Property Rights Foundation of America®

from the Third Annual New York State Conference on Private Property Rights
January 17, 1998, Albany, New York

Effects of Local Ordinances on Forestry
Gregory M. De Sylva
Consulting Forester, Rhinebeck

I got involved with forestry environmental matters when there was a lot of enthusiastic youth in the late 60's to early 70's in the environmental movement. So I thought I'd combine my forestry training with environmental science in Yale School for Environmental Studies.

They were doing extensive studies on clear-cutting at that time and environmental impacts of it. There was very interesting research in experimental forestry.

As you all know, the big cry then was "clear-cutting." That was going to result in depletion of the forests and ruining of the land. I got on that bandwagon to a considerable extent, too.

After I graduated, I spent five years in the Corps of Engineers and the Environmental Protection Agency in environmental impact analysis. For various reasons, I had enough of that after about five years, and, for reasons I couldn't really go into right now, went into forestry consulting. At any rate, to make a long story short, most of my business is harvesting timber. It's all selective timber harvesting in the property in southeastern New York and western Connecticut where I do business.

But, lo and behold, I've found that selective timber harvesting is a subject with considerable attack by environmentalists. I still consider myself to be one, an environmentalist, very much so. In our area, you don't sell timber and you're not successful unless you can do very high quality work on the property. A large amount of our business, I feel, is that they solicit me because they want to see that the work is done correctly, the environment, their property is protected, not damaged, left with messy littered roads, scarred up trees, hung up trees and so forth. So we hold bonds on jobs and insure that the work is done correctly.

We've been given hell, so to speak, in the form of local ordinances which have been proliferating in the Hudson Valley and other parts of New York State, but especially in the Hudson Valley. This has been going on since I began the business in 1980, but it seems like in recent years it's become much more prevalent. It's really been burgeoning in the last five years, forcing me and some others in the area into getting a bit more organized and more actively involved. We formed a committee on timber harvesting regulations, most of which are in the form of these local ordinances.

Permits To Do Logging
Basically they say that you have to get a permit to do logging in the specific town. Quite a number of towns in the Hudson Valley have these now and many other ordinances are being considered by other towns. We had to get more involved because ordinances such as the Town of Rosendale and the Town of Esopus come in that make it so difficult to get a permit that basically they will kill any logging and timber sales. So in the past we haven't been involved enough. We have to get involved in the process of these being developed now, to see that some of the most outrageous restrictions don't come into being.

I'd like to get right into some of the problems that are created by the local logging permit process. They often specify very lengthy, intricate, and highly expensive application process, to jump a lot of fences to get your permit. It can take months; it can take years even in some cases. The fees for the applications can be considerable. They can be set by the ordinance anywhere from a few hundred dollars to a thousand dollars, or it can be specified that the town board or the approval agency can specify whatever fee they think is appropriate, which makes you nervous in trying to price out a job. I should mention that this is my business as a consultant, because typically what I do is to sell timber for the landowners. I mark the timber, put it out to bid, to about 25 or 30 timber buyers. So I don't log or harvest timber at all. Basically, I sell timber and oversee the work.

Excessive Bonding
Very often the towns will typically specify that they want to hold a performance bond on this work being done on private property. These bonds can be considerable. The Town of Esopus specified a $7,500 irrevocable letter of credit made out to the town from the timber buyer or the land owner, to insure that the work is done according to the permit conditions.

The Town of Phillipstown in Putnam County, is considering an ordinance. They have proposed an ordinance now which specifies that the bond shall be no less than $200 per acre. So, if you have 200 acres, you'd have to put up a $40,000 bond. No timber buyer is going to do this.

They have no assurance, they don't know what they're going to run into down the line. If the town isn't satisfied, they may hold onto that bond indefinitely. Of course they don't get any interest on it. The town could utilize that any way they chose to rectify conditions that in their view are unacceptable.

The Town of East Fishkill, which has a proposed ordinance right now, would have the logger do whatever the town decides is appropriate. By comparison, a bond on one of my typical timber sales of $1,000 to $4,000 is more than adequate to rectify any unacceptable conditions such as tree tops that aren't cut down and lopped according to specifications.

DEC-Approved Loggers
The towns often require that only DEC-approved loggers, timber harvesters, be utilized. Examples are the Towns of Esopus, Rosendale or East Fishkill, the first two in Ulster County, the other in Dutchess County.

DEC maintains a list. They call them cooperating timber harvesters, who basically are individuals who agree to comply with DEC environmental specifications in harvesting timber and permit inspections by DEC foresters to see if they comply with these regulations. However, the problem with this is that among the many qualified operators, contractors, timber buyers, harvesters, pulp buyers, on my list that I've put together over the years, there are many qualified loggers who are not on that DEC list for one reason or another. They may just not want the regulations or red tape that are involved and having to go to meetings and so forth.

So it limits competition. It irritates me because there are certain people in certain towns that they are telling me I can't send the timber out to bid to, can't accept bids from. Basically, it would be pointless because they couldn't cut the job.

Furthermore, unethical parties can very easily get on the DEC list, and people looking at the DEC list assume that this is a "Good Housekeeping stamp of approval." But the DEC doesn't screen these people for their business practices and whether they've had judgements taken against them for timber trespass cases and so forth. I know of one individual who has repeatedly had timber trespass judgements taken against him who is on that list right now. A landowner utilizing that list could be burned very badly. But if you mention it to DEC, it's just, they don't care, they're not going to check that out. They like to promote their own program.

