EVST 255: Environmental Politics and Law

Lecture 17

 - Land Use and Conservation Law: The Adirondack History


By reviewing the conservation history of the Adirondack Park, this lecture examines strategies to manage land use and natural resources in protected areas. The Adirondacks has been protected since the 1880s and became a national park in the 1970s. The government manages the park for a variety of uses, including recreational, ecological, and natural resource-related uses. The multiple uses of the park create conflict amongst stakeholders and require regulations that prevent certain types of development. The lecture reviews regulations and zoning ordinances that protect public lands.

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Environmental Politics and Law

EVST 255 - Lecture 17 - Land Use and Conservation Law: The Adirondack History

Chapter 1. Allocating and Managing Land Use [00:00:00]

Professor John Wargo: Okay everyone. First, thank you for coming out on such a blustery day. If you have not picked up your exam from your teaching fellow, you can do that after class today. And we’re switching gears. We’re moving from questions about how to manage chemicals in the environment to questions about how to affect conservation. And also especially how to allocate and manage land use and various natural resources associated with landscapes. And today I’m going to use an example, a history of a conservation effort in New York State known as the Adirondack Park that has a conservation history that now spans almost 130 years. One of the oldest parks in the nation, and it contains many terrific examples of a variety of different strategies to conserve resources and to protect the land.

Now, no matter where you are in the world, and if you’re interested in managing land use and managing ecosystems or biological resources, there are a variety of questions that I’d encourage you to ask. One is first to become familiar with property rights. How are they defined? Who has rights to which types of resources? And in this case, it’ll become clear that it’s important for you to think about property not as a thing but as a set of social relationships. Property is often defined in law as a bundle, a bundle of rights. But if I have a right that’s defined and protected by law, then others have an obligation. So you can’t really think about rights in the absence of consideration of obligations. And if you violate your obligation, the concept behind a property right is that the state or some level of government will have the capacity to monitor, to discover the defect, to enforce sanctions.

So a second question that you need to consider is what is the appropriate level of government to institute protective policy? Should local governments have this ability? Often they don’t, because they have other obligations and their financial background is quiet slight in comparison to state governments or the federal government. So thinking about the particular nature of a problem, whether it crosses especially political boundaries. So many watersheds, as an example, cross political boundaries: they cross town boundaries, they cross state boundaries. Many water bodies provide the boundary between political jurisdictions as well as nation states. So thinking about the appropriate level of government to the kind of problem you’re interested in managing is a really important task.

How about participation in decision making? As you think about conservation strategies, what should be the role of the public in participating in the type of strategy that’s chosen? And you might think of a tract of land that everybody feels is very special, perhaps because it has endangered species, perhaps because of its open space character, perhaps its wildness. You might think of a variety of different strategies to protect that if it’s currently in private ownership. And one of those would be land acquisition on the part of the government. So many national parks, for example, particularly in the Eastern United States, have been created through the process of land acquisition and in some instances, the exercise of eminent domain. And we’ll talk about eminent domain, where the government uses its authority to acquire property for public purposes virtually by taking it away from the private owner but providing compensation.

Intensity of regulation. Regulation is another strategy. So you might simply adopt rules that govern density of allowable new development or the type of new development, whether it’s residential, commercial, agricultural, industrial. And this is the origin of the idea of zoning, land use segregation, land use density control, and often associated subdivision regulations, which are very specific and detail how development has to proceed, including lot sizes, shoreline access requirements — a variety of different restrictions are associated with subdivision regulations.

How about the legitimacy of public value? If you create a really tough set of land use regulations and the property owners do not believe in the legitimacy of the regulation, it guarantees that you’re going to have noncompliance. And noncompliance means that you’re going to have extensive surveillance and monitoring costs and enforcement costs. So believing in the legitimacy of the public value is important. Often an educational process has to take place in order for people to understand why regulations are occurring. And in many cases, they’re developed and adopted to prevent damage, the damage that might be induced by one property owner on an adjacent private owner. So the idea of deciding that you want to build a casino on your property — your neighbors might object to that. Or perhaps a nightclub, so that there are a variety of different land uses that threaten other landowners in the vicinity. Property value often rises following conservation efforts. So the establishment of a park is very commonly followed by adjacent land values increasing quite dramatically, and I’ll provide you with a couple of examples of that.

