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Bill Would Hurt Local Economy and Homeownership

ADIRONDACK PARK AGENCY PROPOSES DANGEROUS BILL

Shorefront Property Owners Are Targeted for Property Rights "Takings"

by Carol W. LaGrasse, March 9, 2005

The Adirondack Park Agency is beginning to attempt a low-key passage of legislation to tighten up areas of the APA law that they have found frustrating over the years. The areas of the law that the APA would like change, however, afford a small amount of comfort to property owners and should not be revised. The APA legislative program should be roundly opposed because it presents a threat to private property rights and will have a significant negative impact on the people and economy of the Adirondack region.

An informal description of the APA legislative program is circulating, rather than precise legal wording. This lack of clarity makes it difficult to comment on some aspects of the proposal. However, some portions of the proposal are crystal clear and their disadvantages are obvious. In fact, some aspects of the law that the APA would like to change are precisely those features that were originally enacted to provide at least some limited protections for property owners, or to carry out the mandate for balance in the bill's introduction, and the like. Other clauses that the APA bill would alter are currently at least within reason, such as the height limitations, and would be replaced with extreme limitations.

Without reviewing the entire APA program bill, here is an explanation of why a few examples of the proposals are clearly noxious. These proposals all relate to shoreline restrictions.

This proposal should be rejected because, from a practical or "environmental" standpoint, shorelines are not being desecrated because of the relatively small number of lots being developed along the hundreds upon hundreds of miles of shoreline in the Adirondacks. From the point of view of private property rights and landowners, their clearly defined, but limited, right to develop shoreline lots should be preserved. The APA law, as enacted, acknowledged the value of shoreline lots by establishing separate standards.

The wording of the APA proposal is deceptive. In the APA law there are restrictions in shoreline setbacks and minimum width along shoreline, which, of course, do not apply to non-shoreline lots. There are also shoreline vegetative cutting restrictions. The law balances these tighter shoreline rules with lot size rules, and allows somewhat smaller (but not small) lot sizes for shoreline lots than for non-shoreline lots. The shoreline and non-shoreline lot size requirements differ for each land use category. The Rural Use areas, which, along with Resource Management, are the most strictly zoned and comprise the largest acreage in the Adirondack Park (87 percent of the land), for instance, must have 80,000 sq. ft. (approximately 2 acres) per lot for shoreline lots, and 320,000 sq. ft. (approximately 8 acres) for non-shoreline lots. For Moderate Intensity land-use areas, for example, shoreline lots must have 25,000 sq. ft (approximately 5/8 acre) and non-shoreline lots must have 40,000 sq. ft. (about an acre). The proposal refers to the shoreline lot sizes as "substandard lots." However, the word "substandard" is entirely subjective, and is used to slant the debate, as though there is something offensive about the shoreline lot requirements. The shoreline lots, with accompanying width, setback, and vegetative cutting restrictions (which, by statute, are not imposed for non-shoreline lots) are standard shoreline lots, and the non-shoreline lots are standard non-shoreline lots. Neither is substandard of the other; rather both sets of standards are statutory.

At present, the property owner may cut 30 percent of the trees over 6 inches in diameter during any 10 year period within 35 ft. of the mean high-water mark. If, for instance, the lot includes 300 ft. of shoreline, the 30 percent may be entirely within one 100-ft. segment of shoreline. This, coupled with the allowance to cut up to 30 percent of the shoreline vegetation within 6 ft. of the mean high-water mark, means that this hypothetical property owner may currently make a 100-ft. shoreline clearing on that lot, more or less, taking into account the distribution of the trees. (Wetland vegetation is separately regulated.) Under the proposal, two interpretations are possible. The first is that the 30 percent would apply to each 100-ft. segment, allowing three 30-ft. strips of cleared shoreline. The second interpretation is that the 30 percent would apply to all of the trees, evenly distributed within each 100-ft., allowing no open clearing to the shoreline. Considering that the APA is currently imposing the latter idea without statutory authorization (e.g., requiring that houses be hid from view from roads and shoreline by leaving most trees in place), this interpretation of the first part of this section of the vaguely worded proposal could be the intended meaning.

