Property Rights Foundation of America®


speech given to Seventh
Annual Conference, Property Rights Foundation of America, October 18, 2003
by Susan Allen
Adirondack Park Agency Reporter

Thank you, Carol, for inviting me to speak about "Scenic Byways." Carol and I come from similar New York City backgrounds, and have been personal friends since we met in the trenches fighting the Commission on the Adirondacks in the 21st Century back in 1989.

She and I have different work habits — I can never remember which one is "macro" and which is "micro" — I write a newsletter that covers a single state agency, the Adirondack Park Agency [APA] — I think that's "micro" — while she covers the APA and the entire U.S. and even the world. So I urge all of you, no matter where you live, to support her very hard work.

While my focus is on the Adirondacks, the subject of Scenic Byways applies to the whole U.S., so whenever I mention some local Adirondack agency or organization, please substitute it in your mind for its counterpart in your area — and believe me, there will be one! Carol's letter this summer really spelled out the problem in a nutshell — Scenic Byways is a tool "that the extreme environmentalists have so expertly, yet somewhat subtly, designed, to eliminate rural property rights," and I'm also anxious to hear from the Havraneks how their trails program fits into this whole scenario.

Most of the credit for this speech goes to a friend of mine and of Carol's, who's also been in the trenches with us all this time — Judy Ford from Clintonville in Clinton County. She had to turn down Carol's invitation to speak because she owns a small business and Saturday is the busy day for her. So I'm the pinch-hitter, and she gave me a lot of the material and documentation she had gathered over the years. She was also directly involved as a "victim" of Scenic Byways, as you'll hear about in this talk.

The great French writer Marcel Proust wrote about trying to discover the origins of a great river — he said, "You can search and search and still never find its source." Proust was talking about trying to reach back in time to seek out the roots of our ideas and beliefs and passions. But I like the quote for its literal sense — I've searched and searched for the source of Scenic Byways and I'm not at all sure I've found it. What I have found is a lot of underground pools and hidden springs and tiny little brooks that drain into the kind of "great river" that is the Scenic Byways program.

I am old enough to remember Lady Bird Johnson planting flowers along the roadsides, the "Keep America Beautiful" campaign, which led directly to the federal Highway Beautification Act in 1965. That law was mainly concerned with getting rid of big unsightly billboards. That's probably about the time that the non-profit organization "Scenic America" first came into being and it's still very much in existence today.

In the 1960's there was a big surge in outdoor recreation and tourism in general. The gas station maps and travel guides started to show scenic back roads in a different color or with a dotted line, for people who had the time to go off the beaten track and explore. State and local tourism departments started to get into the act, seeing some marketing potential for those tourist dollars. I had always assumed, probably like most of you, that these scenic markings were the products of the mapmakers and the tourism folks, Triple A and Mobil and the I Love NY campaign.

Carol suggested that I go over one specific Scenic Byway — the "Olympic Trail." This is a 170 mile series of secondary state highways that run from Keeseville on Lake Champlain, through Wilmington and Lake Placid, then out through the western Adirondacks to Watertown and Sackets Harbor on the St. Lawrence River in the Thousand Islands Region.

You might recall that Sackets Harbor was in the news this summer as the home of the racehorse Funny Cide, but apparently that part of the St. Lawrence was also where Olympic athletes trained for the 1976 Summer Olympics in Montreal. That seems like a bit of a stretch for an Olympics theme, but that's part of the irony of this whole Byway and a lot of other byways — only maybe 20 miles from Whiteface Mountain to Lake Placid really has anything to do with the Olympics. And an actual Olympic site, the bobsled and luge run at Mt. Van Hoevenberg, is off the Olympic Trail entirely, on sort of a spur called the Rt. 73 Scenic Byway, which I'll get to a little later.

Anyway, there's a private organization in Northern New York called the Adirondack North Country Association [ANCA]. It started in 1954 and is kind of a regional Chamber of Commerce/business/economic development organization covering 14 upstate counties. They used to produce information promoting the area, like museum guides, historic site maps, craft center guides, usually with funding from NYS Dept. of Economic Development or Dept. of Commerce, as it used to be called, and also got member item funds from the State Senate. Unlike most local Chambers with tiny budgets and run by volunteers, ANCA has always had a full-time paid staff and a real office.