Density restrictions, land use segregation, aesthetics. Increasingly over the past half-century we’ve seen zoning ordinances being used for the purpose of controlling aesthetics. So aesthetics might be managed by specifying density guidelines, requiring larger and larger lot sizes. So in parts of the California coastal area, for example, there are zoning ordinances that demand a hundred acres before a new house might be constructed. This is to preserve the open space character of the area. So thinking about how you define a desirable or an ideal aesthetic that would be your objective is a pretty difficult thing to do.

The Forest Service started pioneering research into the question of what types of landscapes do people prefer. And they were doing this because they were getting increasingly taken to court because of perceived esthetic damage associated with clear cuts, particularly clear cuts that were visible because of timber leases they had allocated. But they would be visible from nearby wilderness areas. So they decided that they would establish a variety of social experiments, where they would test people’s preferences for different kinds of landscapes, ranging from the wild to the fully domesticated agricultural to intense urban centers. You might be interested in the results.

And following new regulation, when does the government have the obligation to compensate? So supposing I’m a private land owner and I have fifty acres of land, and you develop a new zoning ordinance that tells me that I have to have twenty-five acres before I can build a new house. So that tells me I basically have two building lots. Well I thought that I would have, prior to that regulation, perhaps fifty building lots that might be one acre in size. So my expectation has been suddenly changed by the passage of law, and my property value would significantly diminish. So under what situations does the government need to compensate the private land owner for regulatory activity?

Chapter 2. Curious Conservation History: The Case of the Adirondacks [00:07:52]

Now I’d like to drop you down onto the case of the Adirondacks. But first, I’d like you to think about the distribution of public land in the United States. So out of several hundred million acres of land that are currently under the jurisdiction of the National Park Service or the Forest Service or the Bureau of Land Management or the Bureau of Reclamation, the majority of these lands are located in the Western United States, particularly in the mountain arid region.

If you look at the eastern part of the United States, you can’t see this too clearly because of the light that’s on up here. I don’t know, Judith, if it’s possible to diminish that at all. But as you move toward northern New England, you might be able to make out a patch of landscape right up in this area, and that’s the Adirondack Park. It’s one of the largest intact forests that we’ve got in the eastern United States, actually one of the largest intact forests that we’ve got in the lower forty-eight states. And it also is adjacent to Vermont, which is adjacent to New Hampshire and Maine. And together, these are clustered and form what is now thought of as the Northern Forest in the eastern part of the country. And the Adirondacks, within this zone, has the longest history of protection. But there are the Green Mountains and there’s the Green Mountain National Forest, and there are the White Mountains in adjacent New Hampshire that spill over into Maine. So there’s really quite an unusual tract of land that has a long and curious conservation history.

Again, a bit of a closer look at the Adirondacks. Now as you look out across this landscape, you might think of it as wild and natural. But in reality, it’s the location of intense conflicts over competing interest groups about how they might best gain access to public lands. This is the Adirondack Forest Preserve, protected since the 1880s. If you look back at the history of conservation effort in the nation, Yosemite was deeded to California in 1864, Yellowstone — Yellowstone National Park, was created in 1872, and Adirondack Forest Preserve was created in 1885. It was transformed into a park a few years later, and in 1895, the New York State Legislature passed a Constitutional amendment so that lands that are designated as Forest Reserve lands, are now called Forest Preserve lands. They are forever protected by the Constitution of New York State. So that that means that two successive Legislatures need to enact a statute that would allow them to be transferred out of that category. So this is a very rigorous standard that is hard to change.

And by the way, there are different kinds of laws that might be applied, such as the executive order by William Clinton that created the largest tract of wilderness by relying on federally owned but non-wilderness lands up in Alaska, just before he left office. So you could use a federal executive order to accomplish wilderness designation. Or the Forest Service or the Parks Service or the Bureau of Land Management, they could also administratively designate tracts of land as being wilderness that are under their jurisdiction. So that in terms of the gold standard of offering the greatest amount of protection, you would want a designation that would be very difficult to change. And New York State and the legislature I think got it right back in the 1890s when they created the Forest Reserve.