No Cut Zones
Let's take the restrictions which are perhaps the most significant, those on the location of the logging activities. The effects are similar to what can and cannot be done within boundary line limitations and professional requirements. For instance, the location of the loading area for logs where the truck comes and picks them up can't be within 200 ft. of water bodies. This is a restriction in the Town of Pawling and in the Town of Phillipstown's proposed regs.

In the Town of Esopus you can't cut any trees within 50 ft. from any property lines or 75 ft. from any roads. The Rosendale ordinance specifies no cutting within 50 ft. of the property lines nor within 150 ft. of any residence. You can imagine what that means. Many areas of forest tracts are highly developed and forest tracts are bounded by subdivisions. In the Town of Wawayanda in Orange County reputedly there was no cutting on one job allowed within 250 ft. of the boundary. Imagine what that would do to you if you had a property 300 ft. wide.

Other Problems
The town demands to see the written contract between the landowner and the timber buyer. The town requires large indemnification of themselves, liability insurance and Workman's Comp certificate covering the town even though the work is being done on private property. There are many other problems but we'll limit it to this.

Department of Environmental Conservation
So where does the DEC stand in this? DEC, with their expertise in forestry and timbering, they're sometimes helpful. The town will often come to the DEC requesting advice when they're formulating an ordinance. They're sometimes helpful and help them tone down some of their stuff, but they also push their own standards, and some of their own standards are highly unreasonable. For instance, the restriction of no logging areas within 200 feet of waterbodies is a DEC standard; it comes out of their Best Management Practices. They like to see that implemented, so they advise towns to utilize that. DEC doesn't want any logging roads within 100 feet of any streams, ponds, wetlands or lakes. So that's another standard that they try to get implemented into local ordinances. They also push their approved loggers list.

Economic Impact
So what's the effect of this? In one town, the Town of Esopus, we wanted to test this. It's just south if Kingston. The Town of Esopus has a very restrictive ordinance. I initiated a timber sale there in August 1996. Now, the timber still hasn't been cut. I put considerable time and effort into it, as you can imagine. Pertinent restrictions there include the $7,500 bond, you could only use the DEC list of approved loggers, no cutting within 50 feet of boundary lines or 75 feet of roadlines, centerlines, and the Town wanted a $2 million landowner indemnification and Workman's Comp coverage. All these are above and beyond any restrictions I normally put on the bid for the contract.

What I did, was I put it out to bid with these town restrictions and without them, two options. Option 1 included all the above restrictions; Option 2 did not include the restrictions. The bid results? We only got two bids, which was distressing. I usually get six to ten bids on a particular job and this was nice timber. Option 1, we got one bid of $20,020; that's the one with town restrictions. Option 2, which didn't include any restrictions, we got only two bids. The high bid was $28,500. So the net effect was that the town restrictions hurt this landowner by at least $8,480. That's the difference between the bid without the town restrictions and the bid with the town restrictions. I say, "at least," because we got an unusually low number of bids. A number of potential bidders told me that they didn't bid on the job because it just all sounded too complicated and they just didn't want to get involved with any town that had that type of restrictions.

What's happened as a result of this? We applied for a permit, actually, to go with the high bid of $28,500 without the town restrictions, and we tried to show in our permit application why we could do a good job and why we could hold the bond, and why the cutting restrictions do not work, are not important, and so forth. Naturally, the permit was denied. We actually did this as a test, because we were considering a lawsuit at that time that this was a "taking" in the amount of $8,480. Unfortunately, our lawyer told us that because it would be partial taking, we probably would lose. If we had gotten no bids whatsoever on this job under the town option, in other words, with the town restrictions, it would have been considered a complete taking, for $28,500. We would have had a case.

Whether this is good legal advice or not is debatable. Carol has provided me with information to show that perhaps a partial taking is a good grounds for a successful lawsuit. But, at any rate, we have gone down the road of trying to negotiate with the Town. The Town has become concerned. For some reason, they can't figure out why there isn't any logging taking place in town, why nobody's come in for permits. They see the restrictions and they walk away. And it seems to me that there's some degree of concern with that. There are some landowning members of the town hierarchy who are concerned.

So we're trying to work with the Town to modify the law, to eliminate some of these restrictions. But we're up against the Conservation Advisory Committee, the Environmental Council in that town. We tried to work with them and found that most of the modifications that we would like to see are not acceptable to them. They apparently do want to eliminate the Town holding the $7,500 bond. So that's a step in the right direction. But they're holding firm on all boundary line buffer zones. They're going to modify those possibly, but it's been a long process. The buffer zones and no-cut zones are the real stickler, because that can involve a considerable portion of the landowner's timber. It doesn't seem to matter to them that we would follow good practices in terms of top lobbing, selective cutting, possibly lighter cutting around the borders. They seem to be quite adamant on this.

So, in conclusion, what we have here is basically a piecemeal battle for survival.

As more and more of these ordinances come in, we just try to fight them like brushfires and involve considerable numbers of our agents and considerable amount of our time. We feel that we need to get more statutory reining in of the towns and the DEC. Frankly, I don't know where that's going to come from. There's a Right to Practice Forestry Act, that the ESFPA, the Empire State Forest Products Association, is pushing. That's proposed by the Association of Towns. It goes back and forth.

Thank you for your time.

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