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Plan Is Based on Unjust Treatment of Rural New Yorkers & Violation of Environmental Law


Holiday Comment Period Allowed Little Public Input

By Carol W. LaGrasse, February 2006

It's déjà vu all over again. Late in 2005, the Department of Environmental Conservation (DEC) released its new Draft Open Space Conservation Plan for New York State.

This time, are the elements of the plan legal? Not if the land acquisition law and environmental review act are still part of the law of New York. Is the plan just? Not if you consider that whole geographical regions of the state are under DEC's economic assault by attacking the private land base.

Is the plan governmentally responsible? Not if you realize that the plan's land acquisition parameters are so broad that the real intentions are disguised and that the plan sets the stage for accrediting almost any property to be acquired by New York State. And not if you take into account the insider relationship of the private land trusts with DEC in creating the plan.

Is the plan geared to the wellbeing and future of New York State? Certainly not, in view of the negative impact that the plan would have on private land ownership, the reduced availability of homes for purchase by moderate and low income families, and the preoccupation with the acquisition and restoration of rural land to wilderness to the detriment of urban parks and practical recreation opportunities for all New Yorkers.

Many other fundamental faults exist with the 412-page plan, which continues on to nine appendices. The sheer size of the plan makes it inaccessible to the citizen. Does the plan respond to the intense criticism leveled at earlier plans, such as the draft 2001 plan? Only if you consider that the new draft plan intensifies the aspects that received the most criticism.

In fifteen pages of negative written comment submitted by this writer, it was only possible to hit on a limited number of aspects of the plan. Another commentator, Susan Allen, the publisher of the Adirondack Park Agency Reporter, submitted five small-print pages of critical questions. Other important criticisms from the point of view of a small number of the citizens who will be affected were received at hearings. Because the plan was released during the holidays and comment was due during January, the general public was unaware of the plan. The DEC denied a request to extend the comment deadline until the end of February. It seemed that DEC deliberately made the comment period difficult for the average citizen.

Many rural areas of New York will be negatively affected by the plan where it is implemented, but the Adirondack region is again slated to be the worst hit area of the state. Even so, the commissioners of the Adirondack Park Agency seemed unaware of the existence of the plan at their January meeting. Municipal officials throughout the state are generally unaware of the plan and its contents, including the aspects to potentially affect their local communities.

The plan has an Orwellian title, the "Draft New York State Open Space Conservation Plan - 2005." By law, the DEC is to propose a "State land acquisition" plan, clear and simple. The DEC "open space" plan, as DEC has called it for a number of years, is a mixture of land acquisition recommendations, confusingly and vaguely defined; nature preservation goals, such as new protection for what are said to be endangered species; and lists and descriptions of varying degrees of clarity of numerous land protection regions and methodologies ranging from various types of heritage areas to Scenic Byways.

The Land Trusts

Susan Allen, who publishes the Adirondack Park Agency Reporter, commented, "The latest version of the 'New York State Open Space Plan' should be re-titled 'Land Trust Plan for New York State,' for it is those so-called 'non-profit charitable organizations' that hold absolute domination over this document, even more so than in previous versions. It is incomprehensible to me that active members of land trusts can be allowed to serve on [DEC] Open Space Committees, and I would like to know why this is not considered highly unethical."

She pointed out the land trust "partnerships" that DEC touted in the open space plan that the agency feels exemplify its land preservation success. The "list of so-called 'successes' shows the massive role the land trusts have been playing in this process. The 'partnerships' with these organizations have resulted in the following acquisitions: Region 1: Jamesport Parks and Preserve, Shinnecock Bay Sanctuary, Shadmoor, Central Pine Barrens and Foxlair-Yaphank; Region 2: Soundview and Mt. Loretto; Region 3: Fahnstock Park, Great Swamp, Shawangunk Ridge and Lundy Estate; Regions 3-4: Overlook Mountain, Hudson River shoreline, Taxter Ridge, New York City watershed lands and Harvey Mountain; Region 4: Albany Pine Bush and Tivoli Preserve; Region 5: Lake Champlain shoreline, Tahawus, Lake George shoreline, Domtar and Moreau Lake; Region 5-6: International Paper and Champion; Region 6: Moose River and Rome Sand Plains; Region 6-7: Lake Ontario shoreline and Fish Creek; Region 7: Carpenter's Falls; Region 7-8: Montezuma wetlands; Region 8: Braddock Bay and Honeoye Lake; Region 8-9: Genesee Valley Greenway; Region 9: Alder Bottom, Chautauqua Lake and Woodlawn Beach."

"Please provide details on the profits these land trusts have made on each of the above transactions, including all fees and payments for their salaries," she requested.

For the Champion acquisition, a 139,000-acre fee simple and conservation easement transaction that is only a single word in the above summary, the attorneys for the individuals who sued to stop the acquisition, where the State dictated the destruction of 298 hunting camps on the property, reported that the land trust pocketed $5 million in the course of flipping the tract to the State.