Jumping ahead, the Wilderness Statute in the United States wasn’t adopted until 1864. And then in 1968, the Adirondack National Park was proposed by a variety of individuals in New York State. And this upset people in the Adirondacks quite a bit, because they were worried about losing control. They were concerned about losing their authority, their ability to effect policy within their park, within the state. And this prompted the Legislature to move ahead by 1971 and create the Adirondack Park Agency. Then by 1973, the Adirondack Park Agency Land Use Plan and Regulation went into effect. And this really will be the topic of the discussion today.

Thinking about the forces that lay behind the development of the statute, you might consider the Erie Canal. The Erie Canal runs from the eastern side of New York all the way to the western edge. And when the timber resources in the park were poorly managed, when the tops of trees were left on the ground and they dried out, they would burn. And forest fires in the 1860s, ’70s, and ’80s, were really common in response to these mismanaged forest lands drying out.

So what happens when a tract of forest burns? It basically loses its flood storage capacity, the organic matter in the soil often is released, it breaks down. So that water running off the landscape commonly floods, so you can get a burst into the rivers and through the Erie Canal, and then you get drought. So that if New York State was going to insure that commerce could move westward, it had to ensure a more sustainable form of forest management in the park.

Now also, think about what was happening in the middle of the nineteenth century. There were several movements in literature and art and also in ecology that are quite curious, and they were colliding in a way that really provided impetus for the creation of parks and protected areas. And one strain of thought, known as transcendentalism, that you can discover in the writings of Samuel Taylor Coleridge, Shelley, Keats, William Wordsworth, Emerson, Whitman, and Thoreau, and particularly Emerson’s essay on nature, caused people to think very differently about nature and what it was and its importance to the human condition. So that nature to Emerson was an organism, a symbol of the mind, it was a moral educator, a source of spiritual truth, and a resource for the imagination.

Now at the same time George Perkins Marsh was writing, and he produced a book called Man and Nature, talking about the destruction of forests and how that might lead to the decline of civilizations. Quite curious, the writings in the latter part of the nineteenth century presaged the loss of biological diversity, as well as climate change that we’re now experiencing. So he wrote, back in 1864: “A condition of impoverished productiveness, of shattered surface, of climactic excess as to threaten deprivation, barbarism, and even extinction of species.” So nearly a century and a half ago, a scientist was predicting climate change associated with the way that we were mismanaging resources and the landscape.

Also the targets of transcendentalists include Christian views. They challenged the human role to be one of dominating nature, the Christian view that we should be fruitful and multiply and replenish the earth and subdue it, and that Christianity denies souls to non-human species. These were new and very interesting thoughts to people. This is captured in a work produced by Roderick Nash, Wilderness and the American Mind, that’s published by Yale Press that I commend to you if you’re interested in following the way that these ideas collided.

Now at the same time, there were many artists that were painting landscapes both in the western part of the nation as well as in the east, including Thomas Cole and Albert Bierstadt, Winslow Homer, and Frederic Church. And they all painted in the Adirondacks. So think about the fact that people were reading the transcendentalist literature at the same time that these art shows were traveling around not just the United States but traveling around the world, giving people a very different impression of what it was like in the more remote parts of the United States. So Winslow Homer has painted more in the Adirondacks than the others, so I just thought I’d show you his work on Two Guides, the Hunter, and the Fisherman, basically celebrating the experience of being the outdoors.

Chapter 3. Multiple Uses, Ineffective Control and Conflict [00:16:43]

I’m going to fast forward on you to the middle part of the twentieth century, when you recall that I argued that the interstate highway system was built largely in response to concerns about the Cold War. But this network eventually ringed the Adirondack Park and it made it accessible by the early 1960s to more than ten million people within a day’s drive. So access is really a critical determinant of property value and also the rate of development.

By the 1960s, mid-sixties and 1970s, increasing leisurely time, increasing demand for recreational opportunities led to increasing property values within the Adirondacks. People were looking for second homes. The development industry was booming not just here but also in the vicinity of Bar Harbor in Maine and the vicinity of Grand Teton in Jackson, Wyoming, also in the Sierras, so that the population in the United States wanted access to remote recreational opportunities. There was a real interest in wildness and nature, particularly in the concept of wilderness. And quite honestly, I’m surprised at your generation. I don’t see the same interest in wildness or wilderness that was very prominent in people’s concerns about conservation back in the 1970s.

