Rejected in 1990-91, Twenty-first Century Commission Goals Implemented by DEC and APA
ADIRONDACK AGENCY PUTS FINAL STRANGLEHOLD ON 18,896 ACRES
Long Pond Tract Was Site of Big 1972 Horizon Plan, "Threat" Helped Pass APA Law
By Carol W. LaGrasse
Over fourteen years ago, the people in New York's mountainous Adirondack region succeeded in defeating radical recommendations to further restrict land use and to buy up more land for the state-owned "Forest Preserve." However, state agencies press on to implement the recommendations. A recent state permit for the subdivision of nearly 19,000 acres owned jointly by Long Pond, L.L.C., and another company illustrates the denouement of preservationist pressures in the region. Without state preservationist restrictions, the tract could have provided opportunities for development, to the benefit of year-round residents and vacationers, as well as, at the very least, continuing the established level of recreational use by hunters, with its corollary benefits to the local economy and people.
In fact, the Long Pond land is part of the former 24,000-acre Horizon Corporation tract, the parcel that, in an important sense, began it all. Horizon's proposal in 1972 for a development of 10,000 houses was successfully exploited nationally by preservationists as a threat to the wilderness to facilitate the passage of the Adirondack Park Agency Act. The historic act created a regional zoning agency controlled by governor-appointed commissioners to regulate the private property and state-owned land within the six million-acre, tendentiously titled, Adirondack "Park."
During 1990, the Adirondack Park Agency, known locally as the APA, created the original legislation to implement the radical 245 recommendations issued that year by the Commission on the Adirondacks in the Twenty-first Century appointed by Gov. Mario Cuomo. National Audubon Society President Peter A. A. Berle, who had been the point man in the State Assembly in the passage of the final version of the APA Act in 1973, chaired the commission. Robert Glennon, APA executive director in 1990, authored the legislation, a letter-perfect legal reading of the commission's radical preservation recommendations. Sequestered in legislative committees to keep it from causing even more vociferous outrage than that which the commission's glossy illustrated report precipitated, the legislation and its onerous little brother and sister bills submitted by then-Gov. Cuomo and preservationist members of the legislature never came to the floor for a vote. At the same time, a parallel measure, a statewide referendum known as the 1990 Environmental Quality Bond Act, to use almost $2 billion to buy up 654,850 acres of private land for the constitutionally protected "forever wild" State Forest Preserve in the Adirondacks, was defeated by the voters during this time of Adirondack upheaval.
The total defeat of the Twenty-first Century Commission's legislation did not stop the New York State Department of Environmental Conservation (DEC) and the APA from implementing many of its significant recommendations after the commission was disbanded. The DEC, which is the state's behemoth environmental protection agency, is also the land acquisition agent and title-holder to New York's Forest Preserve lands, including all the state-owned land in the Adirondack Park. Lacking legislative oversight, the APA and DEC keep implementing extreme preservation beliefs. One of the commission's recommendations was that the minimum lot size for the most strictly zoned private land, then totaling 2.7 million acres within the "park," would be 2,000 acres, after a single entitlement of one primary residence was allowed on the lands of any existing large landowner, however much land this owner possessed. This would have meant that 87 percent of the land within the Adirondack Park, an area of government and privately owned land spanning twelve counties, would have been consigned to preservation, either the domain of the very wealthy or, with restrictions, that of the timber companies, and ultimately vulnerable to state acquisition. By law, the APA zoning for these lands was then and remains 8.2 or 42 acres per dwelling, already some of the most strictly zoned land in the United States.
The Twenty-first Century Commission had also heavily emphasized the use of conservation easements to preserve private land. Conservation easements are a way of splitting the title to land so that a non-profit organization or the government absorbs the development rights and other land-use potential. The state government has already acquired, or has announced the acquisition of, conservation easements on over 500,000 acres of Adirondack land during the fourteen years following the Twenty-first Century Commission's recommendations.
The latest chapter in the status of the Long Pond tract illustrates the inexorable slide of land in the Adirondacks toward a regulatory and ownership status that is at least as restrictive as the recommendations of the Twenty-first Century Commission. Local officials serving by appointment on the APA commission, to say nothing of locally elected government representatives, have seemingly lost all memory of the heated, effective Adirondack opposition to additional state land acquisition and the other Twenty-first Century Commission recommendations. In fact, Twenty-first Century Commissioner Ross Whaley, who in 1990 had signed his name to its onerous recommendations, was appointed APA Chairman in 2003, with nor even a murmur of opposition from local governments.
