The future of open space

The future of open space

Environmentalists and local leaders agree that the
privately owned backcountry should be protected—but how?

By Phil BROWN

Forty years have passed since Governor Nelson Rockefeller, while signing a law regulating development in the Adirondack Park, declared to the reporters and conservationists in the room, “The Adirondacks are preserved forever.”

He had some reason for optimism. The Adirondack Park Land Use and Development Plan represented a leap forward in conservation, a bold attempt to preserve the beauty and wild character of a vast region that encompasses both public and private lands.

Four decades later, preservationists question whether the law has the teeth or the state has the will to provide the lasting protection the governor promised.

Written by the fledgling Adirondack Park Agency (APA), the plan established zoning classifications, building densities, and allowable uses for private lands. It was based on the research of Rockefeller’s Temporary Study Commission on the Future of the Adirondacks, the same panel that a few years earlier had recommended creation of the Park Agency.

Some observers considered the private-land plan flawed from the get-go. Willsboro lawyer Peter S. Paine Jr., one of the plan’s authors, said compromises had to be made to win the support of state legislators. Most notoriously, shoreline regulations were loosened four times, allowing far more waterfront development than planners thought wise.

“It was unfortunate in some respects and realistic in some respects,” Paine said of the wheeling and dealing in Albany. “We got it through.”

But the Adirondacks were far from saved. And so two decades later, another governor, Mario Cuomo, appointed another commission to try to save them again.

In 1990, the Commission on the Adirondacks in the Twenty-First Century issued a report containing 245 recommendations for preserving the Park’s wild lands, revitalizing its communities, and streamlining its administration. But the document met such fierce resistance from local officials and residents that Cuomo essentially disowned it.

“Nine out of ten houses are built outside hamlets. That’s unsustainable.”-John Sheehan, Adirondack Council

The Rockefeller and Cuomo commissions shared many concerns, but perhaps chief among them was that the privately owned backcountry would be divided into lots and sold for residential development. This remains a fear today, especially after the APA’s decision in 2012 to approve the massive Adirondack Club and Resort (ACR), a mix of condos, town houses, single-family homes, and rustic lodges to be built on timberlands in Tupper Lake.

Bob Glennon, a former executive director of the APA, contends that the ACR decision opens the door for residential development throughout the Adirondack backcountry, especially lands classified as Resource Management. “These most remote, most fragile, most biologically rich of the private lands are of the Park’s very essence. We have a Park Agency which simply doesn’t get it. Unless and until it does, all these critical lands are at risk,” said Glennon, who now serves on the board of Protect the Adirondacks, which is suing the APA over the resort proposal. (As of this printing the lawsuit has not been resolved.)

Backers of the project challenge the notion that similar resorts will pop up all over the Park. They argue that the ACR site is unusually suited for a year-round resort in that it includes a downhill ski area, borders a golf course, and has access to a big lake and major river. “The ACR project is unique,” said Brian Towers, president of the Adirondack Association of Towns and Villages. “You’re not going to see one of these in every community by any stretch of the imagination.”

Whatever happens in Tupper, two basic questions remain about the privately owned backcountry: Is it adequately protected by the Land Use and Development Plan? Is the APA administering the plan in a way that will protect the backcountry?

All told, private landowners hold title to about 3.2 million acres, about 55 percent of the entire Park. Most of this land, about 2.5 million acres, is classified as “open space”—forests, fields, floodplains, large wetlands. Together with the Forest Preserve, these lands lend the Park its wild character, and so protecting them is seen as crucial to the Park’s future.

The Land Use and Development Plan assigns the open-space lands to the two most restrictive zoning categories: Rural Use and Resource Management. Both RU and RM lands are largely forested. Taken as a whole, Resource Management encompasses the most ecologically important private lands: vast road-less tracts in the wilder parts of the Park, often abutting major parcels of state-owned Forest Preserve. Rural Use lands are found in more-settled parts of the Park, such as the Champlain Valley, and are more likely to be divided by roads.

According to the land-use plan, the primary uses of Resource Management include forestry, agriculture, and outdoor recreation. Single-family homes are listed as a secondary use. The primary uses of Rural Use are mostly the same, but they also include single-family homes. Multi-family homes are listed as a secondary use in Rural Use. By and large, commercial and industrial enterprises are not allowed in either classification. Thus, when environmentalists warn about threats to the backcountry, they are speaking mostly of residential development.

