Weak law hurts shorelines

 

 

 

 

 

 

 

 

 

 

 

 

Critics say political compromises in the 1970s have led to a degradation of waterfront and water quality in the Adirondacks.

By Brian Mann

On a gray, rain-swept morning, environmental activist Peter Bauer points to the Lake George shoreline just outside the hamlet of Bolton Landing. From his boat we can see gleaming Gatsbyesque mansions rising above the lake one after another, divided by narrow strips of manicured forest. Lawns, paved patios, and seawalls stretch to the water.

Four decades after the Adirondack Park Agency was created and charged with overseeing development on private land, there is almost no natural vegetation left to provide wildlife habitat or absorb the lawn fertilizer, engine oil, and other pollution washed downhill by the rain.

“You see fewer trees than there would have been forty years ago, a hardening of the shoreline with seawalls, more grass lawn. The five-hundred-square-foot camp that was used in the summer is now a ten-thousand-square-foot mansion, built on a small lot as close to the water as they can get it,” said Bauer, who recently left the Fund for Lake George to become executive director of Protect the Adirondacks.

The building of vacation homes in the Adirondack Park has produced a rise in prosperity, creating construction jobs and funneling millions of dollars in property taxes each year to remote mountain villages. But critics say far too much development has occurred on fragile shorelines, largely because APA zoning regulations crafted in 1973 were inadequate to protect them.

“Even as the Park Agency Act was heralded as this major accomplishment, it had flaws,” Bauer said. “Unfortunately one of those flaws had to do with water-quality protection. And those flaws have festered. What’s more, the rest of the world has innovated, moved on, progressed when it comes to water-quality controls, and a lot of that has not been put into practice here in the Adirondacks.”

It wasn’t supposed to work like this. The APA’s website gives a sort of mission statement for its regional zoning rules, known as the Adirondack Park Land Use and Development Plan, saying the regulations are meant to “channel growth into the areas where it can best be supported and to minimize the spread of development in areas less suited to sustain such growth.”

Scientists generally agree that the places in the Park least suited to intense development are shorelines. “For one thing, it’s rare,” said Curt Stager, a professor of natural resources at Paul Smith’s College. “Waterfront only occurs where two habitats meet. They’re fragile places.”

Stager also noted that waterfront development has a dramatic impact on the scenery. In wooded backcountry, large homes can be hidden or screened. “If you build your house in the woods, no one knows it’s even there,” he said. “But if you build it on the shore, it’s like a billboard. You’re advertising your presence to everyone boating, fishing, or sailing.”

Despite the fragility of shorelines, the APA land-use plan, approved by the state legislature in 1973, created setbacks of only fifty to seventy-five feet for most waterfront development. Moreover, critics say the legislature failed to mandate enforceable restrictions on tree and shrub cutting that would have reduced the visual impact of homes.

“I think the largest single vulnerability to the Adirondack Park in the long term is shorelines,” said former APA Chairman Curt Stiles, who stepped down in 2011 after leading a partially successful effort to strengthen the regulations.  “Weakness in the existing rules exacerbates the problem, and we’ve only nibbled at the edges [in terms of reform].”

The numbers are telling. The vast majority of private land in the Park is zoned Resource Management or Rural Use. Developers can build up to fifteen homes per square mile on RM lands and seventy-five homes per square mile on RU lands. That works out to average lot sizes of 42.7 acres and 8.5 acres, respectively. In contrast, most Adirondack shorelines are zoned Low Intensity or Moderate Intensity, classifications that permit average lot sizes of 3.2 acres and 1.2 acres, respectively.

But special rules developed for shorelines actually allow even more development in Low and Moderate Intensity areas, with minimum lot sizes roughly half the size required for building parcels away from the waterfront. Stager said this is the opposite of what most scientists would recommend.

“You definitely want more protection for shorelines,” he said, “and there are a bunch of ecological reasons why”—to reduce storm-water runoff and siltation, for example.

Because the leglslature limited the agency’s jurisdiction over shorelines, local governments have control over the vast majority of waterfront development. But many towns lack the staff, the expertise, or the interest to protect shorelines. Indeed, many communities lack planning and zoning boards and haven’t adopted detailed development codes.

“I think there was an idea that capable local governments would see the self-interest in keeping water bodies clean,” said John Banta, a former senior planner and senior attorney for the APA, who retired last winter. “But I think money has spoken loudly. The compulsion not to say no to big money is very tough for local and state officials to resist.”

Banta described the environmental impact of shoreline development on many lakes as “very significant” and added that the amount of tree and vegetation cutting allowed along shorelines is “shocking.” He noted that even massive waterfront homes often avoid APA oversight. “It’s a question of jurisdiction,” he said. “Often the decision to do the right thing is left up to the homeowner and the developer.”