The Open Space Plan - A Creation of State Environmental Conservation Law

Section 49-0205 of the land acquisition section that was added to the Environmental Conservation Law in 1990 requires that the DEC prepare an inventory of "open space, forest land and park land owned by federal, state and local governmental entities" and seven other categories of protected lands, such as state-protected wetlands. These inventories are to be made available to the DEC regional land acquisition advisory committees, also created by the 1990 law, which are now referred to as open space committees, and to the general public. These inventories are one of the major features of the 1990 law and were to be included in the land acquisition (open space) plan.

Several pages of discussion about the inventory categories are included in the open space plan. Acreage totals in each category are included. However, the all-important category of land owned by the State and other government units and by the State as conservation easements is not broken down geographically, except that the category for the Adirondack and Catskill Forest Preserve is noted to be "3,000,000" acres. It is impossible to know from the open space plan how much State-owned land exists in each county and town.

The 1990 law requires that the DEC prepare a land acquisition plan, which, to repeat, DEC has been referring to as the open space conservation plan. The idea behind a published land acquisition plan was to bring the selection of land for acquisition out from behind closed doors for public scrutiny. DEC actually had been keeping top-secret maps to plan land acquisition with its land trust cohorts and the federal government. The 1990 law requires that, "Such plan shall include consideration of the inventory prepared pursuant to section 49-0205 of this title and shall identify those areas within the state which are not adequately protected in such categories."

But, since the so-called inventory is only a total of all State-owned lands in each category, it is impossible for the reader to evaluate which geographical areas, such as counties and towns, "are not adequately protected in such categories."

Not only does DEC fail to produce inventories within the required categories of protected lands, DEC publishes a very different document than a land acquisition plan. The open space conservation plan is a mish-mash of land descriptions that are numbing in their sheer magnitude and often involve such open-ended descriptions that it is impossible to know exactly what is intended. In addition to the inadequate descriptions of land acquisition areas, the open space plan includes a dizzying array of other categories of land preservation devices and concepts, some geographically specific, some regionally vague, and some of no particular geographic bounds. These include, for instance, the three-million acre, fifteen-county "Finger Lakes Legacy Area"; a new "Coastal and Estuarine Program" area that covers two-thirds of the state; "Quality Communities"; "corridors" and "linear systems"; "National Heritage Areas"; "Natural Heritage Areas"; "Heritage Corridors"; "Heritage Trails"; an entire new section on "Bird Conservation Areas" that may impact millions of acres of private land; "management plans" for "Greenways" on Long Island and Lake Champlain; the "Unit Management Plans" (which have routinely called for elimination of town highways and cultural landmarks); and many poorly defined specific regional preservation areas.

The State Environmental Quality Review Act

Any government action in New York must abide by State Environmental Quality Review Act (SEQRA), and cannot lawfully be "segmented" so that the revelation of the current stage of the project fails to disclose the full extent intended. In the open space plan, DEC violates SEQRA by failing to concisely define the magnitude of the State's acquisition goals. From a review of the plan, it is impossible to know the ultimate scope of acquisitions planned in any locality, region, or throughout the state as a whole.

According to the open space plan, the State of New York owns 4, 284,000 acres of land outright, of which 3,966,000 are owned by DEC, and which includes 3,000,000 acres attributed to the Adirondack and Catskill Forest Preserves. (Other acreages are rounded to the nearest thousand acres, but the total for the two preserves to the nearest million.) The plan reveals that the DEC owns "690,000-plus" acres of conservation easements. Therefore, almost 5,000,000 acres are owned by the State either outright or as conservation easements.

DEC is continuing to fail to divulge the acreage it will ultimately protect to complete the land acquisition plan. However, accompanying the plan is a the November 2005 letter signed by the commissioners of DEC and the Office of Parks, Recreation and Historic Preservation, and the deputy secretary of State announcing that "more than 923,000 acres of land identified in the Plan have been conserved during the last several years." This figure may represent State land acquisition in fee simple and conservation easements since the Pataki Administration began. Within the body of the plan, it is pronounced that, "Since 1960, state lands administered by DEC increased from 2,500,000 acres to more than 4,000,000 acres."

It is impossible to ascertain whether this phenomenal rate of acquisition in fee simple and conservation easements is an aberration or whether the State intends that there will be a general acceleration of its acquisition of private land. But, considering the additional programs involving land acquisition that are featured in the plan, such as, to cite just one example, a proposal seeking U.S. Department of Agriculture funding for forest preservation under a new Finger Lakes Forest Legacy Area extending over fifteen counties and 3,000,000 acres, the conclusion that this acceleration is continuing is unavoidable.

What is the ultimate extent of the lands that the DEC and its sister land trusts and environmental organizations plan to remove from private ownership? What is the time-frame for this ultimate plan?

How will these acquisition acres, whether in fee simple or conservation easements, be distributed among the categories of protected land? Where are the charts and digital maps of each county and town showing numerically and in planar view all existing State-owned fee simple and conservation easement land, and other government-owned land, and the lands that the State intends to acquire to complete the currently unrevealed, ultimate State land acquisition plan? Where is the complete social, cultural and economic impact analysis, county by county, town by town, of the acquisitions in fee simple and conservation easements that are contemplated in the current unclear plan and ultimately contemplated in each local political subdivision?

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