Around the late 1970's or early 1980's, ANCA created a marketing device for what they called "theme trails." These aren't foot trails but are main roads, such as the "Dude Ranch Trail" in the Warrensburg-Lake George area, where there's a lot of horseback riding related businesses. ANCA apparently worked with the NYS Dept. of Transportation [DOT] to get signs put up with cowboy hats marking that route, and there were other symbols for the other roads, like the Olympic torch for the Olympic Trail. Their 1987 map calls them "New York State Highway Trails," and it says they're "part of the NYS Highway System established by the NYS Legislature to promote tourism." Apparently these official designations happened in 1984. This map highlights "historic, recreational, cultural, scenic and other sites of interest." The map was produced on DOT's base map and in partnership with the Adirondack Park Agency.

The next map that ANCA produced was dated 1992, they jobbed it out to Rand-McNally using NYS funds. This map calls the roads the "Scenic Auto Trail System." Both of these maps show a route from the Albany area to Lake Placid,called either the "Underground Railroad Trail" or simply "Lake George-Lake Placid Trail," but it was not officially designated. Later on, part of that road would become the Rt. 73 Scenic Byway.

In late 1991 Congress passed the federal Intermodal Surface Transportation Efficiency Act — called "ISTEA." It allowed 10% of the billions of dollars raised from gasoline taxes to be spent on projects for pedestrians and bicycles, such as trails; historic and archeological sites; historic highways, railway corridors and canals; beautification; removal of outdoor advertising; and acquisition of land and scenic easements. According to an article by Ann Corcoran, the founder of the Land Rights Letter, those kinds of projects would receive $3.5 billion over the next five years, nationwide.

Ann Corcoran did some searching herself and discovered that ISTEA originated with groups like Scenic America, Rails to Trails Conservancy and the National Trust for Historic Preservation lobbying for that share of the transportation pie. And shortly after ISTEA passed, the NYS Legislature passed into law the state Scenic Byways legislation, using ANCA's theme trails which were already packaged up and ready for this designation. Nearly all the NYS Byways are in the ANCA region. Terry Martino of ANCA recently said, "In 1992 the NYS Legislature bought into the whole idea and that was the change in term" from "trail" to "Scenic Byway." These roads then became eligible for federal Highway Administration funds through ISTEA.

Scenic Byways are designated by a state legislature after nomination by a state agency, local government or a private organization, like ANCA did with their "theme trails." State Scenic Byways can be bumped up to become federal Scenic Byways, again upon nomination by the state or locality or a private organization, and these can be further nominated as sort of a "super-Scenic Byway," called an "All American Road." This 1992 map shows the "Champlain Trail" that runs to the Canadian border, which has now become the "Lakes to Locks Passage" All-American Road, which I'll talk about a little later.

Going back to the "macro" to "micro" or vice versa, this U.S. map shows the network of National Scenic Byways and All American Roads. Then zooming in to the Olympic Trail, this guidebook shows the NYS Scenic Byways, then the North Country Scenic Byways, then this one that shows a portion of the Olympic Trail from Piercefield to Pitcairn in St. Lawrence County.

These are slick brochures showing beautifully photographed waterfalls, covered bridges, historic buildings, diners and farm markets, boats at sunset and wildlife. There's no photos of abandoned buildings or closed businesses, no mining or logging operations, certainly no junkyards or mobile home parks, nothing mundane like a school or any of the ordinary houses and businesses along these roads, just picturesque small towns and countryside and the things that tourists like.

These byways require something called a "Corridor Management Plan." The federal ISTEA law set up a 17-member "Scenic Byway Advisory Committee" to "develop standards for design review" in these corridor plans. This Advisory Committee consists of federal agencies, including the National Park Service and U.S. Forest Service, plus appointees from various interests, including environmental, recreational and historic organizations. The only overt commercial interest represented is the "outdoor advertising industry." I have the handbooks produced for the "Corridor Management Planning" purposes, telling how to organize Byway advocates and how to keep control of the public information process. Listed as contributors to these manuals are organizations like Scenic America and National Trust for Historic Preservation.