The weaknesses in shoreline protections can be traced to political horse-trading that took place during the drafting of the land-use plan and its accompanying zoning map. Even before the second-home boom of the 1990s and 2000s, waterfront real estate was far more valuable than backcountry parcels. George Davis, who was deputy director of the APA in 1973, recalls intense pressure to relax the proposed regulations to allow more development.

Even before the zoning plan and map were presented to the legislature, the minimum lot width for many waterfront lots was cut from 200 to 150 feet. “There was a lot of nervousness among the lawyers. I lost that particular battle,” Davis said. “We came up with a map that I was still pretty happy with. We compromised a bit on shorelines, but it was still quite good.”

Then pro-development and local-government groups lobbied to loosen setback and lot-width rules even further. Republicans in the Assembly, then the majority party, forced Governor Nelson Rockefeller to compromise again. The zoning maps were changed repeatedly, placing more shorelines in areas classified as Low Intensity or Moderate Intensity. In some cases, long strips of shoreline were included in Hamlet areas, where the APA has almost no oversight. The minimum lot width in Moderate Intensity zones was reduced to just one hundred feet, allowing builders to put houses on “piano key” lots along lakeshores. In Hamlet zones, lots need be only fifty feet wide.

Peter S. Paine Jr., a Willsboro attorney who helped write the land-use plan, recalls how the shoreline rules were watered down. “I know exactly how it happened because I was there,” he said “There were negotiations in smoke-filled rooms in the small hours of the morning. I told them, ‘This thing has already been compromised enough,’ and they threw me out of the room. And then they proceeded to further weaken it.”

Andrew Halloran, who took part in the negotiations as aide for State Senator Ronald Stafford, has a very different perspective. He regards the shoreline compromises as a rare victory for the Park’s economy and property rights. “Someone who owned a few hundred feet on a lake, you were basically ruined financially if you had your development rights taken away,” he said.

Halloran argues that environmentalists’ concerns about shoreline vulnerability were overblown from the start. “They have concerns about everything, about travel corridors, about backcountry, about shorelines. That’s all there is,” he said.

That view is shared by real-estate developers in the Park who have turned waterfront sales into a multibillion-dollar industry. “Development has not been over the top. We are certainly not bothered by the development that has happened here,” said Rollie Gallo, who retired after selling vacation homes for decades in the Schroon Lake region. “We feel that the quality of life is very good.”

APA Chairwoman Lani Ulrich, shares the view that the existing regulations are working well, arguing that “shorelines and water quality are definitely much better off because of the APA Act.” Ulrich acknowledged, however, that the APA does not have jurisdiction over all shoreline projects.

During our boat tour of Lake George, Bauer pointed out stretches of waterfront where massive new homes are wedged into narrow lots. In a new trend, upland slopes are being dynamited away to create room for even more mansions. Yet the impacts of shoreline development are not only aesthetic. Scientists say lakes have seen a measurable erosion of water quality, a trend that appears to be accelerating.

“Lake George is the classic example,” said Stager, the Paul Smith’s professor. “If you go to certain parts of it you can already see the water-quality decline that is almost certainly due to shoreline development slowly eating away at the clarity of the water.”

Stager said unchecked shoreline development is compounded by other, relatively new environmental pressures that weren’t on the radar screen in the 1970s, such as global warming, invasive species, and storm-water runoff. “If a lake is already being stressed [by other factors], what might otherwise be a relatively small nudge amounts to a large push,” he observed.

Bauer said another fault in the land-use plan is that it lacks a mechanism for measuring and controlling the cumulative impact of development. The APA does not keep track of how many homes have been built on shores or upland watershed of a given lake. They also don’t consider other environmental pressures. “Even if they have a lake with declining water quality, [state officials can’t ask] ‘Will this be the straw that breaks the camel’s back?’ That’s a failure of the regulatory structure,” he said.

Indeed, observers say the science and policy of shoreline protection in the United States has changed greatly since the 1970s. States like New Hampshire, Maine, and Washington—and even some communities in the North Country—have adopted waterfront rules far more sophisticated than those administered by the APA.

The town of Queensbury, for example, which includes part of the southern Lake George watershed, has implemented tough storm-water codes to prevent new construction projects and new homes from adding to the runoff reaching the lake. Developers are required to prove that projects will not “lead to a diminution of water quality, an increase in erosion or an increase in stormwater runoff from the site either during or following development.”

Efforts have been made over the years to reform the state’s own shoreline rules for the Park. In the 1980s, runoff—some of it from new development—triggered algae blooms on Lake George, Upper Saranac Lake, and Little Wolf Pond. Spurred partly by those concerns, Governor Mario Cuomo created the Commission on the Adirondacks in the Twenty-First Century to assess the overall effectiveness of the APA Act and propose changes.

The final report contained what amounted to a sweeping indictment of existing shoreline regulations. It recommended designating as “critical environmental areas” all land within 660 feet of shorelines and called for increasing lot sizes and setbacks within these areas. Furthermore, it proposed a yearlong moratorium on development so stricter regulations could be adopted.