Under the land-use plan’s density guidelines, property owners can build up to seventy-five homes per square mile on Rural Use lands, which works out to an average of one residence every 8.5 acres. On Resource Management, they can build only fifteen homes per square mile, or on average one every 42.7 acres. Such lots might seem huge in comparison with residential lots in cities and suburbs, but under a full build-out, the zoning densities would allow developers to construct well over a hundred thousand homes in the backcountry—a scenario that environmentalists say would undermine the Park’s wildness and ecological integrity.

PROTECTION WATERED DOWN

George Davis, who served the Rockefeller commission as an ecologist, wishes the APA had prohibited all residential development on Resource Management land to keep the forest intact for the benefit of wildlife and the logging industry. Peter Paine, however, said those who wrote and negotiated the land-use plan never would have gone so far.

“I don’t think you can do an outright ban without running into constitutional issues,” Paine said. Landowners, he noted, could sue on the ground that the ban amounted to an illegal “taking” of their property rights.

In the draft of the land-use plan, the APA recommended allowing only ten houses per square mile on Resource Management, or one every sixty-four acres. “In negotiations with the governor and legislature, this was watered down to fifteen per square mile, or one every forty-three acres,” Davis said. “Rockefeller needed to make compromises to get votes in the Assembly.” He added that the Rural Use guidelines also were relaxed, though not as much.

Paine said the preliminary zoning map also was altered after meetings with town leaders, resulting in greater zoning densities in many places. “It had a lot more Resource Management than the current map, and it had more Rural Use,” he said.

Eventually, Davis tried to strengthen backcountry protections when he became executive director of the Commission on the Adirondacks in the Twenty-First Century. In its report, the panel set forth an Open Space Protection Plan that called for adding, over time, nearly 655,000 acres to the Forest Preserve and for protecting the remaining privately owned backcountry through conservation easements, stricter zoning, and a scheme for steering development closer to hamlets. The panel also proposed a one-year moratorium on all development on Resource Management and Rural Use lands.

“The number of structures currently allowed in resource management and rural use areas, estimated at 156,000, must be drastically reduced,” the report declared.

Under Davis’s plan, owners of Rural Use and Resource Management lands would be allowed to build only one principal structure for every two thousand acres. In return for lost development rights, they would receive transferrable development rights, or TDRs, that could be sold to the state or to owners of property in areas with less-restrictive zoning (those classified as Moderate Intensity and Low Intensity). The number of structures that could be built in the backcountry would indeed be drastically reduced from 156,000—to somewhere between ten thousand and fifteen thousand.

Opponents said the TDR scheme was too complicated to work and attacked it as “two-thousand-acre zoning.” Among other things, they questioned the fairness of transferring development rights (and thus economic opportunities) from one part of the Park to another. Paine thinks the critics had a point. “George has enormous vision, but he has no sense of political realities,” he said.

A LACK OF DATA

The failure of the Cuomo commission to get its agenda enacted means the protections for Rural Use and Resource Management have stayed essentially unchanged since 1973, when the Land Use and Development Plan was adopted. It’s difficult to gauge how well the protections have worked because the Adirondack Park Agency does not keep a tally of homes built on these lands.

Privately owned lands classified as Resource Management and Rural Use, the green and yellow lands in the map at right, comprise 2.5 million acres and account for much of the Park’s wild character. The brown lands in the map below are private lands protected by conservation easements. A comparison of the two maps reveals that the vast majority of the easement tracts are classified as Resource Management, the most ecologically important of the private lands. MAPS COURTESY OF APA

Nevertheless, some information is available. In 1990, there were about fourteen thousand principal structures on Rural Use or Resource Management lands, according to the report of the Cuomo commission. In 1993, John Banta, then the APA’s director of planning, analyzed residential growth and found that over the previous five years more than six thousand new homes were built in the Park. Of these, roughly 30 percent were built in the backcountry: 1,366 in Rural Use and 555 in Resource Management. That works out to about 380 homes a year in the backcountry (although RU and RM data were not available for Warren County). Banta’s report says the overall pace of development was about 20 percent higher than average in those five years. If this is true of backcountry development too, then the average number of homes built in the backcountry each year from 1973 to 1992 would have been about 320.

In 2001, the Residents’ Committee to Protect the Adirondacks issued Growth in the Adirondack Park, which analyzed development in the ten years after the Cuomo commission. It found that 820 to 850 structures were added to the Park each year—a slower pace of development than Banta had reported. The RCPA did not break down the figures by zoning classification. If, as in Banta’s analysis, 30 percent of the development occurred in RU and RM areas, then 250 structures a year were built in the backcountry.