At the September 9, 2004 monthly meeting of the Adirondack Park Agency, the APA commissioners considered the application of Long Pond, L.L.C., and New River-Franklin, LTD., joint owners of a property known locally as the Long Pond tract, comprising 18,896 acres of land in the sparsely populated towns of Colton and Clare in St. Lawrence County, a backwater area stretching from the Adirondacks to the St. Lawrence Seaway on the Canadian border. The official unemployment rate in St. Lawrence County varies from over six percent during summer to over ten percent in winter.
St. Lawrence County is already being socked by the state acquisition of the 139,000-acre Champion International tract, which is largely within that county. That 1999 state acquisition involved 29,000 acres as fee simple, generally the most desirable and accessible land along waterways, which became "Forever Wild" Forest Preserve, and 110,000 acres as conservation easements. According to the Champion deal, all 299 hunting camps on the entire tract will be removed or demolished by 2014, beginning with the camps on the beautiful fee simple land in 2004. Even though the conservation easement land is said to be intended for permanent timber production, which had been harmonious with the hunting camps in the past, the easement terms doom the hunting camps. The loss of their means for enjoying hunting and family recreation is being painfully felt by the lease-holding hunters and their families. Local businesses are already feeling the loss in trade.
Before the application for the APA permit, the Long Pond tract, used for timber production and hunting camps, was already subject to a 1999 conservation easement held by the DEC. The forested land contains 43 hunting and fishing camps. The 2004 application to the APA was for the subdivision of the large tract into six smaller, but also very large, tracts, ranging from 2,700 acres to 3,600 acres. To hark back to the Twenty-first Century Commission's unapproved, radical 1990 recommendations, its 2,000-acre minimum lot size stands out. Although negotiated in 1999, the conservation easement is not widely known to exist, which is typical of the secretiveness of such transactions (1) unless the state has a plum to announce to curry favor with the environmental lobby. The easement set out the maximum of six lots in any future subdivision of the property.
The APA permit reinforces all the terms in the conservation easement. Reflecting the strictures in the easement, only six of the 43 existing hunting and fishing camps are allowed to remain, one on each of six lots to be created. (2) The permit therefore makes it an APA requirement that the remaining 37 camps be removed or destroyed. This means that eighty-six percent of the existing camps will be lost. The principle of one primary use per 2,000 acres, central to the Twenty-first Century Commission recommendations, thus has been further narrowed to only a single camp on parcels even larger than 2,000 acres.
The other APA permit terms are harsh. The new owners are prohibited from building new structures, but can expand to 1,350 sq. ft. the primary building at each camp, as is allowed in the conservation easement. The camps have accessory buildings such as woodsheds and outhouses. The new owners are prohibited from relocating any structures, including accessory structures, except that outhouses, even at camps to be removed, must be relocated if within 100 feet of a wetland or a permanent or intermittent watercourse. A professional Forestry Management Plan is required for each of the six lots before conveyance, with APA approval of activities deemed jurisdictional. Furthermore, the transfer of the six lots requires a certification of compliance with the conservation easement to the state DEC.
Also prior to transfer of any lot, the applicant has to certify compliance with river corridor restrictions on cutting that are laid out in the permit. The APA had received a letter from the preservationist Residents Committee to Protect the Adirondacks (RCPA) alleging cutting violations within the area of the Grasse River where it is protected under New York's Wild, Scenic and Recreational Rivers Act. As is typical, the agency had jumped in response to an allegation from a preservationist group. However, the APA staff reported that, upon investigating, they had found no violation of the clearcutting permit, which had previously been issued for a total of 270 acres on various sites. Although the permit is vague as to what kinds of conditions will be imposed on forestry management, multiplying the many miles of river frontage designated under the Rivers Act by that one-quarter mile buffer results in a great amount of acreage in productive timberland that will come under APA control.
Fanatical, Picayune APA Debate, No Effective Local Property Owner's Voice
At their September meeting, the APA commissioners debated how to certify compliance with cutting restrictions. Finally, Commissioner Richard Hoffman, remarking that he had "great difficulty with something so simple," contributed the wording that the APA inspection has to find compliance before any property transfer could take place. APA attorney Richard Terry finalized the wording of the permit language requiring the compliance certification, including that the permit's required 1,325 ft. setback from river edges would apply to all land-use and development, and to vegetative cutting.
