Property Rights Foundation of America®

Reprinted from New York Property Rights Clearinghouse, Vol. 11, No. 2, Spring 2007

NYS DEC's New Open Space Conservation Plan Finalized
Unbridled Radical Preservation

When you consider that the original draft revised Open Space Conservation Plan published by the New York State Department of Environmental Conservation, with the Office of Parks, Recreation, and Historic Preservation, in November 2005 ran on to 412 pages plus nine appendices and that the final plan, ostensibly published in December 2006, was 424 pages long plus nine appendices, you have to be impressed with the temerity with which the department, known as DEC, pursues its evil goal of dismantling that part of the American system of private property ownership here in New York State. Of course, readers of this article may question me for even alluding to such a system in the State of New York, but a lot remains—ever vulnerable to the next sweep. And, I say, "ostensibly published" in December 2006, because it was nearly impossible to obtain copies until the spring of 2007. Even then, although David Winchell of DEC Region 5 personally promised over the telephone on March 19 to mail me a copy "next week" when additional copies were to arrive there at Ray Brook in the Adirondack hinterlands, I finally received my copy of the distasteful document on May 21, 2007 as a result of writing a formal Freedom of Information Law request to the newly appointed DEC Commissioner Alexander Grannis. The dates are important, because if you were to sue about the illegalities related to the plan, your time ran out 120 days after the supposed date of publication.

I haven't been able to digest every detail of the new plan, but have delved enough to make an evaluation, as well as to inadvertently find some of the more obnoxious illegalities and obscenities. The English language allows the use of "obscene" as synonymous with loathsome. The word is derived from the Latin obscaenus, meaning ill-boding, inauspicious, and repulsive.

In case there are readers who do not know that the State DEC publishes new plans for land acquisition and other landscape preservation goals, which the agency renamed the "Open Space Conservation Plan," rather than the statutory name, "Land Acquisition Plan," let me very briefly explain: When the Environmental Quality Bond Act was passed by the Legislature in 1990, the lawmakers also passed a parallel, lengthy bill that set up a formal system of rules for acquisition of real property for preservation, parks, and cultural and historical protection. One of the most important features of the law was a requirement that land acquisition plans be promulgated every three years in draft and final form. The first plan was to be drafted in January 1991 and submitted in final form to the governor, majority leader of the Senate and speaker of the Assembly in January 1992. DEC and the Office of Parks, Recreation and Historic Preservation (ORHPS) jointly produced the plan, in accordance with to the statute, and have updated the plan in 1995, 1998, 2002, and now in 2006 (a year late). For simplicity, I refer to the plan as DEC's, because the environmental department dominates the plan, including the financial aspects, with the scope of its landscape preservation.

One of the more interesting aspects of the plan is a chapter on resource inventories (the land inventory required by statute), listing all sorts of ways that land in New York is "protected," meaning owned in full or split title by the government or landscape preservation-oriented non-profits, or restricted from use by state and other government agencies to preserve mainly environmental "resources." The maps, discussions, and numerical inventories are quite extensive, unlike anything available when I originally used estimates of my own to publish an exposé of the many overlapping areas of regulatory landscape preservation and preservation-oriented government landownership in New York State in the article "The Return to the Stone Age of Government" in the first issue of PRFA's Positions on Property. This 1994 article was the first time this subject had been seriously explored from a private property philosophy in any venue and the first attempt to give an overall quantitative appraisal of the impact of a multiplicity of forms of government preservation-oriented landownership and control.

The government ownership categories and regulatory landscape preservation devices, as discussed in the new Open Space Conservation Plan are momentous. The State owns outright 4,327,000 acres of "open space" land in New York, plus 731,000 acres in partial title as conservation easements. Of the total, "3,000,000 acres"(1) are owned in fee simple in the Adirondack and Catskill Forest Preserves, with an additional 690,000 acres of State-owned conservation easements in the two forest preserves. Added together, the deeded open space lands and conservation easements owned by New York State come to 5,058,000 acres.