The second part of this section of proposal is clear given an understanding of the current requirements for differing shoreline principal structure setbacks for each land-use classification. For instance, by statute, the cutting restriction of a maximum of 30 percent of the trees applies to a distance of 35 ft. from of the mean high-water mark, irrespective of the land-use classification. Under the proposal, the 30 percent cutting maximum would apply to 100 ft. from the shoreline for Resource Management areas and 75 ft. in Rural Use areas. These combined land-use areas comprise 87 percent of the land in the Adirondack Park. The cutting restrictions for the remaining land-use classifications would apply to 75 ft. from the shoreline in Low Intensity areas, 50 ft. in Moderate Intensity areas and Hamlet areas. The proposed cutting restrictions, if enacted, would impose a massive taking of private property within the Adirondack Park.

This would subject structures within 500 ft. of shoreline that are over 28 ft. high to APA review except for those within the relatively few towns with APA-approved land-use plans, in all but the very small amount of land reserved for Hamlet and Industrial Use.

At present, the height regulation in the APA law applies to structures in excess of 40 ft. The law classifies such structures (with the exception of residential radio and TV antennas) in all land-use categories as Class A regional projects, meaning that an application for an APA permit is required even if the structure is a "primary use" or "secondary" compatible use in the land-use area, as is the case with a single-family residence. At present, with certain exceptions, a single-family two-story house outside of Resource Management does not require a permit.

The proposed Class B project limitation of 28 ft. in height would, in 90 percent of the municipalities in the Adirondacks,* bring all peaked roof residences (virtually all site-built houses) over a single story in height under APA review for the property owners within 500 ft. of "navigable" shoreline. (There are already strict setback requirements for residences, as noted above-50 ft. in Hamlet and Moderate Intensity, 75 ft. in Low Intensity and Rural Use, and 100 ft. in Resource Management.)

Along with the requirement for 100 ft. "forever wild" buffer strips being routinely imposed, this imposition of single story height to residences has been imposed by APA staff during the "backroom" stage of the permit process to make houses invisible from highways. This has been an expensive proposition for property owners, few of whom know that it represents the imposition of a power to regulate "aesthetics" (which the APA interprets as "visibility") specifically deleted from the APA's powers during Assemblyman Glenn Harris's negotiations with Gov. Nelson Rockefeller in 1973. The imposition of a 500-ft. structure setback for any two-story residence would be extreme, and would also serve no environmental purpose. It would, in fact, encourage lower houses, which are less efficient to heat, a major environmental and economic consideration in the severe Adirondack climate. In addition, the idea is environmentally illogical; by requiring more roof area per square ft. of living space, the single story requirement would increase impervious surface (roof) runoff, a feature ordinarily of concern to surface water pollution control advocates.

However, the real issue is that created by the unrelenting pressure from extreme environmentalists, exemplified by APA staff, to make waterways off-limits to all but "their kind," young, canoe kayak and rafter recreationists, with no one else to "sully" their view. ("Navigable is now defined as usable by canoeists, even if extensive portaging is needed to travel; this means that even small streams would require the extreme setbacks.) There is no peer-reviewed literature to bolster the allegation of validity to any claim that residences in lots spaces as allowed in the APA Act (where the lot width is already restricted to 50 ft. in Hamlet, 100 ft. in Moderate Intensity and Low Intensity, 150 ft. in Rural Use, and 200 ft. in Resource Management) in the APA Act would have a negative impact on waterways.