As is the practice at the APA, the permit conditions had been negotiated between Long Pond and the APA staff before the application was presented to the commissioners at the monthly official meeting. It is rarely possible to know what takes place during the negotiations with the staff; and in this case, little more than the final results of the negotiations, namely, the staff recommendations made by Environmental Program Specialist Virginia Yamrick to the commissioners, are known.
The APA commissioners exerted their scrutiny over the already-stringent permit conditions. APA Commissioner Katherine Osborne Roberts, who lives near Gov. George E. Pataki in Putnam County and was formerly the executive director of the Open Space Institute, asked whether the state unit management plans covered trails on the parcels. Karyn Richards, who represented the DEC on the APA commission that day, explained that the State Land Master Plan does not provide oversight on private land.
Her explanation puzzled APA Commissioner Cecil Wray, a corporate lawyer with homes in Manhattan, Keene Valley in the Adirondacks, and Gov. Pataki's home town of Garrison on the Hudson. He asked whether the conservation easement lands are part of the Forest Preserve. APA Executive Director Daniel Fitts replied, "No," and explained that Article 49 of New York's environmental conservation law was one of the first such pieces of legislation and laid the foundation for the use of conservation easements nationally. (The conservation easement spells out, "It is understood and agreed by the parties that the lands constituting the Protected Property do not, by the granting of this easement, become a part of the Forest Preserve.")
Mr. Hoffman, who represents the Department of State on the APA Commission, continued the discussion about public foot trails allowed in the unit management plans. Ms. Richards explained that DEC will develop a recreation plan in the unit management plan. The term "unit management plan" adds further confusion, as it is used by DEC in managing its Forest Preserve lands as well as for its management of conservation easements, even though properties encumbered by easements are considered private lands and are not recognized in the State Land Master Plan.
Ms. Roberts expressed her concern about new roads allowed by the conservation easement. Continuing this discussion, DEC's Ms. Richards explained, "Our unit management plans for conservation easements don't get approved by the APA."
John Banta, the APA's chief counsel, asked that additional conditions be added to the permit to coordinate with DEC on the easement. The question of how the APA could participate in the approval of new roads under the conservation easement was not resolved
Joseph Rota is the executive director of the Adirondack Park Agency Local Government Review Board, an independent agency established in the APA law as part of a compromise accomplished in 1973 by then-Adirondack Assemblyman Glenn Harris to give a voice to local government. He sits at the table with the APA, although he has no vote. At the meeting, Mr. Rota asked how the area of five or ten acres associated with each cabin differs from the remaining acreage. He was told that each camp has the exclusive right to occupy either five- or ten-acre areas surrounding it, as opposed to the rest of the public, which can not recreate there. The amount of such acreage at each particular camp was stipulated in the conservation easement, which prohibits public access to the bulk of the property until the year 2014.
Possibly not an issue for the Long Pond owners when the conservation easement was originally negotiated, the APA's interpretation of its hunting and fishing camp definition now looms large. Maintaining the APA's narrow definition of hunting and fishing camps and, more particularly, guaranteeing the primitive nature of wastewater treatment for these tiny camps on the giant properties became a matter of the commissioners' intense discussion.
APA Commissioner James T. Townsend, an athletic lawyer from Rochester who has climbed all 46 peaks of the Adirondacks, pointed out that even though the camps are allowed to expand to a maximum of 1,350 square feet, they still have to "come to us" for approval. Mr. Banta, the APA counsel, pointed out that the APA's jurisdiction is clear, according to their definition of a hunting and fishing camp. But Mr. Townsend said that he agreed, "As long as it relates to a cabin, but if we're using it to increase our jurisdiction, I have a problem."
Mr. Hoffman reinforced this, "We don't want to require a permit for something non-jurisdictional," adding that instead they "could say 25 percent" expansion would trigger APA jurisdiction.
APA Commissioner Deanne Rehm, who was formerly the elected supervisor of the town of Bolton on Lake George at the southeastern edge of the Adirondacks and was appointed as one of the local resident commissioners required by statute to make the agency more responsive to the local people, pursued the topic of wastewater disposal. She asked, "Are you implying that we might approve a conventional system? A conventional system doesn't make it a hunting and fishing cabin!"