Not to be forgotten is the fact that much DEC data and many published statements can assumed to be half true, misleading, incomplete, or patently false unless proven correct. An example is the single most important figure to me personally in the Open Space Conservation Plan, the acreage of State-owned land in the Adirondack and Catskill Forest Preserves. The current (2006) plan, which describes vast areas acquired in fee simple as well as conservation easements just during the past three to four years by DEC, states that the two forest preserves contain 3,000,000 acres, but the earliest open space plan or draft that tabulates government land holdings, the draft open space plan from 1994, states in the table of government landholdings: "Adirondack & Catskill Forest Preserve 3,000,000 ac.," exactly the same entry as in the landholding table in the final 2006 plan. This was before there were significant conservation easement holdings. The first final plan, published in 1992 without a table of landholdings, states, "DEC manages nearly three million acres of forest preserve…," and goes on to give the acreages for the DEC Reforestation and Multiple Use Areas and the DEC Wildlife Management Areas, as in later summaries, which are in tabular form. There is no explanation for the fact that the reported acreage for the Adirondack and Catskill Forest Preserves has not increased. However, in the text of the current plan and the 2002 plan, the two forest preserve acreages are given separately, impossibly totaling in both the final 2002 and 2006 plans to 2,981,000 acres. This is a serious deficiency, considering that the plan to acquire additional land for the Adirondack Forest Preserve was the reason d'être for the entire system of Open Space Conservation Plans with their land inventories.

With the local and federal open space land added in, of the total 31,106,541 acres in New York, the combined total government-owned fee simple open space land in 2006 amounts to 4,729,500 acres, and with the conservation easements added in, the overall total of land under government ownership or conservation easements is 5,486,500 acres.

In addition to these deeded lands, the state and federal government have other resource protection devices, which are described in the summary of resource inventories in the Open Space Conservation Plan. The regulatory devices are powerful and extensive. Protected wetland is the only one of these regulatory methods that is inventoried with an estimated acreage, at 2,525,000 acres. Other regulatory tools to protect open space that are listed in the plan range from Wild, Scenic and Recreational Rivers, with 1,349 miles designated, to the Natural Heritage Program partnership between The Nature Conservancy and DEC to (secretly) locate and map rare species and significant habitats, for which no acreage is published. The plan points out that a new program in partnership with the National Audubon Society protects "Important Bird Areas and Bird Conservation Areas."

The plan has been expanded to emphasize the New York State Department of State, Division of Coastal Resources program to protect estuarine areas, which involves advanced GIS analysis (geographic information systems, or computerized overlay mapping) to meet federal funding requirements. Although affected acreage is not inventoried for the erosion hazard areas and designated habitats of coastal zones under this and other programs, the outlined state powers to protect dunes, bluffs, shoals, barrier islands, contiguous and associated saline and fresh waters, and also deal with non-point pollution, significant coastal fish and wildlife habitats, scenic areas, benthic habitats, and the like can obviously be used to stop new construction and maintenance, unless a major developer has the inexplicable ability to swiftly move a project through DEC even though it is planned in a sensitive estuarine area.

Among the many programs noted in the resource inventory, a short, sinister paragraph mentions the joint DEC/OPRHP collection of listings of archaeological sites, which is in the care of the State Museum and the two agencies. No mention is made of the fact that the listing is secret and is pulled out to delay and stop non-favored projects, and precipitate archaeological studies in the tens of thousands of dollars and many times that, if an artifact in the vicinity of the project site has for scholarship purposes, or stupidly or maliciously been reported to the DEC.

The plan also calls attention to the National Heritage Areas of the National Park Service and the State Heritage Areas as resources being inventoried, but does not explain how a multitude of federal and state agencies that distribute government largess and work together with regional and local government entities, as well as non-profits, tie up land in these regions so that only the elite can afford to buy, build and pay the taxes, thus driving out the indigenous residents.

As "partnerships" and ostensible sole proprietorships, non-government organizations figure prominently in the plan. The resource inventory notes that the Land Trust Alliance of New York , which serves 80 land trusts in the state, reports that these land trusts hold 185,000 acres of land through fee and conservation easements.

