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Protecting wetlands and landowners' rights

"Commentary," Times Union, Albany, N.Y., September 22, 1999

Too bad Fred LeBrun allowed his devotion to environmental protection to stand in the way of his incisive ability in his Aug. 29 column to analyze an issue, in this case the justification of property owners' concerns with the state Department of Environmental Conservation's remapping of wetlands in Saratoga County.

Property owners have consistently raised three major issues, none of which are being seriously addressed by DEC.

First, the remapping is overzealous and inaccurate. DEC's assurance that biologists will personally delineate each wetland in response to more than 550 formal complaints does not allay the fears of property owners. There is little faith in an agency that allowed the maps to go public with many egregious errors (such as houses and dry woodlots noted as wetlands) that anybody could see with a windshield appraisal.

In addition, many property owners are aware of DEC's expansive methods of remapping to arrive artificially at the state's statutory minimum of 12.4-acre wetlands. The additive methods that were used cannot be explained within New York law.

Therefore, property owners are uniting around a call to withdraw the overzealous wetlands maps.

Second, the re-mapping greatly expands the DEC's jurisdiction, by doubling the area in the county designated as wetlands, according to Patricia Riexinger, the DEC wetlands program director.

Many ordinary uses of land designated as wetlands require permits, which can be very expensive to obtain. Designation also prohibits many contemplated activities such as most residential construction, thus foreclosing lifelong investments. Some property owners have discovered that their land is entirely "wetlands."

Beyond the remapped wetlands are 100-foot buffer areas, where many activities such as construction, also, require a permit. Since activities are greatly restricted in wetlands, in important cases where property owners have expended the money to go the court, full compensation has been awarded, as well as compensation for the so-called "partial taking" for the fraction of land designated wetlands. But, by and large, few property owners have the means to litigate.

Thus, landowners seek just compensation from DEC for the restrictions imposed on their property.

Assemblyman Robert G. Prentiss is calling for DEC to implement a provision of the freshwater wetlands law calling for voluntary compacts, which the agency has totally ignored. He is submitting legislation providing for wetlands conservation easements. DEC purchases multi million dollars conservation easements to protect forest tracts. For many years, long after the freshwater wetlands law was in effect, DEC did purchase wetlands, thus providing just compensation to property owners.

Many property owners are also angry because they still have to pay taxes on their property even though they cannot use it for the intended purposes.

Ironically, the freshwater wetlands law actually provides since 1975 that the taxes on designated wetlands should be reduced as "in the manner of an easement." DEC's sole response to this provision was a little green flyer issued during the Cuomo administration, which provides cursory observations and some outdated case law.

Local assessors are on their own, with the burden of becoming biologists, soil experts, botanists, experts on wetlands law, as well as appraisers, if they take the initiative to consider reducing assessments. Thus, the treatment of owners of wetlands varies from municipality to municipality.

Assemblyman Prentiss has a logical proposal for reform of the tax treatment of wetlands. Similar to the forestry tax exemption program, where DEC and the State's real estate tax agency jointly administer the tax exemption procedure, the Prentiss proposal would require DEC certification as to the wetlands aspects, and the Office of Real Property Tax Services' design of the exemption system. That includes issuance of the application form to be processed by the local assessor.

The complaints of landowners and the proposals for reform do not display any disrespect for wetlands. Rather, the goal is that, in the course of providing the public good of wetlands protection, the constitutional rights of landowners should be respected.

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