I. GENERAL COMMENTSShortcomings of the Process of Regulatory Revision
The Adirondack Park Agency (APA) and APA regulations have a profound impact on the social and cultural life and on the economics of Adirondack people and property owners, communities, and municipalities. Over one hundred towns and villages in the Adirondack region are regulated by the APA.
Regulatory revisions could have a major environmental impact on the Adirondacks. The New York State Environmental Quality Review Act (SEQRA) requires the study of social, cultural and economic impact. SEQRA prohibits segmenting of a project. The APA's process of regulatory amendments is a "project." Government agencies, including the APA, cannot legally segment the environmental impact analysis of a project; or dismiss the environmental impact of any part of a project, make an overall declaration of no-impact or insignificant impact of an entire project, or in any way weigh the environmental impact of a project, in segments.
The present APA regulatory review process began with Phase I of three phases in 1997. Now, three years later, we are considering the final version of the regulatory amendments under Part I of Phase I. The APA has illegally segmented the regulatory revision process and is in violation of SEQRA.
The following general comments also deal with SEQRA, as do certain of the comments on specific amendments.
Knowledgeable Input by the Public is Prevented.
An important reason why segmenting is broadly prohibited is that the public cannot knowledgeably comment on the proposal if it is presented in pieces. For instance, in the APA regulatory revisions, knowledgeable input is virtually impossible because interrelated regulations and definitions which affect the current phase of regulatory revision are to follow in the future, and are not concurrently available.
In spite of all of the meetings and preliminary exchanges of information, the public is actually cut out of the process in the practical sense, because it is commenting blindfolded. The agency, hidden by the blindfold, knows more than the public.
Excessive Duration of the Regulatory Revision Process
Originally planned for three phases over two years, the regulatory revision process would have been too long under those terms. Next, the APA declared that the revision process would be "open-ended." In 1997. I commented negatively on both these plans for time duration.
I commented that, "At the final meeting in Colonie, a citizen asked, 'Have you considered that the public gets tired of all these hearings?' The APA presiding officer brushed aside this important comment, and responded that the Agency has been criticized for many years for doing things in private."
Now we are four years into the process and still in Phase I! The long duration caused by the illegal segmenting of this project plus the lackadaisical time frame of the Agency means that people may forget what they knew, their interest may wear out, their health may fail, they may die, and their jobs and circumstances may change, making continuity in their comments difficult and less likely. Substantive comments have been ignored without any explanation.
This negative effect on the public from this segmenting and drawing out of the process is far greater than the effect on the Agency, which has paid professional staff. Similarly, environmental interest groups like the Adirondack Council are favored, because they also have enormous budgets allowing for paid professional staff. The public, largely volunteer and stretched thin, is cut out of the process by the wearing effect of segmenting and time duration.
I. COMMENTS ON SPECIFIC PROPOSED REGULATORY AMENDMENTS
Section 572.1Procedures for Review of Projects
The APA is unjustified in requiring completion of permits by other agencies before it reviews a project. This is especially wrong considering the strict and often arbitrary, extra-legal conditions the APA imposes, and the long duration of the APA permit process. It is unjust to require the investment in other permits to be completed when the APA, the least predictable, remains. This new requirement has no basis in law.
A better approach would be to eliminate overlapping jurisdiction, an approach Governor Pataki is seemingly working toward with the just-announced "One-stop Permitting Initiative." But this comment is not to advocate that the permit processes of other agencies be transferred to the APA.
Section 572.3Preliminary Consultations and Conceptual Review
I object to the lengthy section proposed for preliminary consultations and conceptual review. It is far too elaborate and, worse yet, even though it provides for an expensive, detailed program of conceptual review, it all comes down to the words, "nor shall findings or recommendations by the agency members or staff..., be binding upon the agency..." The proposed additional 1-1/4 pages of regulations for preliminary and conceptual review has little purpose.
Section 572.4(b)Permit Application Requirements Generally
As a New York State Licensed professional Engineer, and a civil engineer, experienced in a field dealing with maps and site plans, I object to any APA regulations that would trigger legal requirements under the State licensing law that an applicant for a small subdivision hire a licensed professional engineer or surveyor. This is an unnecessary burden on the small developer or individual landowner contemplating a small subdivision, because it would unnecessarily add to the cost of the project. The cost of hiring a surveyor would make some one or two lot subdivisions unaffordable for young couples. This is a very important area of economic impact in a region with the highest unemployment rates of the state, with most of the Adirondack Park counties experiencing double-digit unemployment while no county in the rest of the state has double digit unemployment levels. Affordability of family homeownership in the Adirondacks, which is part of the culture and tradition of the Adirondacks, should not be impeded by the APA.