Injecting some reason into the remarkable nitpicking, Deputy Director of Regulatory Programs Mark Sengenberger pointed out, "We'd have gray water systems associated with kitchen sinks." Mr. Townsend asked, "Gray water?" Mr. Sengenberger explained that gray water systems have the same elements as a combined system involving "black water." Townsend pressed on, "We're trying to make sure that these six cabins function as hunting and fishing cabins, and do not have combined systems."
Neither any APA commissioner, nor staff member at any level, nor the Local Government Review Board official voiced the opinion that a "combined system," or any other waste disposal system for a single camp on upwards of 2,000 to 3,000 acres of land could not possibly be imagined to have an environmental impact. However, before the final vote, they added a condition to the permit that the subdivision conform with the APA's hunting and fishing camp definition, which requires that sanitation be primitive.
None of the commissioners, including the two locally elected
officials, raised an objection or even a question about the provision
that 37 hunting and fishing cabins be eliminated. Nor did the
representative of the Local Government Review Board
None of them raised an objection or question as to why many of the cabins had to removed, since they fall under another Glenn Harris clause in the APA Act, which excludes from jurisdiction hunting and fishing cabins of 500 square feet or less.
None of them raised the question of whether the APA or DEC had required or prepared a review under the State Environmental Quality Review Act (SEQRA) of the economic and cultural aspects of the permit restrictions attached to the subdivision. How much trade would be lost in local business establishments? How much tax income would be lost to local government and school districts? How would the loss of this additional increment of the hunting and fishing culture affect the families involved and the local communities? SEQRA requires the study of cumulative impact. None of the officials asked to see a disciplined study the cumulative impact of state's restrictive land acquisitions, coupled with the new APA permit restrictions, in St. Lawrence County.
The APA commissioners were concerned about how the public trails in the subdivision would fit within the state unit management plans, but failed to express any concern about the local logging industry. The APA staff was quick to respond to the RCPA's complaint about a potential logging violation, but no one at the APA ever raised a question of whether the supposed goal of the conservation easement to preserve the timber industry while allowing public access was being met. No logging data to date were submitted with the application to demonstrate that a sustainable timber harvest was being maintained. Certainly, the application presented an opportunity for the APA officials at all levels to raise this issue, if they had any concern about protecting the local economy.
Neither any of the APA commissioners, nor the Local Government Review Board official, recalled the Twenty-first Century Commission recommendations. None queried the staff or the DEC designee about how the decision was reached to restrict the use of the property to only one camp on such large lots, each one of them well in excess of that commission's 2,000-acre recommendation. Why were only six primitive camps allowed on 30 square miles? The APA law, which the commissioners are charged with implementing, provides for the "needs of the park's permanent, seasonal and transient populations for growth and service areas, employment, and a strong economic base." The meeting deliberations would have provided an ideal point for discussion of the extreme conservation easement terms that the APA was tightening.
Apparently satisfied that they had covered every imaginable contingency where nature could be harmed or some legalistic "i" had not been dotted or "t" had not been crossed, the APA Commission unanimously approved the permit application with the two stipulations.
Long Term Trend
Through its permit power, the APA has played an important part in tying up the Long Pond tract, both by imposing redundancy to the conservation easement restrictions and by adding restrictions beyond those in the conservation easement. Like the conservation easement, the APA permit becomes an encumbrance filed in the county clerk's office, similarly to a deed and subject to a title search. The permit redundantly restricts the absolute number of lots in any subdivision of the Long Pond tract to six. The permit redundantly eliminates all but one hunting camp on each of the six lots, thereby eliminating 37 of the existing 43 camps, which were also slated for elimination under the conservation easement.
In addition, the APA permit prohibits utilities, and restricts the sanitary waste disposal to existing pit privies at the mere six camps allowed on the 18,896 acres. The conservation easement had not locked in the camps to permanently use outhouses. With small, on-site generators, it would be feasible to install flush toilets and septic systems, but the APA permit has arbitrarily prohibited this public health option. Also, in the permit, restrictions on cutting of vegetation are imposed. Furthermore, APA review of the permits required under the newly required forestry management plans could bring in more restrictions. (3)
More restrictions could be added in the future through the APA's rule-making process. The environmental lobbying groups and the APA would also like to see hunting camp occupancy strictly restricted to hunting season, so that incidental family enjoyment, for instance, is prohibited. This would further narrow the legal use of the camps beyond that allowed in the conservation easement. If this were to happen, the economic vitality of the property for timber production would be put in greater jeopardy because the important leaseholder payments to the property owner of real estate taxes and rent could be put in question, considering that leaseholders might find these payments too costly when the camps are off-limits to customary year-round family recreation.
