection, would be worthy of pursuing in the Legislature.

(1) Examples cited by way of explanation for each of the generic statements of background problems behind the recommendations are, by necessity, only samples. There are three reasons for the limited number of examples: practical restrictions - cost, timeframe, and inaccessibility of data; unwillingness of vulnerable injured parties to testify; and the need, in any case, for a thorough, unbiased review of agency records such as I attempted to do, as discussed under Recommendation No. 5, with only current permits for 1990-1992 for the Adirondack Park Agency. Conceptual

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