State law already spells out where project size and other important features require the engagement of a licensed professional, and mortgage holders already have the liberty to require surveys and plot plans done by licensed professionals. The state law allows the property owner the choice otherwise, and he can make this decision on the basis of economics and personal need.
Although some change has been made in the language, the proposed regulation still leaves the problem that the property owner would generally have the unnecessary requirement to hire a surveyor or engineer for small subdivisions.
Part (b) (ii) refers to the term "deed plot" as a "scaled sketch map." This should instead be "approximately" scaled "diagram" for small subdivisions. Maps are done by surveyors.
Furthermore, this is a definition, and one wonders at this point if the APA has the intention to spread definitions around in the body of the regulations, which is objectionable and obstructs the ease of using the regulations.
In Part (b) (iii), the APA should not require a surveyor's site plan map for all subdivisions. This appears to be redundant to the previous subparagraph and needs re-working.
The exposition by the APA Counsel preceding the Saranac Lake hearing on June 1 indicated that the "deed plot" and the "site plan map" are intended to be different things, with the site plan map to indicate utilities, wetlands and other site features. But this is unknowable to any degree of certainty at this stage of the regulatory hearing process because the definitions are not being discussed concurrently.
For purposes of small subdivisions, the appropriate portion of the (already existing) official town tax map with dimensions of new structures and locations of these and major site alterations (to approximate accuracy such as to the nearest foot for structures and lesser accuracy for site features) should be adequate to indicate information for both the "deed plot" and "site plan map." If need be, the tax map could be enlarged by normal copying techniques to become the framework for the "deed plot."
Section 572.20Renewal of Permits
Some improvement has been made in Parts (a), (b), and (c) with the longer time period for completion of a project. But to be practical for modest-income families building their own homes as they can afford the components, the duration of the permit should be ten years or longer. There is no practical reason from an environmental point of view to set a time-frame for the completion of the project, as the APA accomplishes its purpose with the review of the project. Any time scheduling for single, double, and three family dwellings is potentially burdensome culturally and economically, and may prevent some homes from being built, forcing young couples to give up the traditional objective of owning their own home, or, worse yet, move out of the region.
Part (d) adds burdensome and vague terms for determining whether a project or subdivision is in existence. I object to the terminology that "the agency will consider" various factors in both Parts (d)(1) and (d)(2). This wrongly leaves discretion in favor of the Agency and fails to guarantee the permit holder's rights. The broad discretion in the Agency's powers and the vagueness of this terminology are also contrary to the important objective of improving the "certainty" of regulation in the revision process.
For the purpose of whether a project is in existence within the period stipulated in the permit, the determination that structural work or installation of roads or utilities has begun should be adequate.
For the purpose of determining whether a subdivision was in existence within the period stipulated in the permit, the determination that the subdivision map has been filed should be adequate. In the (objectionable) alternative, the very maximum requirement that the Agency should consider should be that a single lot has been sold, since the existence of the subdivision is part of the terms of the purchase, and the buyer would be harmed by the Agency's failure to renew the permit.
Failing the Agency's agreement to these improvements to this Part (d), the revised rules should define the minimal numerical percent completion in dollar value required for each element noted. Without this numerical definition, the revision fails to meet the goal in the introduction to the revised regulation, which is to codify law. The percent completions could also be spelled out by examples in a limited way, supplemented by numerical percent completion in the actual regulation. Otherwise, the applicant for permit renewal is back in the same boat as before the regulatory revision process, looking up case law.
Section 572.22 (b)Appeals and Requests for Reconsideration
One of the deficiencies of the APA law is the failure to establish a separate zoning board of appeals.
Any zoning decision should be automatically appealable once. The present proposal to allow an appeal to
the APA commissioners (the same individuals who denied the permit) with a majority (six) of the full board is an improvement, but the terms of obtaining approval should be changed to a majority (six) from a supermajority (eight).
It should be noted that the grounds for appeal are very narrow: "erroneous finding of fact or conclusions of law." This means that, in any case, no determinations can be heard for appeal except on grounds that would be serious grounds for litigation. Why not allow the Agency to reconsider before appearing in court, where in these instances the likelihood of winning is great?
Section 573.4 (c)Subdivisions (counting lots)
The regulations should provide that lots on opposite sides of a public road or railroad shall not be counted toward the total number of lots to determine Agency jurisdiction, These should be "free lots" outside the lot count.
Lots on either side of private roads should be counted as separate lots for the purpose of determining the count of lots for Agency jurisdiction.
Public roads should be determined by such documentary evidence as the official inventory of highways maintained by each county for the Department of Transportation and by earlier maps and official records, including the Pathmaster records maintained by each township prior to 1908, by the same manner a court would determine the existence of a public highway.