In addition to the inventory of resources, the three other most important aspects of the plan are the listings of lands that have been acquired, lands that are to be to be acquired, and the environmental impact analysis. In an article of this scope, it is impossible to analyze the acquisitions of the recent past and those contemplated. However, the reported acquisition of the 257,000 International Paper Company lands, nearly all of the company's property within the Adirondack Park, with 255,000 acres in conservation easements and 2,000 acres in fee simple, for the Adirondack Forest Preserve is one the most far-reaching of the many unnerving acquisitions reported.

The conservation easement acquisitions have provoked my comment over the years that the Environmental Conservation Law requires that the DEC promulgate regulations implementing its statutory power to acquire conservation easements. I think that this is the only one of the comments in my fifteen-page critique of the draft plan to which DEC has officially reacted. In the Environmental Impact Analysis appendix, a comment that reflects my criticism is recorded and the DEC response given:

"Comment: The following conservation easement reforms need to be made: establish a formal easement registry; standardize and ensure a public process for examining easement terms and public benefit; ensure easement negotiation and stewardship are not all recreation driven; and DEC must create regulations that implements (sic) section 49-0305 of the Environmental Conservation Law.

"Response: The State recognizes the tremendous growth in the use of conservation easements by the State, local governments, and conservation organizations. DEC is working on building a publicly accessibly registry of its conservation easements and developing a management monitoring system for future stewardship. Both agencies encourage the review of the processes that have developed over a period of time to see if improvements are warranted and staffing resources be directed at developing regulations to assist in the effective administration of conservation easements in NYS, as they have become a very important conservation tool." (p. E-28, emphasis added where my comment is taken into account)

However, the Environmental Conservation Law (ECL) does not give DEC an option of whether to develop regulations for conservation easements. It states:

"The department shall promulgate regulations establishing standards for conservation easements…" (ECL Sect. 49-035, par. 7, emphasis added)

The requirements in the law include that minimum terms be established and that standards and procedures be established to modify an easement held by a public body.

During 1999, Assemblyman Robert G. Prentiss made a formal inquiry with then-DEC Commissioner John P. Cahill regarding the status of regulations for conservation easements. In his reply, Mr. Cahill wrote:

"Pursuant to Section 49-0305 (7) of the Environmental Conservation Law (ECL), the Department drafted regulations establishing standards for the implementation of conservation easements. The environmental/land trust community strongly objected to the inflexible nature of the draft provisions applied to all such easements. Unfortunately, a consensus among all the interest groups was never reached and a final regulation has not been promulgated." (letter of John P. Cahill, October 28, 1999)

As a result of the DEC's arbitrary dismissal of its obligation to follow the law, there has never been an opportunity for public input into the terms of conservation easements. (The public is denied the opportunity to comment during the development of conservation easements for specific acquisitions because of a loophole exempting real property transactions in the state Open Government Law.)

The International Paper Co. (IP) acquisition was brokered by the Conservation Fund, the same land trust that brokered the 139,000-acre Champion International acquisition in 1998. The Open Space Conservation Plan does not report the specific, intense local government opposition to State acquisition of IP property in several northern towns. These local resolutions of opposition stem from the clause in the Environmental Protection Fund law that gives veto power to local municipalities over acquisitions within their towns. This right was asserted as part of the lawsuit organized by PRFA to stop the Champion International land acquisition in 1998. Before the lawsuit, the State ignored this statute, but, since then, it has toed the line. However, it has been trying to curry favor with the towns and sometimes has been driving hard bargains to eliminate local opposition. The plan reports in a general sense on the desire to eliminate the local veto power, and the fact that others are not favorably disposed to this suggestion.

A victory for hunters and the people of the North Country, which perhaps was influenced by the publicity connected with the lawsuit organized by PRFA to stop the Champion acquisition, is that most of the private hunting clubs will be allowed to remain on their leases on the International Paper Co. land. In addition, in a late 2006 reversal of state policy not mentioned in the open space plan, many of the hunting clubs that were slated for demolition on the Champion lands upon fifteen years from the acquisition will be allowed to remain.

