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State & County Officials: No Impact on Property Owners

Plan for Scenic Byway in Greene County Arouses Controversy

Councilman's concern for property rights slows designation

By Carol W. LaGrasse
December 2002

Scenic Byway designations are touted as innocent measures to promote tourism by encouraging beautification while bringing in government grants. However, Frederick W. Dedrick, Sr., a councilman in the town of Athens in Greene County, has held up local support for the designation of Route 385 as a Scenic Byway because he fears that property rights will be infringed.

At the December 1 meeting of the Athens Town Board, Mr. Dedrick raised concerns about the idea of a management plan for the route.

"I don't know what they are going to be managing, but it's probably somebody else's land," said Mr. Dedrick, according to an article in the Catskill Daily Freeman on the following day.

During a telephone conversation a few days later, Mr. Dedrick discussed his concerns. He said that he thought that his questions were not answered fully. For instance, a spokesman for the New York Department of Transportation, Peter Graves, reportedly said that there would be no state restrictions on land use along the Scenic Byway. He did say, however, according to the Freeman in a later article, that a federal regulation about "billboards" could apply.

"The only rule, which is a federal rule, is that on any portion of a scenic byway, you can't put up new billboards," Graves said, according to the Freeman article, which was written by Fred Johnson. "Billboards that were there prior to designation, they can stay." However, businesses rely on signs to let people know about their services, and Mr. Dedrick was concerned that smaller signs could also be restricted. .

What size signs are prohibited in Scenic Byways?

An investigation revealed that the use of the word "billboard" by the Scenic Byway advocates may be misleading.

According to the Freeman, a 3.48-mile stretch of Route 385 from Coxsackie to the village of Athens, was designated as a State Scenic Byway when the Department of Transportation began the program in 1992. However, the billboard rule, as reported by the Freeman, involves signs much smaller than signs that people would think of as "billboards." The newspaper pointed out that the signs that are allowed on the route under the federal law include "For Sale" and "For Lease" signs, directional signs, Department of Transportation signs, and "Free Coffee" signs.

The Freeman pointed out that signs visible within the Scenic Byway, but not intended for viewing from that highway, also would be allowed, depending on size, content and angle in relationship to the highway. However, a reading of the federal Scenic Byway law leaves some question about the rights of owners of property within the viewshed of the Scenic Byway. The law states that one of the purposes of the Scenic Byway is "for protecting and enhancing the landscape and view corridors surrounding such a highway."

As it turns out, the statute itself does not specify the sizes of signs that would be allowed. Instead the rules are found in an advisory committee report mandated by the Intermodal Surface Transportation Efficiency Act of 1991, the law that established the federal Scenic Byway program. The end result is that virtually all signs of a size to be visible from a motor vehicle are considered "billboards." This enables the officials and advocates to refer to "billboards" during the period before a Scenic Byway is approved, thereby misleading people into inferring the meaning of the word as it is normally used, as a very large sign high above the ground that is readable from a good distance at high vehicle speeds. Considering that the regulatory meaning of "billboard" for the purpose of the Scenic Byway corridor includes virtually any business sign visible from a car, new business signs are prohibited unless they are grandfathered or they fit within the narrow exceptions allowed under the regulations.

Restrictions afoot along the Hudson would be augmented by the Scenic Byway designation

The Hudson River is already part of the Hudson River Greenway, a New York State Legislative program to foster uniform environmental zoning from Troy to the Battery Park, and land trust/government acquisition of land for environmental preservation. In addition, the river has received Congressional designation under a National Park Service program as the Hudson River National Heritage River (NHR) from Troy to the New York City line. Furthermore, an Executive Order by then-President Clinton designated the Hudson River American Heritage River (AHR), after nomination by Governor Pataki to this administration program.

The two federal designations are also greenway programs. The lead agency for the NHA program is the Greenway Communities Council and its associated conservancy. The lead New York State agency for the federal AHR program is the State Department of Environmental Conservation. Originally, among a multitude of federal agencies involved in the AHR program, the federal "Facilitator" was in the Bureau of land Management for the Department of Interior. When the Hudson River "Navigator" was appointed to fill an office by that name for each designated AHR, an official from the U.S. Department of Agriculture was chosen, succeeding another official, who was in the Watersheds and Wetlands Division of that department who had been the AHR "Interagency Contact." The Greenway and National Heritage River programs affect a county-wide swath of land, but the width of American Heritage River designations is not set in stone.

Owners of private property along the Hudson greenway also face pressure because of certain environmental groups, Scenic Hudson, the Riverkeeper (the original "Riverkeeper" after which the AHR regional governmental officials were named), and the Friends of the Hudson, which devote their organizational resources to protecting the river from development. These organizations have been busily opposing a power plant proposed to be built in Athens and a cement plant proposed nearby. Cement production is one of the traditional manufactures in the area, which is rich in limestone.

The Scenic Byway plan involves several main elements, all of which raised Mr. Dedrick's hackles: an inter-municipal partnership involving Athens, Catskill and Coxsackie; the passage of local ordinances to protect the Scenic Byway; a Scenic Byway corridor management plan, integration of the Scenic Byway with the Greene County Open Space Plan; and grants and funding for the Scenic Byway plan.

One of Mr. Dedrick's top concerns is that Scenic Hudson, a not-profit organization that invariably opposes projects that would be good economically for the area, might be selected to author the management plan. He is concerned that Scenic Hudson might influence towns to pass restrictive zoning ordinances if it is put in charge of the management plan. To "integrate" the Scenic Byway program to the county open space plan would mean more zoning, Mr. Dedrick predicts. In this way, although it can be "truthfully" said in a narrow sense that the state would not impose any new regulations except sign rules, the state/federal Scenic Byway designation would indeed bring in more zoning. However, the upper levels of government would exert their power indirectly, because it will be the towns that implement new rules required by the federally mandated management plan to protect the corridor.

Mr. Dedrick pointed out how hard the local people worked ten years ago to defeat the Greenway in several of the towns in the vicinity, but that Greenway-style programs are now being slipped through under other guises.

At the same time, the counties are beginning to circumvent the towns by opting into the Greenway directly. The legality of this is questionable, because New York State law allows local towns to control zoning, and because the Legislature intended that the Greenway compacts were to be on a voluntary basis between the New York State Greenway Communities Council and each of the local towns. In fact, the voluntary nature of the Greenway program was the key to its passage, after the earlier, compulsory version was rejected.

The carrot and stick method under the Greenway program has evolved to affect state aid for essential services, rather than being restricted to state assistance for fancier non-essentials such as visitor centers. Some state grants for water and sewage are restricted to Greenway communities; this discriminates against some areas, cutting out home-rule minded towns that reject Greenway-style zoning.

"Why can't we get the grants without the stick?" Mr. Dedrick asked rhetorically during a recent interview. "We don't need grants with the new power plant."

Mr. Dedrick has been noticing that land is going off the tax rolls in the Greenway towns. He is concerned that the combined programs of the Scenic Byway, Greenway, and the like are an impetus toward large amounts of land being taken off the tax rolls by one means or another, according to the newspaper article.

This concern arises naturally in connection with greenway programs and designated scenic travel corridors. The scenic travel corridors have many similarities to greenways, but are usually narrower in geographic scope. In order to complete a greenway, private property must be acquired by land trusts and government for enough parks to create a consistent greenway atmosphere, and, ultimately, for true greenways, enough government-owned land for one virtually continuous park. As more regulations come in to block small businesses, as industry is stymied, as land is set aside for not-profit/government tax-exempt ownership, tax pressures on remaining owners mount, and the process of building the greenway becomes self-feeding.

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