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Founded 1994

reprinted from the New York Property Rights Clearinghouse, Vol. 6 No. 1 (Spring 2002)

March 27, 2002:

Elites keep locking out ordinary rural people from using their land

"CLEARING AND GRADING CONTROL" LAW PROPOSED
Town of New Paltz rules would add new layer of restrictions

By Carol LaGrasse

"Don't touch your land without a permit" will be the motto in New Paltz if the town board passes a new law that was proposed on February 27. Preservation of natural beauty, environmental sensitivity, and protection of water resources are said to be the reasons behind a new zoning law under consideration in the Town of New Paltz.

Property owners will have to obtain town approval for clearing of an area as small as a 50-ft. x 100-ft. city lot, for site preparation and grading where the grade elevation changes more than two feet, and for cutting more than six cords of timber on any one lot for any but personal use.

In addition, they will need town approval for cutting any trees for a new curb cut, driveway, or other access unless they already have a building permit for the work. This means that a property owner may not be able to cut a new route for a logging vehicle, walking path, or even a garden path without town approval.

Other restrictions include the requirement for a permit for any clearing, excavation, filling, grading or any other activity that prepares a site for a land use change or modification within a flood plain. The full meaning of this restriction is unclear, but it obviously requires that even new gardening within a flood plain would require town approval.

The proposed New Paltz requirement is substantially stricter than the federal flood insurance legislation and the law that was passed to implement it in New York. The federal-state flood plain law mainly affects structures, even as small as an outhouse, but does not require review of plans for a family volley ball court or garden.

Clearing, grading or filling within fifty feet of a watercourse also would need a permit under the New Paltz proposal. Because the two feet change in elevation is not stipulated as a trigger for the permit requirement near a watercourse, very minor homeowner improvements would come under the town's requirement for perusal.

An example of activity needing a permit would be a small erosion control measure such as a fieldstone retaining wall like those so common in the countryside in upstate New York.

It is hard to imagine the farmers who cleared the woods for now-overgrown pastures and dragged the stones into stacks to build fieldstone walls carrying out their backbreaking work if they had to prepare a permit application and face a bureaucrat for approval of each iota of activity they faced daily. Agriculture is exempt from the new law, but it is a concern that a minimum income level could be required to qualify as agricultural activity.

Especially onerous are the town's proposed requirements for professional submissions to get a bureaucrat to review a property owner's application. Among other material, the proposed rules require:

"One (1) original drawing and four (4) black-and-white prints of all plans, maps and/or surveys and of all other supplementary documents and written applications shall be filed with the Planning Board."

"All original drawings shall be submitted on drawing media suitable for reproduction and shall be drawn to scale and accurately dimensioned. A horizontal scale of one inch (1") equals no more than one hundred (100') feet, and a vertical scale of one inch (1") equals no more than twenty (20') feet."

Not many of the ordinary rural people dwelling in the upstate New York countryside could prepare these application drawings without expensive professional assistance. The proposed law bends over backwards trying to define the exemptions, but it is impossible to list every exemption that has little implications for issues with which the framers presumably have concern. It is hard to be confident that the ordinary property owner who has not recently gotten a building permit that includes the express activities contemplated will be able judge whether he needs to apply to the town.

The stipulated exceptions seem to be overridden by the "sensitive environmental areas" discussed below, anyway.

Sensitive Environmental Areas

The proposed law creates the grounds for broad jurisdiction in its definition of private property as "sensitive environmental areas," which are defined not only by physical conditions but by "environmental setting."

Rather than providing a map which would depict clearly the exact bounds of the sensitive environmental areas and exempt all other property from this classification, the proposed law simply lists seven categories that would be open to many interpretations:

Only one of the categories of "sensitive environmental areas" fit a definition that is quantifiable or defined, that for "Slopes greater than 15%."