When people like Judy Ford or myself or Carol are criticized for objecting to these designations, the response is always that a Scenic Byway is non-regulatory. So what exactly is being "managed" in a "Corridor Management Plan"? As Judy says, "DOT already manages the roadway and the road right of way," so what would be left to "manage" except the houses and businesses and lands along the roads? The design manual lists six "intrinsic qualities" of a Scenic Byway: "scenic; natural; historical; cultural; archeological; and recreational." Note how the economic and even the transportation aspects of the roadway have disappeared. It stresses "viewshed" and views "as far as the eye can see." The operative word in Scenic Byways is "scenic."

On January 29, 1994, Judy Ford got a letter from the state DOT, informing her that her upholstery business sign was in violation of the Highway Beautification Act and the Scenic Byways legislation, though it was maybe 3'x5', hardly a "billboard." On May 29, 1996 an identical letter was sent to a Tupper Lake man, and he raised a big stink about it so a bunch of news articles came out. DOT relented in both cases, and this whole signage issue vanished, but as far as I know there has been no official resolution of this signage issue. Apparently, signs are an important aspect of Scenic Byways. Judy has been in contact with a lady in Illinois fighting a similar Byway plan. The local governments had all written letters in support of the designation, and all their letters contained virtually identical wording that "advertising signs will be controlled."

The sponsoring organizations of a byway are supposed to be "grassroots" community groups, but in reality it's controlled by big regional organizations like ANCA, state agencies or preservation groups. The Illinois Byway was nominated by the Great Rivers Land Preservation Assn., a land trust created in 1992. For the Olympic Trail, ANCA contracted out its duties to another organization called "Friends of the North Country" to hold the necessary public meetings to drum up support for the northeastern section, and ANCA contracted with Wildlife Conservation Society for a western segment.

For quite a few years there's been a "revolving door" between government natural resource agencies and preservationist groups. Another "great river" whose start I can't pinpoint — there's now a third element — planners and "consultants" hired to write grant applications and develop documents like these "Corridor Management Plans." It's become a huge industry, and they all get their cut of the federal planning money from ISTEA. After ISTEA expired in 1997, it was reauthorized as TEA-21, or "Transportation Equity Act," with more billions of dollars to be expended for the same kinds of scenic and recreational projects, for the next few years, and it's up for renewal at the end of this year.

I wish Judy were here to tell you how she worked on her local town board members and Supervisors, the County Legislature, newspaper reporters and editors to try and torpedo the Olympic Trail. I also credit Howard Aubin from an adjoining town, who did much the same thing. Both of them got opponents to come to government meetings and to the Byway information sessions, and they wrote letters to the papers. They've had really amazing success, and got four towns to pass resolutions in opposition to a Scenic Byway in their towns. But that success is precarious. Friends of the North Country recently prepared a draft "Corridor Management Plan," it acknowledges the resistance of the four towns and community opposition. It also acknowledges Judy Ford's run-in with DOT on her sign and calls it a "mistake." We have yet to see the final plan.

The federal ISTEA Advisory Committee was supposed to set up a procedure for "reviewing and terminating the designation" of a Scenic Byway. To my knowledge, this has been ignored. Our State Senator said in a recent news article that there would have to be legislation passed to do such a thing. At the last meeting of the APA, staff said the map and guidebook for the entire Olympic Trail is supposed to come out this month, so it remains to be seen whether those four towns are still listed in there.

Scenic Byway designations are very difficult to oppose on a personal level. They contain the things that local residents all like — historic buildings, farms and farm markets, parks and bike trails for kids, promotion for local B&B's and diners. A lot of our businesses do depend on tourists, and we like pretty little villages and we hate ugly huge billboards. And yes, we like scenery and scenic roads as much as anybody.

But the argument that there is no regulation involved is a dishonest one. This is a label put on a whole area, and no matter what they say, whoever it is that administers a Scenic Byway can't control how other local, state and federal agencies will invoke and exploit the Scenic Byways designations. And we don't know what any of these "Corridor Management Plans" contain or who is in charge of them.