By obtaining an APA permit, the Long Pond company has also unwittingly opened up a Pandora's box of dual enforcement agencies for the conservation easement. Prior to the APA permit, only the DEC had the power to enforce the easement. However, with the APA permit, the APA accrues the power to enforce key terms of the conservation easement. Where violations of permit conditions are unresolved, the APA has the power to refer enforcement to the state attorney general, the same agency that would serve the DEC.
By introducing the APA as dual enforcement agency for the conservation easement, flexibility to meet future conditions is lost. In contrast, the conservation easement provided for such flexibility by stating, "This easement may be amended by the parties thereto by mutual agreement in writing " But under the control of the APA permit, the property owner cannot amend the easement by agreement solely between the owner and DEC.
The Chain of Events
The Long Pond subdivision permit represents the denouement of an official state act, the acquisition of a conservation easement. The result is the continuing erosion of land ownership and the potential decline of the local economy in the Adirondack region, particularly St. Lawrence County, which prior to the days of the Twenty-first Century Commission was almost entirely privately owned.
An important ameliorating feature of the conservation easement is that it was carefully written to protect timber extraction rights conducted within a full range of lawful methods. As the years have passed, conservation easements have become more nature-oriented. Also, in recent years, the public is being allowed access, bringing pressures to bear against timber harvesting practices that interfere with their recreational pursuits. But the Long Pond easement focuses in a more practical way on timber extraction, for instance, specifically preserving the right to extract gravel to maintain existing roads and build new ones. The road-building right was an area of the APA commission's concern in September 2004. Another practical Long Pond easement provision is the right to exclude the public from roads when necessary for logging operations.
Conservation easement-restricted property, stripped of most if not all of its development rights, has little equity value to fulfill the need for funds. The cash flow from an easement transaction may have gone into the corporation general balance sheet and may be depleted by the time funds are needed in the future. The twists and turns of the economy will present new stresses on timber companies, perhaps pressuring them to sell low-value conservation easement lands. If, because of conservation easement and APA restrictions, private buyers do not appear, the risk grows that the title to these lands will fall entirely into the hands of New York State, inalterably dropping them into the "Forever Wild" preserve, where not one twig can be harvested commercially.
The denouement of the role of the APA Act in the future of this key Adirondack property is also powerfully apparent. The Horizon proposal was made public in 1972, a year after the Adirondack Museum published the recommendations of Gov. Nelson Rockefeller's Temporary Study Commission on the Adirondacks. The proposal was a perfectly timed "ogre," according to Franklin Graham, Jr., in his adulatory history of the Adirondack Park, published by the Audubon Society in 1978. "If there had been no Horizon, we would have had to invent one," an APA staff member said later, according to Graham. After the Legislature rushed the APA law through in 1972, the Horizon Corporation dropped its development plans. The dramatic decline in economic vision for the property was set in motion.
A hallmark of the environmental movement is hostility to private property ownership. The inability of a private owner to hold unto the remnants of the property title as a result of combined economic and preservation pressures would neatly fit the purposes of the preservationists who generate recommendations such as those of the extreme Commission on the Adirondacks in the Twenty-first Century and the earlier Temporary Study Commission. (4) In spite of all its radical features, the APA Act provided for a "sensibly balanced apportionment of land" between that for open space for the people of the state and that for the strong economic base for the local, seasonal, and transient population. Unless current land acquisition and restriction trends are reversed, the cloud of unbridled environmentalist power will continue to hang over the remaining large private Adirondack tracts.
(1) The requirement in the state's environmental conservation law that regulations be promulgated for conservation easements has never been implemented. In addition, as land title instruments, draft conservation easements are exempted by statute from the state's freedom of information law prior to the actual transaction. The instruments have thus been shielded from public review until after the fact.
(2) The six camps to remain are Birch Brook Club (existing camp #2), Cold Springs Club (camp #37), Brunner Hill Club (camp #3), Selleck's Lower Camp (camp #29), Blue Pond (camp # 19), and Granshue (camp #11)
(3) There are no regulations on forest management plans in the APA Act or rules.
The Temporary Study Commission's report includes a treatise on
the common law pitfalls of conservation easements. With New York
in the forefront, statutes similar to the Uniform Conservation
Easement Act are attempting to overcome the legal heritage that
would stand in the way of the enforcement of conservation easements.