Property Rights Foundation of America®
Founded 1994

"Recommendations for Reform of the
DEC Open Space Conservation Plan,"

Chapter 16, The Property Owner's Experience - by Carol W. LaGrasse (PRFA, 1998)

The DEC Open Space Conservation Plan Should be Thoroughly Reformed
The DEC Open Space Conservation Plan should be reviewed by a panel of experts and affected parties, including those all who have voluntarily submitted substantial comments. The new final plan should be reflective of suggested reforms such as the requests that the full cost of the entire extant proposed acquisitions be analyzed and properties not be listed without written landowner consent.

The DEC Open Space Conservation Plan should include the maps which are the final working documents for State land acquisition and not be supplemented by parallel secret documents (discussed in Recommendation No. 14). The banquet lists of proposed acquisitions by DEC and the Regional Committees should be pared down and placed into a financially feasible, definite sequence, subject to the approval or veto of local townships. The land acquisition domains 5, 10, 20, 50, and 100 years hence should be mapped to the scale of tax maps, subject to revision in the future to include more land only by a full public hearing process in each county as under SAPA for regulatory revision.

To comply with SEQRA and to institute sound economic policy, the Administration should prepare a financial analysis of the cost to the State to acquire (or preserve by whatever method contemplated) all lands (not just "priority" parcels) contemplated in the Open Space Conservation Plan, including acquisition, capital improvements, upkeep, tax payments, as well as local impact economic analysis of the specifics of 5, 10, 20, 50 and 100-year acquisition domains for each county. Current acquisitions should be mapped to the scale of tax maps. Current acreage analysis and direct tax impacts by counties and townships should be made available immediately. Until this information is published, the final Open Space Conservation Plan and further State land acquisitions should be in abeyance.

Only by completely opening up the land acquisition process and subjecting it to financial disciplines can the behind-the-scenes influences and the surreptitious long-term goals which subject permit applicants to unknowable pressures be eliminated.

Background Problem
The Open Space Conservation Plan and the State's land acquisition policies are thoroughly intertwined with its regulatory policies. This was first illustrated to me when the plan for the Adirondacks in the Twenty-first Century with its 2/3 million acres of land acquisition and accompanying Environmental Quality Bond Act came out in 1990 to regulate private land, pay for the State acquisition of private Adirondack land and organize the land acquisition. Among other examples, it continued to be displayed in the behavior of State land regulatory agencies to perpetuate State land acquisition.

The DEC's Open Space Conservation Plan is a banquet list of potential additions to the State's land holdings, deceptive in its broadness. It is prepared without effective input from local communities or affected property owners, without economic impact analysis or compliance with SEQRA.

The boundaries of the full gamut of properties referred to in the Open Space Conservation Plan for potential acquisition, including all parcels, not only priority parcels, are unknowable to the public or affected property owners.

Property owners are unable to know what pressure they will face when applying for permits from state agencies. One source of pressure is that State agencies are making judgements not on the basis of statute but holding up permits under consideration that land should be preserved for future government acquisition.

Opportunistic acquisition(1) by the State from an applicant that happens to come before an agency like the APA come out of the blue because the agency has the power to make land acquisition decisions unilaterally. This opportunism gives the agency unfair leverage in extracting permit concessions from the applicant.

Because the acquisition plan is not subject to financial analysis, definitiveness or public scrutiny, it is altered at will by regulators to accomplish goals of the minute, dependent on the vulnerability of applicants.

Communities have no way at present of knowing the future of the amount and location of government land within their borders. This is of hindrance to planning by property owners and others, and leaves people insecure.

Examples
One example will suffice to demonstrate the effectiveness of an overly long, banquet list of proposed acquisitions in concealing any real information. The Region 3 acquisition list includes no less than 158 areas for preservation, some as large as a mountain or as long as a substantial trail. Each of these generally contain many separate parcels. The scope of the list obviates any purpose of defining lands for acquisition. In addition, a shorter list of priority areas is included but their scope and schedule of acquisition are undefined. In fact, with some Region 3 priority areas currently listed for acquisition, the reference is to "including but not limited to," which makes even the priorities specifically indeterminate.

Comments by Others
During the 1997 Draft Open Space Conservation Plan review period, certain formal comments were submitted by others which deserve referencing here.(2)

1. Roland R. Vosburgh, Director, Columbia County Planning Department
Letter of December 15, 1997 to Frank Dunstan, DEC

This definitive commentary is the first attempt to raise the spectrum of public policy issues that the Open Space Conservation Plan impinges on. It should be studied by every member of the Legislature and all those in both State and local policy-making positions in New York State land preservation issues.