Based on these two reports, it appears that, on average, 250 to 320 homes were added to RU and RM lands each year since 1973. Assuming the pace of development has not changed, 9,750 to 12,480 homes have been constructed in the backcountry since the adoption of the Land Use and Development Plan.

Is this a lot or a little? Here’s one way to look at it: since the Cuomo commission, up to seven thousand homes have been built in the backcountry—roughly half of the total that would have been allowed by the panel’s Open Space Protection Plan. In another two decades, the commission’s proposed limit likely will be surpassed. But here’s another way to look at the numbers: at this rate of development, the theoretical full build-out under the existing regulations will not occur for four centuries.

Actually, the build-out scenario would not be quite as bad as the Cuomo commission feared. Since 1990, the largest timberlands in the Park—those once owned by International Paper, Champion International, Domtar, and Finch, Pruyn—have all been sold to the state or protected by conservation easements that prohibit subdivision and development. As a result of these and other land deals, the state has purchased 104,000 acres for the Forest Preserve and protected another 717,000 acres by easements—virtually all in RU and RM areas. (The figures do not include easements held by land trusts and other private organizations.)

How many building rights were extinguished by these land deals? It’s impossible to say, since the APA does not keep track of this information. Judging by a map of easement lands, however, the vast majority of the acres preserved were in RM areas. If, say, 80 percent of the acreage was classified RM and the rest was RU, then almost thirty-five thousand building rights have been retired. In addition, the state has plans to purchase sixty-five thousand acres of former Finch, Pruyn land and fourteen thousand acres surrounding Follensby Pond—retiring another 1,850 or so building rights.

Based on these calculations, roughly 112,000 building rights remain on Rural Use and Resource Management lands—still far more than the Cuomo commission wanted to allow. George Davis warns that if nothing is done, the wild character of the backcountry will be eroded over time. “People in the future will never have known the wilderness we enjoy now,” he said.

How likely is a full build-out? Roger Dziengeleski, a vice president of Finch Paper, says owners of large tracts of timberlands are unlikely to sell their lands for development. To do so, he points out, would flood the real-estate market with forestland parcels and lower their value.

Colin Beier, an ecologist at the New York State College of Environmental Science and Forestry, thinks the scenario is something of a straw man, given that the region is losing population. “Could it happen? Anything could happen,” he said. “But are we trending in that direction? It seems like we’re trending in the opposite direction.”

If build-out were to happen, though, the forest and wildlife habitat would be changed forever. “Is the Park going to turn into North Jersey? Probably not. But you will have impacts, and these impacts will be discernible,” Beier said.

Ecological impacts could occur well before full build-out, especially if development is not done right, according to Michale Glennon, a biologist with the Wildlife Conservation Society. Yet neither she nor Beier could say how much land needs to be protected to ensure the survival of all the wildlife and plant species in the Park. “I don’t know if anyone can answer that question,” Glennon remarked.

Glennon (who is the daughter of Bob Glennon) is one of the few scientists to study how backcountry development affects wildlife in the Adirondacks. She said it’s not only the presence of houses that alters habitat—it’s also the roads and driveways, the lawns, the lights, the noise, the traffic, even the owners’ pets. Her research on birds suggests that development forces out woodland specialists and attracts generalists such as blue jays that thrive around humans.

Development also affects reptiles and amphibians. Glennon said roads act as barriers for migrating turtles, salamanders, and frogs. It also fragments the habitat of wide-ranging mammals. If the backcountry is fragmented, she said, the Park will be less hospitable to animals that many conservationists want to see restored—the Canada lynx, wolf, and mountain lion.

Glennon said the backcountry would be better protected if the APA required developers to cluster homes rather than spread them throughout the landscape. “If we get to full build-out, without question our biological communities will change,” she said. “If done well with minimal road development, the impacts would be much less.”

Development in the backcountry also has aesthetic impacts. People are drawn to the Park for its natural beauty, whether enjoyed from a mountaintop or behind a windshield. If the scenery is mucked up, environmentalists say, the tourism industry will suffer. Sometimes it takes only one house, plopped in the middle of a vista or on a ridge, to spoil a postcard view. More often, though, development creeps along roadsides, marring otherwise green corridors.

In 1980, just seven years after adoption of the land-use plan, an APA task force called roadside sprawl “certainly the greatest danger facing the open space character of the Adirondack Park.” The panel noted that 960 miles of roads—or 44 percent of the Park’s total—ran through Rural Use or Resource Management lands. In contrast, only 11 percent was bordered by Forest Preserve and thus protected from development.