A major problem should be corrected in the counting of lots. The APA can be arbitrary and contradictory in handling an applicant for non-jurisdiction, depending on the pressure from the interest group concerned with the property under consideration.
If an owner sells a lot, he should not lose his number of lots by right for non-jurisdiction if the buyer beyond his control creates new lots. All lots by subsequent owners should be forgiven with respect to the first property owner's right of non-jurisdiction, unless there is evidence of a shell corporation, cooperation in subdivision, or collusion. Otherwise, the APA is taking property rights, giving them to another. In addition, the Agency is denying due process in the course of dispensing the original owner's development rights.
In the unsatisfactory alternative, the regulation should state that the Agency shall notify the property owner who stands to lose any of his lots by rights without jurisdiction before the Agency entertains any permit application which would impinge on the first property owner.
Section 573.4 (g)Subdivisions (Gift, Devise or Inheritance)
This new section illegally restricts and takes away a clear right created by the legislative negotiations and written into the 1973 APA law to allow property owners to give or bequest land to family members and be outside APA jurisdiction.
In the law, no limit is set on the number of lots for any immediate family member, but the proposed amendment would illegally limit the number to only one lot per family member. Closing this feature of the law, which some might consider a loophole, requires amendment to the law.
In addition, the law leaves open the allowance that the property can be conveyed by a property owner who may have sold his land after the APA act went into effect, and later bought it back. Contrary to the proposed regulations, there is no requirement for continuity in the APA law. This is perfectly just, considering that a family member may want to leave an inheritance or give land to a member of his immediate family even though he might have disposed of the property. There is a limited ability and time-span to the reacquisition of property by a natural person for this purpose, and it hardly presents a threat to the environment. The amendment is not within the APA's statutory powers, and must be deleted.
Section 573.4 (h)Subdivisions (Preexisting Subdivision)
The word "lawfully" should not be added to Section 573.4 (h)(1). This will be a source of great confusion, as well as non-statutory extension of Agency power. In the year 2000 and later, it is far too late to determine whether a subdivision filed in 1973 or prior was "lawful" at the time.
However, it appears that the proposed revisions may intend to go even further than the determination of whether the subdivision was lawful at the time, which is discussed below with respect to Part (h)(3).
Under Part (h)(2), the proposed regulation narrows the definition of preexisting subdivision before the APA law went into effect, wrongfully requiring "substantial expenditures," which was not intended under the APA law. The preexisting subdivision should be defined as a filed subdivision, not one with "substantial expenditures" for structures and improvements as of August 1, 1973, as is proposed.
The new requirement under Part (h)(3) defining "lawfully" (a definition, misplaced in the body of the regulation) enlarges the power of the APA beyond that given by statute. With August 1, 1973 the date to determine whether a subdivision is preexisting, it is an unlawful extension of APA power to allow the APA to evaluate compliance with current law to determine whether the preexisting subdivision is "lawfully" preexisting.
How can a subdivision from 1973 or earlier meet all current requirements of the public health law, the environmental conservation law and any local or other governmental regulation? It appears that the proposed regulation requires that the plats from a date prior to August 1, 1973 to have been filed in accordance with current Real Property Law and Public Health Law! The proposed regulation, written in the present tense, appears to be deliberately created to force an impossibility on preexisting subdivision plats, therefore making all of them "unlawful" and worthless, until filed all over again in accordance with current requirements.
In addition, at the hearing in Saranac Lake on June 1, the APA Counsel made a remark that shows the problem of segmenting this regulatory revision process. He pointed out that "substantial" is on the list of definitions to be completed during a later phase of the project. Without the definition of "substantial," for "substantially commenced" and "substantial expenditures," it is not possible to knowledgeably evaluate Part (h)(2).
Section 588.9Cooperative Agreements
The APA has no authority to enter into cooperative agreements with federal agencies. The APA has already been exceeding its statutory authority by contracting to do wetlands maps for the federal government and performing GIS database development for a multitude of government agencies through the state.
The APA should not take on the methodology of DEC of entering into cooperative agreements to help the federal or other state agencies to increase their enforcement powers. At present the DEC refers wetlands enforcements beyond its powers to the federal government, thus making an inescapable juggernaut for the property owner who comes before the DEC to learn that he is outside DEC's jurisdiction. In effect, these cooperative agreements can make the state agency an enforcement arm for the federal government.
The APA should be working to eliminate overlapping jurisdiction, not to partner with other agencies, including federal agencies, to increase enforcement possibilities. There seems to be no indication of any plans to eliminate overlapping jurisdictions as part of APA regulatory reform, however.