The Olympic Trail draft "Corridor Management Plan" contains a statement that "ANCA worked with the APA for close to a year to secure a written statement from the APA stating that they had no interest in the Scenic Byway as a source of regulation." But I have personal knowledge of one APA project on the Rt. 22 Scenic Byway, now part of the Lakes to Locks Passage. The designee from the NYS Department of State asked whether the project would be visible from Rt. 22 because it is a designated "Scenic Byway." In that particular case, it would not be visible, but a clause was inserted in the permit to state that "no adverse visual or open space impacts will result to this 'scenic byway.'" The APA therefore has the ability and authority to use the "Scenic Byway" designation as a criteria in its project review, and we don't know what will happen to the next project that is in the "viewshed" of a Byway, if it hasn't happened already.

Agencies named in the Scenic Byways guidebooks as those that "protect the byway" might be the Army Corps of Engineers, U.S. Fish & Wildlife, FEMA, Bureau of Land Management, etc. etc., as well as other state agencies like the Dept. of Environmental Conservation [DEC] in NYS. And who do you complain to if you have a problem? The APA says it's a DOT program, DOT says it's an economic development program, the byway organizations say it's a tourism promotion program. And local zoning boards can be the worst. I know Carol works very hard to dispel the notion that "property rights" does not mean "my property rights and not yours." But you can bet that neighboring owners who object to some new development or activity, or some local historic preservation or recreation group, will not hesitate to invoke Scenic Byways to try and stop it in whatever way they can.

Going back briefly to the Lake George-Lake Placid Scenic Byway that never got designated, which is interesting as it goes alongside the magnificent and certainly scenic Lake George. But maybe it was a little too hot to handle with all the motels and other businesses already there. But it was the Adirondack Park Agency that nominated the 30-mile Rt. 73 segment from the Northway to Lake Placid, and it's the APA that's in charge of the "Corridor Management Plan." This Byway is a little different as it goes mostly through state land which has its own rules, but it does cut through my town of Keene, which got $500,000 in ISTEA and TEA-21 funds for tearing down a highway garage, rehabbing a historic house and improving a town park. None of this has anything to do with transportation, no permanent jobs are created and it's already used as a park and fairgrounds probably as much as it ever will. I have a friend who went to the APA's public meetings on Rt.73 Byway, people were mostly interested in more hiker parking on the state land, but the APA staff kept steering the discussion toward protecting views and wanting to get rid of the vendors who sell hot dogs, birdhouses and fresh vegetables along the roadsides. So much for the things that tourists like.

For the "Lakes to Locks Passage" All-American Road designation, going back to Messr. Proust's analogy, there was the equivalent of a lot of underground pools and springs and tiny little trickles that all came together to form that super-Scenic Byway. In late 1989-90 Adirondack residents were barraged with so many things going on at once: the 21st Century Commission, the Northern Forest Lands Council, the Champlain-Adirondack Biosphere Reserve, the Lake Champlain Management Conference and the NYS Open Space Plan. All of their reports contain bits and pieces of concepts like "greenways" or scenic roads and trails, and they all promote the same things as Scenic Byways: nature, history, recreation and scenery, with a grudging nod to "appropriate" economic uses like farms and forestry.

The Lake Champlain Management Conference, instead of going out of business like it was scheduled to in the mid-90's, instead morphed into the Lake Champlain Basin Program, with millions of dollars in funding from numerous federal and state agencies. In late 1999-2000, the Basin Program got together with historic preservation groups and the National Park Service, and they packaged all the elements up into a proposed "Lake Champlain Heritage Corridor," taking in multiple towns and counties from NYS, Vermont and Quebec. The National Park Service produced a draft plan based on four "themes": Native American history, military history of the Revolutionary War and War of 1812, a "Corridor of Commerce" and "Magnet for Tourism." Our little group rounded up our allies and attended their public meetings to voice our strong opposition. They were supposed to put out their final plan in late 2001, but the whole thing mysteriously disappeared.

Instead, in early 2002 the "Lakes to Locks Passage" was nominated as an All American Road and passed the NYS Legislature a few months later. It used exactly the same language on the four themes. It merges the Rt. 22 Scenic Byway and the Champlain Canal Scenic Byway and runs over 100 miles from just above Albany to the Canadian border. Judy Ford inquired at two different times as to who had nominated it — in February 2002 she was told it was an organization called "Partnership for Lakes to Locks Passage," and in June she was told it was the state DOT. Apparently though, the counties in NYS had all bought into it, coming out with a joint "Corridor Management Plan" in 2000.It's unclear who produced this report, I suspect it's the Lake Champlain Basin Program, with their paid staff and all their funding.