Twenty years later, sprawl remained a major concern of Growth in the Adirondack Park, the report by the Residents’ Committee. Indeed, it concluded that the two fundamental weaknesses of the APA Act are the laxity of the shoreline regulations and the inability to control roadside development.

By and large, the report said, the land-use plan was achieving its goal of channeling development away from the backcountry. But all was not rosy. “While new development is lighter in Resource Management Areas, it is occurring throughout Rural Use Areas, especially along roadsides,” it said. (Evidently, people are more apt to build on an 8.5-acre lot than on a 42.7-acre lot.) The Residents’ Committee called on the APA to establish a clustering policy for RU and RM lands and develop guidelines for making sprawl less visible.

John Sheehan, spokesman for the Adirondack Council, said sprawl is still a big problem. “Nine out of ten houses are built outside hamlets. That’s unsustainable,” Sheehan said. “Not all of that occurred on RM and RU, but a great deal of that land has been impacted by this.”

Over time, he warned, development along existing roads will spoil the scenery and construction of new roads will fragment the forest. “Even low-density development in the Park’s wildest places causes permanent harm,” he said. “Just placing the houses farther apart doesn’t mean you’re protecting wildlife. … You can say the space in between the houses is still forest, but it is forest that is hemmed in by roads, with the coming and going of motorized traffic.”

“We need to keep the working forests working.” —Fred Monroe, Local Government Review Board

Like other environmental activists, Sheehan would like to see more protections for the privately owned backcountry. The Adirondack Council is not pushing specific solutions, but it wants to start a dialogue with local governments. Historically, local officials have opposed stricter land regulations, but they may have a common interest with environmentalists in seeing timberlands conserved for forestry, an important part of the region’s economy.

“We feel strongly that we need to keep the working forests working,” remarked Fred Monroe, executive director of the Adirondack Park Local Government Review Board, which monitors and advises the APA.

Brian Towers of the Adirondack Association of Towns and Villages agrees. “If they’re working forests, I’d rather see them remain as working forests,” he said.

In most cases, they said, local governments would support the purchase of conservation easements to protect logging lands. Timberland owners benefit from easements in two ways: they get a one-time infusion of cash for selling their development rights and they thereafter pay lower taxes since they no longer own those rights. (Local governments do not lose tax revenue because the state makes up the difference.)

Monroe and Towers also favor the use of transferrable development rights to steer growth away from timberlands. “TDRs are going to be part of the conversation on how we protect the backcountry,” Towers said.

This might seem surprising since Monroe and other local officials opposed the TDR scheme proposed by the Cuomo commission. Under the commission’s plan, which was never adopted, owners of backcountry lands would be able to sell TDRs to owners of land in more settled areas anywhere in the Park. Thus, a landowner in St. Lawrence County, in the northern Adirondacks, could sell development rights to a landowner in Warren County, in the southern Adirondacks. Under this scenario, Monroe said, Warren County would benefit at St. Lawrence County’s expense.

“What we objected to at the time was not the concept itself, but the fact that it was Park-wide,” Monroe said.

SENATOR BACKS TRDs

In 2012, state Senator Betty Little, who represents most of the Park, introduced a bill that would authorize TDRs to be bought and sold, but only within a given town. Under this proposal, the number of development rights in each town would not change. Monroe and Towers supported the bill, asserting it would conserve timberlands and allow more growth near hamlets. “Many of the hamlets are pretty much built out,” Monroe said.

Environmental activists opposed the legislation, contending that its purpose and wording were vague. David Gibson, a partner in Adirondack Wild, argued that it might benefit developers who want additional building rights, but not ordinary landowners. “If it’s trying to do TDRs, it just fails,” he said.

Because of the environmentalists’ objections, the Assembly did not consider the bill, but Little may offer a different version. “I don’t think their concerns are insurmountable,” Little spokesman Dan MacEntee said, “so this is something I fully expect we will pursue in the future.”

In any case, observers say it’s a good sign that environmentalists and local officials agree on the value of protecting backcountry lands and—in concept, at least—on two mechanisms for doing so: conservation easements and transferrable development rights.

There are other ways to preserve the backcountry, some more controversial than others. Peter Bauer, who wrote the Residents’ Committee report, said the first step should be a study of RU and RM lands to assess their relative importance, especially in light of recent Forest Preserve and conservation-easement purchases. Such a survey would enable officials to focus conservation efforts on the most significant lands. “We don’t know the conditions of the RM and RU lands in terms of their ecological value,” said Bauer, now executive director of Protect the Adirondacks.