If the Open Space Conservation Plan publicly had inventoried the State land acquisitions in the current plan and over the previous ones, by separating the Adirondack and Catskill Forest Preserve, and breaking down State holdings by county, it would be possible to analyze the impact of the acquisitions more precisely. Any analysis is presently hindered by the incompleteness and inaccuracy.

For instance, for the acquisition of the International Paper Co.'s 257,000 acres, assuming, most conservatively, the eradication of one development right for each 42.7 acres in accordance with the most restrictive zoning under the Adirondack Park law, a total of 6,018 principle dwelling permits would be eradicated. If half of such dwellings were to be occupied by seasonal residents and half by local families averaging three people per dwelling, these eradicated permit rights would have allowed for 9,027 new residents to live in the Adirondacks over the years. With rezoning for expanded and new hamlets desperately needed to allow local people to stay in the region in the face of the pressure on land prices caused by the artificial scarcity caused by state land acquisition, onerous zoning, and people seeking to retire or build second homes, it would be possible to maintain the open land in acreages beyond human ability to comprehend and enjoy, while accommodating the lost development rights that result from the State acquisitions. Considering that, when the Adirondack Park Agency Act went into effect, according to the preamble, approximately forty percent of the six million acres, or 2,400,000 acres, of the Adirondack Park was State-owned, and that currently almost fifty percent is State-owned, with conservation easements additionally eliminating thousands more development rights on top of that, the Open Space Conservation Plan should have provided data and economic analysis to justify restoring lost development rights to the remaining private land. (2)

This is the massive failure of the Open Space Conservation Plan to meet the requirements of statute — to abide by the State Environmental Quality Review Act, which requires analysis of economic, cultural and social impact of State action.

As I pointed out in my almost entirely unreported formal comment about the draft plan, the prohibition against segmenting a project was not met because the State failed to declare its ultimate land acquisition goal for all of the state, much less for the Adirondacks, where many hard-hit jurisdictions have lost half and even far more than that proportion of the land to State ownership. By law, the DEC should be doing at least a rudimentary analysis along the lines above of each acquisition and the lost development potential. The DEC should do an honest tax impact analysis, and an analysis of the pressure on the accessibility of land for dwellings for ordinary people working in the region. There should be an analysis on the effect of State land acquisition on the potential job base. And, the environmental analysis in the plan should include a factual report of heartrending school closings and population decline in the Adirondack counties. Some of the saddest reports that I have ever seen in newspapers are about towns facing up to their dying schools because no more children are growing up locally.

In December 2004, the Hamilton County News reported on the school at Raquette Lake:

"What happens if a school has no pupils?

"With only three students in grades K-6 and no new ones expected in the foreseeable future, that is the question facing Raquette Lake Union Free School Board of Education."

In an article headlined "School sends off last students" in June 2005, the Hamilton County News reported that Raquette Lake Union Free School Districts' three elementary students were "moving from the known to the unknown," according to Superintendent John Simons. The paper stated that after the "Moving Up Ceremony" for the last class, the children would be attending Indian Lake Central School. However, the Indian Lake school itself has a small student body, graduating only ten students that year, at a cost of $24,288 per student.(3)

The 2006 Open Space Conservation Plan contains a 38-page summary of comments that were made during the draft stage. The comments are converted, sanitized, and restated generically, but some worthwhile information is contained. One of the most important was,

"Comment: Why does the State encourage property to leave the private sector, where not only revenues are lost from real estate taxes, but other tax revenues inherent to the private, productive ownership of land are lost as well?

"Response: Much of the State's Open Space Conservation Program is focused on improving the ability of private landowners to continue their stewardship of their land. For example, the majority of the State's conservation easements have been large working forests conservation easements, which keep productive forest lands in private ownership and on the local tax roles, while the public gains new recreation rights and property protected in perpetuity from subdivision and development. Similarly, the State's Farmland Protection Program provides funding to farmers to retain their lands in productive farming.