But tying up property along waterways and shorefront so that selected recreationists rather than ordinary people, especially local property owners, can use these, is a key goal that was put forth in detail by the Cuomo/Berle Twenty-first Century Commission on the Adirondacks in 1990. The extreme rules then proposed were thoroughly discredited and they need to be rejected again - even though a Twenty-first Century commissioner who supported these goals, Ross Whaley, is now the Chairman of the Adirondack Park Agency.

This proposed additional restriction on the use of private property has no practical value. It is not needed to protect shoreline from erosion because the law already has strict limitations that prevent excessive access to shoreline, as well as restrictions on tree cutting, vegetative cutting, and setback. In addition, shorefront wetlands and shore areas of Wild, Scenic and Recreational rivers are strictly protected by separate laws administered by the APA.

However, the proposed law would reduce the property rights of many shoreline owners, who would be deprived of the rightful ability to receive compensation for access to shoreline.

The proposed law would deprive shoreline owners who wish to sell back lots from including the right of access to shoreline as part of the deeded rights conveyed to the grantee. The proposal would thereby deprive less wealthy non-shoreline owners an affordable means of obtaining some modest rights to enjoy the nearby waterfront.

The right of access to shoreline when selling back lots has been historically granted. This prohibition of access from back lots to shorelines of less than 100 ft. would reverse a policy that has worked satisfactorily.

In addition, the proposed law would work against the idea of the public trust in navigable waterways, by diminishing the ability of private owners to share their riparian rights by negotiating through a private transaction. Since "contractual" access can, by legal tradition, be interpreted to include an oral agreement, no back lot owner would have access to the shoreline through property that has less than 100 ft. frontage. Once again, contrary to the publicly avowed intentions of the APA and its environmental advocates, this proposal demonstrates an attempt to selectively lock up access to recreational use of waterways—e.g. by prohibiting local property owners from having access. Enjoying the close proximity of a water body is universally recognized as relaxing and beneficial for people, an aesthetic and psychologically positive experience. It should be state policy to maximize access through private arrangements to shorefront. But the APA proposal has a discriminatory agenda. Visiting recreationists, who are the clientele of the APA and its advocates, would, of course, be permitted to have waterway access, via accredited locations, such as at the ever-increasing government-owned shorefront.

Local Adirondack Economy.

During recent years, it has become strikingly apparent that it is essential to the future economic wellbeing of the Adirondack region to protect private property rights in waterfront land. The combination of mandated APA large lot size and other APA property restrictions, New York State's aggressive land acquisition—especially shorefront acquisition, and real estate pressure by buyers originating outside the region, who have—on the average—more wealth than Adirondack residents, is driving up the price of land to a level that local people cannot compete in the real estate market.

Until recently, new property owners from outside the region were much more likely to buy shorefront properties, which left properties in little town centers and many back roads accessible to local buyers. This is changing. Shorefront properties are becoming less of a relief valve for the pressure of real estate prices. Purchasers from outside the local areas are now buying up houses in the town centers that were formerly considered undesirable. With each passing year, local young people are finding it more difficult to buy land or a modest house to make their home and raise their family.

The proposed regulations would represent a concrete diminution of the real property base for the Adirondack economy. Waterfront property is the most valued real estate, and its diminishment would have a significant negative economic impact on the local economy.

Summary. The APA's proposed additional strictures on the use of shoreline properties should be roundly rejected. They represent a fanatical, elitist environmentalist idea that shorelines should be somehow sacrosanct except for use by certain recreationists. The APA and radical environmentalists think that property owners and local people should not fully enjoy their beauty and economic benefit. There is no reason for the proposed revisions, considering that people are complying with the law and that the shorelines are not being debased. In fact, Adirondack shorelines are beautiful and, under the APA law, will continue to be beautiful. The water in Adirondack lakes and streams is of high quality, with little impact from shorefront runoff that could be traced from building construction. The proposed APA legislative program would infringe on property rights, have no rational basis as public policy, and would thereby constitute a taking under the Fifth Amendment to the U.S. Constitution.


Notes

*Those municipalities without APA-approved land-use plans.

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