Following are some other ideas that environmentalists would like to see on the table:

• Super RM Areas. Peter Paine said this concept has been kicked around for years. The aim is to place greater protections on lands within Resource Management that are especially valuable or ecologically sensitive. The lands would still be classified RM, but development would be limited to, say, five buildings per square mile instead of fifteen.
• Financial incentives. John Sheehan said tax policies could be used to channel growth to hamlets. On the one hand, a person might be charged a hefty fee for building a home in the backcountry. On the other, someone who builds in a hamlet would get a tax break.
• Diluting densities. Bauer contends that undevelopable lands, such as wetlands and steep slopes, should not count when figuring the number of homes permitted on a property. In effect, this would reduce the building density of a tract targeted for development. Bauer noted that this has long been a principle of conservation-minded planning.
• Clustering. Bauer and others also say the APA needs to have a policy requiring developers to cluster homes when building on RU and RM lands and clear guidelines that define clustering. The goal is to reduce a development’s footprint on a given tract, leaving most of the land in open space.

“Our attempts to get the agency to choose a clustering option have met with resistance.” —John Sheehan, Adirondack Council

Of course, policies and regulations do not implement themselves. Environmentalists say it’s also vital to have an APA staff and board willing to use their authority to protect the backcountry, and they give the current agency a failing grade.

“I doubt that in the minds of the leadership of the APA that Resource Management and Rural Use lands possess any special significance,” Bauer said.

He also said the Adirondack Club and Resort is only the latest backcountry project that the APA has approved without requiring the developer to cluster houses. Back in the 1980s and early 1990s, he said, the agency forced developers to build in clusters to protect open space. Those precedents—at Oven Mountain, Veterans Mountain, and Butler Lake—were ignored by later APA boards, he said.

Sheehan echoed this complaint. “Our attempts to get the agency to choose the clustering option have been met with resistance,” he said. “Developers don’t want to do it, and the staff doesn’t want to make them do it.”

The Land Use and Development Plan is not silent on clustering. It says single-family homes can be constructed on RM lands “on substantial acreages or in small clusters.” Likewise, it says residential development on RU lands will be allowed “on large lots or in relatively small clusters.” Yet, despite the urging of environmentalists, the APA has never developed a clustering policy.

n its lawsuit, Protect the Adirondacks contends that the Tupper resort, most of which would be built on RM land, fails to meet either the “substantial acreages” or “small clusters” criterion. In its answer, the APA maintains the criteria are only guidelines and that a developer doesn’t necessarily have to follow either.

But Paine, who helped write the land-use plan and took part in the political negotiations before its passage, said the alternative of substantial acreages or small clusters was intended to be a mandate. “It’s not a guideline; that’s the law,” he said.

Paine, who also was one of the APA’s first commissioners, said the agency’s approval of the Tupper Lake resort represented a failure in its mission to protect open space.
“The Resource Management language [in the land-use plan] is just tough enough to preserve open space if the Park Agency has the balls to do it,” he said. “We’ve seen in the Tupper Lake situation an agency completely without balls. That never would have happened in our time. We would have insisted on clustering.”

APA DEFENDS RECORD

Because of the lawsuit, APA spokesman Keith McKeever would not discuss the Adirondack Club and Resort, but he asserted that existing regulations are adequate to protect the backcountry and denied that the agency has fallen down on the job. “Every project permitted goes through a rigorous review and is permitted with conditions to ensure impacts from development are minimized,” he said.

The future of open space in the Adirondacks will depend on how policymakers address three questions: How much development should be allowed? Where should it take place? What kind of development is appropriate?

These are tough questions, but the Adirondack Park is large enough to accommodate both preservation and development, according to Kim Elliman, head of the Open Space Institute. “In a region that’s depopulating there should be few land-use conflicts,” he said.

Last year OSI calculated the amount of developable land in the Catskills after excluding public lands, privately owned open-space lands such as farms and forests, and environmentally sensitive lands such as stream corridors and wetlands. “Even after you took all that away, 40 percent of the land remains developable,” Elliman noted.

If a similar study were undertaken in the Adirondacks, he expects that it would likewise find that the region has plenty of room for smart growth. “The issue in the Adirondacks is not a lack of developable land,” Elliman said, “but where people want to build on that land.”