Recently we learned that the Lakes to Locks organization was incorporated, but we don't know who's on it or who's behind it. With private organizations like ANCA or Friends of the North Country, we're limited in what kind of information we can get, which is one of the great dangers of local governments palming off their duties to private groups and paid consultants. I just learned that this Lakes to Locks Passage, Inc. had a meeting last month with a Vermont organization, and there's now a new group of historical organizations forming in Clinton County, so maybe the Heritage Corridor is being resurrected, although they got pretty much all they wanted on the NYS side by getting the All American Road designation.

I just want to mention very briefly that Lakes to Locks' south end links up with the Hudson River going south, which has a bunch of designation programs, and to the west it's the Erie Canalway, which is also the "Mohawk Valley Heritage Corridor." It's a canal waterway, a towpath, a historic route, a trail, a bikeway, a National Heritage Area and the "Revolutionary Trail" Scenic Byway along the Mohawk River. It comes under the jurisdiction of the DOT, the Thruway Authority, the National Park Service, the Canal Recreationway and the Canal Corporation which owns reservoir lands in the Adirondack foothills and a private organization known as the Canalway Trails Association of NY. You can see how huge these programs are.

Marcel Proust's great river, and all the springs and pools and brooks that drain into it, are fed by rainfall and snow. Scenic Byways are fed by money. This is why they're so hard for local governments to oppose. They get funds for parks and bike trails and historic sites and signs for tourists, even though a lot of this money gets siphoned off to planners and consultants. These designation proposals are presented by well-dressed professionals as economic development tools and by upbeat young people who must get taught in planning school how to brush off any concerns. In fact, one of the towns which had signed a resolution opposing the Byway is now applying for Scenic Byway funds for a visitor center.

Those of us who oppose Byways come across like spoilsports, we sound bitter and paranoid. Newspaper reporters are skeptical of our viewpoints, and the promoters' views almost always get the last word in news stories. A few weeks ago, there was a depressing editorial in the Press-Republican, noting that despite local fears there have been no mandates or land acquisition, and nothing but good things have come of Scenic Byways and the "Lakes to Locks" designations, such as NYS showcasing the "Battle of Plattsburgh" celebration in its brochures. The Battle of Plattsburgh was a week-long event of re-enactments, ceremonies, historical lectures, period food, fireworks, music and games. It was started by a group of local volunteers to memorialize the War of 1812 soldiers and sailors, and it's been a growing and successful event over the past few years.

When you're asked what's wrong with Scenic Byways, and don't you agree that such and such a road is scenic, that's a trap question. You can't honestly say that it isn't scenic. But the way to answer it is with a very basic question of your own: "Why do we need it?" NYS and probably most states can produce all the brochures they want showcasing beautiful back roads, Battle of Plattsburgh events, bed and breakfasts, farmers markets and historic sites, the way they've always done in the past. They can also put funds into state historic agencies to maintain historic buildings, if that really is the intent. You certainly don't need hundreds of miles of an entire roadway with everything on it and everything you can see from it.

The I Love NY program put out one on the "Independence Trail" showing historic sites along the "Lakes to Locks" route, though it doesn't even mention the All American Road designation. Like the Olympic Trail with very few Olympic sites, the irony here is that there really isn't much to see along this route in the first place, aside from a few famous forts that have been advertised for years. Although with a non-profit organization running this thing, I'm a little leery that this "Independence Trail" might not stop right here with publication of this brochure.

TEA-21 will probably get renewed this year, since it's the kind of thing that's as popular with Congress as it is on the local level, we don't know what will be included in the new version. We still don't know what's in the Corridor Management Plans, or who is responsible for their "management." We don't know what accommodations that were made in the law to appease opponents will be changed in the future.

The truth is we don't know what the Scenic Byway designation means now and we certainly don't know what it will mean in the years to come. I haven't confirmed this quote, but I heard it attributed to the Spanish political philosopher Miguel de Unamuno: "An unused law is like a lurking loaded gun." Scenic Byways is one of those loaded guns. Although it's very hard to be a lone voice continually speaking in opposition, I still would urge you to educate yourself about these designation programs and speak out anyway. If you don't raise that lone voice, there will be no voice. Thank you.

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