These and other recommendations were fiercely opposed by local-government and pro-development leaders, who worried that stricter regulations would derail an accelerating real-estate boom. The Cuomo administration backed off; it eventually proposed a modest tightening of restrictions for undeveloped waterfront, but the plan died in the legislature.

Banta, who joined the APA in 1979, said the failures of the Cuomo commission left him doubtful that major changes in the Land Use and Development Plan are possible. “It would be a fundamental re-engineering of the Park Agency,” he remarked. “I do have regrets, but I’m not sure that I see any other path than the one we were on after 1973.”

When Stiles was APA chairman, he managed to push through regulations in 2008 and 2010 that place some limits on the expansion of old cabins that were built prior to the adoption of the Land Use and Development Plan. Before those reforms, small cabins could be rebuilt as mega-mansions with only cursory environmental reviews. The new rules also restrict the size and design of new boathouses.

But Stiles concedes that those changes were relatively minor and the agency is still left with few tools to enforce the regulations. “There’s no enforcement force out looking for violations, and the Park is so vast,” he said. “As the state cuts back resources, those things get cut just like anything else. I think we were as aggressive as we could be in pursuing and trying to remediate shoreline problems.”

Stiles pointed out that the legislature has not given the APA enforcement powers, so any fines or legal action must be pursued through the state attorney general’s office, a process he describes as unwieldy.

Asked if significant reforms are possible, Stiles answers cautiously: “I think it’s feasible if you can coalesce people who think protecting the environment is important. The problem is that there are people who see the beauty of the Park, but they don’t see the fragility of it.”

There is a bright spot. Although regulations haven’t changed, many shorelines have been protected by large land-conservation deals. Over the past two decades, the state has preserved about nine hundred thousand acres in the Adirondacks, through either additions to the Forest Preserve or conservation easements that prohibit development. As a result, hundreds of miles of shoreline on lakes, ponds, and rivers will remain unspoiled.

Banta said those land deals should be taken into account in any assessment of the Park’s success in protecting waterfront. “I think you have to think about the Park as a very large place that is already 50 percent Forest Preserve. Many water bodies already have extraordinary protections,” he said.

But without stricter regulations, Banta and others say development will continue to erode shoreline integrity and water quality—a conclusion that finds support in a report on the website of the state’s Lake George Park Commission. The report declares that runoff from development “has been extensively studied and found to contain grease, oil, lead, suspended soils, chlorides, plant nutrients and fecal coliform bacteria” and warns that deltas of sediment “have formed with alarming speed at stream mouths and storm sewer outfalls.”

Scientists have also confirmed the existence of an expanding “dead zone” in the southern end of Lake George, where pollution has so diminished the oxygen supply that native fish can no longer thrive.

Stager said crisis events—dead zones, algae blooms, the loss of wetlands and other habitat—are inevitable as more and bigger homes are built. “It will continue,” he said. “We don’t even know all the impacts that we can get from these developments. You have sewage and fertilizer and habitat loss, but there are others too, like the impact of increased motorboat traffic, that don’t have a firm scientific basis yet.”

Environmentalists offer a number of suggestions for reforming the APA Act:

■ Require that houses be better screened from view.

■ Increase the distance of shoreline setbacks and lot widths.

■ Limit the portion of a parcel that can be cleared of vegetation and covered by impermeable surfaces.

■ Restrict the amount of storm water allowed to run into nearby waterways.

■ Toughen restrictions on development along rivers and streams, which have become more desirable to developers as available lakefront grows scarce.

■ Give the APA the authority and capacity to find and punish lawbreakers.

Paine, who has developed shoreline properties in Willsboro and Chesterfield, said such rules wouldn’t stop development, only reshape it. “I’ve seen in my own experience what can be done if things are done properly. We imposed very stringent rules on ourselves, no building within 250 feet of the shore, no cutting within 125 feet. You can paddle on our lake today and not be conscious of the fact that there are nine houses around it, and our water quality remains very good,” he said.

It appears unlikely that the administration of Governor Andrew Cuomo will tackle a major reform of the APA Act anytime soon. Asked about strategies for improving water quality, Ulrich made no mention of regulatory changes or legislative action in Albany.

For his part, Bauer said he expects the question of new waterfront regulation to remain a flashpoint for the next decade, especially if new environmental problems arise. He worries that state officials won’t push for change until it’s too late.

“The Park Agency can’t really lift their heads out of the foxhole long enough to do the kind of research and policy work that’s needed,” he said, noting that the APA still faces the same political pressure that weakened shoreline rules four decades ago. “The bottom line is that local communities are still hostile to anything they think will further restrict development.” ■

Is upland development marring the beauty of the Adirondack Park? See the next installment in our APA series.