A property owner who is not a land-use professional could mistakenly think that the second category of sensitive environmental area is clearly defined. This category is "Wetlands, bogs and marshes, as regulated by state and/or federal agencies." But those who are knowledgeable of state and federal wetlands laws are fully aware that even where the State of New York has mapped wetlands, the Department of Environmental Conservation imposes more expansive wetland boundaries than the maps depict. Federally jurisdictional wetlands can be even smaller than those under State jurisdiction, and, moreover, are unlikely to be mapped. But even without this lack of clarity, why would the town impose a third layer of jurisdiction on the already over-regulated wetland property owner?

The next category appears to be defined, as it begins with the descriptive phrase, "Floodplains, as shown on Federal Emergency Management Agency (FEMA) mapping." These maps are established and are officially filed. But the phrase doesn't end there, continuing with "and other historically known flood prone areas." Since the phrase doesn't continue further with reference to a particular map on file at the town hall or county clerk's office, it will be hit or miss whether the landowner would know what the "historically known" flood prone areas are. Even a professional hydrologist would have to conduct a study to determine this information. And, will the building official be professionally qualified to judge the historical accuracy and flood prone aspect related to the property for which the application is being made?

The final four categories of sensitive environmental areas could pose more of the worst regulatory conundrum for the property owner, uncertainty.

The fourth category, "Unique natural geological formations," would seem to have already been defined somewhere, in a book or map, but no such reference is cited. The landowner is up in the air. But the word "unique" could be open to interpretation, actually. For example, is a geologic formation thirty feet high unique, when the same sort of formation of only ten feet tall is commonplace? One would think that the unique formations could be pre-listed.

Who is to know where the features in the next category are located, "Historic landmarks or structures, of local, state or national importance, whether or not listed on State or National Registers of Historic Places"? Is the town board thereby indirectly advising the property owners within its bounds that it will enforce the New York State Department of Environmental Conservation's secret map, inaccessible under the Freedom of Information Law, that locates every arrowhead location reported to DEC or the Office of Parks Recreation and Historic Preservation? Within a large radius around such marks on the secret map, a landowner may be required to hire a professional archeologist to investigate the land before disturbing it.

And, who is to know where "Scenic views known to be important to the community or identified in the Town Master Plan" are located? The mere addition of a comma to this clause after "community" would satisfy the due process requirement that the location of the scenic views that are jurisdictional are pre-determined.

Finally, to continue the unconstitutional attitude that is all-to-prevalent today among government bureaucrats that they should have "discretion" to decide where to apply the rules, the last definition includes "'Critical Environmental Areas' and areas known or expected to support rare, threatened, or endangered plant and/or animal species."

"Critical environmental areas" are not defined in the proposed code, and no map or other indication of their location is referenced.

Perhaps the second part of this final clause defining sensitive environmental areas refers to the DEC Natural Heritage Program maps created with The Nature Conservancy, and constantly being updated. These maps are exempt from the Freedom of Information Law, however. But there is no way to know exactly what lists or data-base, much less a map that would satisfy the requirement for due process, are intrinsically referenced in the final clause under this section of the proposed law.

Perhaps the framers had nothing in particular in mind and are of the opinion that any place that some future regulator can construe as capable of harboring certain species, now or in the future, requires the town's special, expensive perusal, and their impositions on the private property owner.

Fines and imprisonment

Each week of continued violation of the proposed law is to be considered an additional violation. Fines begin with $350.00 and/or six months' imprisonment per offense and rise to $1,000.00 and/or six months' imprisonment per offense within a five-year period for three or more offenses during five years.

Home Rule Law

The reality that the proposed New Paltz "Clearing and Grading Control" law could be proposed under the home rule provisions of New York State law points once again to the need for state statute protecting private property owners from the arbitrary land use jurisdiction of local municipalities. Although they are helpful in certain respects, the state zoning statutes are inadequate to protect property owners from the passage of arbitrary, unconstitutional local laws. In addition, New York State desperately needs a private property rights defense bureau in the Attorney General's Office or, at a minimum, in the State Human Rights Division.

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