"Public policy should not be controlled by interest groups. I have been involved in this process since the beginning and my experience at the regional advisory committee, the public hearings, and the review of written comments on previous plans is that the input is primarily on getting new sites on the state acquisition list. Thus, out of the limited number of complete reports distributed in the state, I expect that only a very few people actually read the entire document and that the focus of most people is the priority list.
"In the spirit of opening up and widening the debate on the commitments established by the State of New York in the Plan, I have summarized... some of the issues which I believe have not been adequately addressed." (p.1)

Mr. Vosburgh's discussion encompasses philosophical issues including need, stewardship versus acquisition, and over-emphasis on land acquisition; fiscal issues such as true cost and payments in lieu of taxes; and procedural issues, including plan preparation and implementation, dealing with property owners, dealing with local governments, and dealing with third parties in acquisitions.

The final point of this commentary pertains to the land trusts.

"The legislature should support a comprehensive study of the role of third parties in state land acquisition to be undertaken by a neutral entity with the purpose of reporting both advantages and abuses and recommendations for removing the secrecy surrounding the current procedures." (p.6)

2. New York Blue Line Council
Comments by Pieter V. C. Litchfield, President, December 9, 1997
The Council's key points are:

"New York State should document for each property included in the Priority List the economical and social impacts, both positive and negative, of such acquisition;
"New York State should refrain in all cases from the taking of private property by eminent domain; and
"No property should be included in the Open Space 'Priority List' without prior consent of the landowner."

3. Finch, Pruyn & Company, Inc.
Comments by Roger A. Dziengeleski, Woodlands Manager, December 22, 1997

Finch, Pruyn & Co. is the second-largest landowner in New York State, with 164,000 acres of forestland, primarily in the Adirondack Park. The firm has owned the vast majority of its land for over 100 years.

Although Finch, Pruyn has donated or sold over 80,000 acres to the Forest Preserve, the company believes that, because the state ownership has grown to approximately 3 million acres, "great scrutiny" must be given to additional purchases of private lands.

Because the fulfillment of Finch, Pruyn's recommendations would substantially contribute to the re-focusing of state policy toward fairer regulation and greater practical respect for the rights of private property owners, selected portions of all their summary points are quoted below:

a. "New York should inform the public of the total costs associated with each new purchase of private land, and the payment prices and annual cost of maintaining its existing landholdings."
In private ownership, timber land already provides all the values the public cherishes. When the State buys up private land and ceases timber harvesting, a supply of wood for paper, homes and other products disappears. Supplies must come from other states. Jobs and local economies suffer. In addition, the State pays above-market prices and drives private owners away.
The costs which the State should make public when proposing land purchases include:
"the annual costs associated with its current landholdings, including, but not limited to, taxes, operations, road maintenance and search and rescue operations; and
"the purchase price and projected annual maintenance costs for the property to be acquired."

b. "New York should refrain from participation in third-party acquisition scenarios, which, ultimately, result in the same negative social and economic ramifications as direct purchases."
Numerous transactions with the intention of eventually selling to the State have been typically at above-market values. The transactions "circumvent legislative restrictions on the use of taxpayer dollars for land acquisition."

c. "New York has not provided compelling evidence that the projects identified in the draft Plan are deserving of their 'priority' designation."

d. "The State's Open Space regional advisory committees should include a representative from a wood-using facility to help in ensuring that the complex and highly important issues related to wood supply are adequately addressed."

e. "New York should categorically reject the use of eminent domain."

f. "Landowner consent should be required prior to the listing of any property on the Open Space Priority List."

g. "New York State should encourage greater private landowner investment in the state."
This recommendation points out that state mandates foisted on localities cause the fourth highest per capita property taxes in the nation, a great burden to private landowners.

To order the complete booklet, The Property Owner's Experience (56pp. 8½ x 11"), © 1998 Property Rights Foundation of America ®, please see Publications Order Form.

(1) The chart on page 20 of the November 1997 Draft Open Space Conservation Plan illustrates the generally opportunistic nature of DEC's land acquisition. Item 1 on the chart, whether the project is within a resource system or a project important to the State, is so broad that all of the banquet list of lands in the various parts of the Open Space Conservation Plan apply. Therefore it is meaningless and acquisition is opportunistic. (All of the other criteria listed are easily able to be manipulated to yield any sought-after decision.)
(2) Copies of full comments available upon request from PRFA.

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