"When the State does acquire lands in fee for open space protection purposes, it often helps to improve property values of neighboring private properties. Further, when businesses and individuals are making decisions about where to locate, an important consideration is the quality of life, which is enhanced through open space protection programs." (p. E-3, emphasis added)

This callous handling of a concerned comment embodies the viewpoint of those who view landscape preservation as a tool to provide for the elite to resettle or maintain vacation homes in rural areas. Certainly, property values increase when less property is available for sale, whether the land taken out of the market by the State was acquired in fee simple or as conservation easement. In fact, the property values rise out of reach of the ordinary people who have historically lived in the area. Certainly, relatively well-to-do people are drawn to an area for the quality of life of being surrounded by open space, but these people have already made their place financially and are in direct contrast to the ordinary people of the region who actually must earn a living in that region. It is a class situation, with the power class being facilitated by the DEC at the expense of the ordinary people

But the plan is built on fraud upon fraud. For instance, in a discussion of mitigation measures to minimize environmental impact, the appropriate unit management plans (UMPs) for the Adirondack and Catskill Park are briefly mentioned. The plan observes, "UMPs are subject to individual SEQR [State Environmental Quality Review Act] review; therefore, an environmental impact assessment of proposed activities on State lands is guaranteed through the UMP process." (p. 416) However, the SEQRA process for the UMPs is devoid of economic, cultural and social analysis of the impact of the plans on local communities, and dismissive of local historical sites beloved by the people.

The "generic environmental impact statement" has no disciplined quantitative analysis of negative economic impacts, only a single, vague, qualitative reference.

"The forest industry may also be adversely impacted through the loss of productive timber producing land and associated forest products." (p. 410, emphasis added)

Early in the Open Space Conservation Plan is a blatant lie about the popularity of the plan with the population of the State of New York:

"By 1990, it was evident that the people of New York State expected their state government to define land and water conservation needs and the means and strategies for meeting those needs much more clearly if they were to maintain their support for land conservation. The first Open Space Conservation Plan was completed in 1992 in response to that challenge. Legislation passed in 1990 required:

"Creation of a state land acquisition plan to guide further state land conservation efforts…"
(p. 3, emphasis added)

The fact is that the passage of the companion bill to the Environmental Quality Bond Act was not the result of any public mandate. The opposite was the case. The bill establishing the Land Acquisition Plan, as it was called, was unknown except to the specialists in the legislature and environmental lobbying organizations. Because of the provision related to indebtedness in the State Constitution, the bond act required a referendum, and it was during the intense controversy related to the referendum over a measure that was meant to fund the elimination of most private land in the Adirondack region, that some of us learned about the passage of the legislation describing how the moneys under the bond act were to be ultimately spent. With the defeat of the bond act in the statewide referendum, the companion bill with its provisions to manage and promote land acquisition remained, as a powerful tool for DEC when subsequent legislation for multi-purpose environmental bonding and ongoing funding with "something for everyone," as the cliché goes, was passed during ensuing years.

The Open Space Conservation Plan concept was discredited by the vote of the people at the beginning, when the bond act was defeated. There was no public input in the framing of the legislation and, to this day, public input that would discipline the open space land acquisition process and reflect that outpouring of opposition from northern rural people in 1990— which is illustrative of the anxiety lasting to this day—is rarely recorded and, even then, dismissed. As reflected in the plan, DEC's agenda is its own, an expression of that of the radical environmental preservationists with whom the agency is intertwined.

- Carol W. LaGrasse, May 2007

Notes:
(1) See Table 2 for analysis of the "3,000,000 acre" figure.

(2) The DEC Region 5 Regional Advisory Committee has shown an interest in lost development rights, as recorded in a comment summary, where the idea of "banking" lost development rights was opposed:
"Comment: Concerned with Region 5 RAC's idea that development rights extinguished during sales of land or easements be 'banked' and transferred to communities for use. It would be more appropriate to work with communities to revitalize downtown Hamlet areas.
"Response: The Region 5 RAC developed this principle to begin discussions that might lead to the identification of means and tools that could provide local governments and residents in the Adirondack Park more opportunity to provide housing and economic growth, while continuing to protect the open space of the region." (p. E-12)

(3) David Gabrielsen, Letter to the Editor, Hamilton County News, March 29, 2005, p. 4.

 

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