So that many in the Legislature in New York became concerned about development being financed with international capital in the park, rapid cutting of the forest, rapid development — particularly along shorelines — and rapid increases in property value. In some communities, communities that had populations of only 300 people, new projects were proposed up to 10,000 new units in size. If you then extrapolate that one new housing unit might house on average two to three people, this could multiply the population of a community by ten or even twenty times. So what would that mean for that community? What would it mean in terms of its need to invest in institutional support for the community? And by that what do I mean? Well how about road development, highway development, school systems, fire, police?

So that economic pressure was being brought to bear on these communities that already were the most impoverished in New York State. That band of forest that I pointed out to you in northern New England is demographically quite interesting. It’s grown to be bimodal in terms of income distribution and dominated more heavily by the poorest. But also, there are increasing numbers of private property owners who own second homes. But they don’t vote there, they don’t vote in the Adirondacks and many of them don’t vote in New York State. So that this bimodal distribution creates a very interesting political dynamic, a tension between those that have always lived there that are poor, as opposed to those that have the capacity to buy the new houses and bring their conservation values to the Adirondacks. So this statute was really unusual. And the preamble to the statute includes this language: “Local governments in the Adirondack Park find it increasingly difficult to cope with the unrelenting pressures for development being brought to bear on the area and exercise their discretionary powers to create an effective land use and development control framework.”

Now, the mission statement of this law is really quite complex: “The basic purpose of this article is to ensure optimum overall conservation, protection, preservation, development and use of the unique scenic, esthetic, wildlife, recreational, open space, historic, ecological, and natural resources of the Adirondack Park.” So within this mission statement, you should immediately see a number of potential conflicts. How can you at once maximize conservation at the same time you’re maximizing development and use? Actually, it’s interesting. If you drive into a national forest, you’ll see a sign beside the edge of the road when you enter all national forests. And the sign will say “Land of Many Uses.” Land of many uses, well how do you reconcile multiple uses within one tract of land managed by a public agency? Well, it’s difficult at best, and that’s largely part of the story today.

Innovative requirements in this statute demanded an ecological analysis. So what is the resiliency of different ecological zones? Different ecosystems? How much development can they sustain, and is there a logic behind allocating a density requirement to different types of ecosystems? How about density regulations and the clustering concept? This statute relied on the idea that you should concentrate new development in close proximity to village centers so that you don’t overstress the local government’s need to develop new roads, to maintain those roads, and also require new power lines, new sewage lines, new water lines. So the idea that cluster development builds on existing centers of the population is really quite interesting.

And this was to protect the open space character as well as the ecological characteristics of the surrounding landscape. It wasn’t designed really to conserve energy. But if I were going to challenge you to design today a land use regulatory scheme that would be the most conserving of energy resources, it probably would follow this model and it would follow the model because if you have people living closer together, you are clearly not going to use as much fuel moving around between shopping and recreation and school and other activities. So if you increase the density restriction, you increase the amount of land area required before a new house might be developed between the village centers, then that would discourage development in those areas. And in the case of the park, inside the centers there is no density restriction at all. So it’s an encouragement basically to build up between the village centers. In the more remote areas, there’s a requirement that you have forty-two acres before a new house can be built. Forty-two acres is a lot of land. Forty-two acres in Connecticut, most of Connecticut is zoned on average one acre per new unit. So forty-two units might be placed on that zone. But only one could be placed on that area within the Adirondacks.

It also required setback requirements. Setback requirements, setback requirements from especially water bodies, streams and lakeshores. And this wild-to-urban continuum was designed really with an aesthetic purpose, to try to protect the park-like character of the area. It also had a provision that was really new back in the 1970s to offer specific protection for agricultural lands. So that agricultural lands were thought of not the way that we would think of them today, as providing an opportunity for locally-grown produce that would be more energy efficient. But they were designed predominately to protect the open space character of the park.

Vista preservation so that individual vistas were identified. Actually, that’s kind of an interesting sidelight story about how that occurred. One might think that there really might not be a legally defensible means of going out and identifying what the most beautiful areas are in an area this large. So the Adirondacks is roughly six million acres in size. It’s larger than Yosemite, Yellowstone, and Glacier National Parks put together. So that wandering around and trying to figure out where the ideal vistas are located was a challenge that the park agency had to confront. They were required to do that by statute. The reality of how they did it is that an engineer and a surveyor got into a pickup truck with a case of beer and drove around for a weekend looking for what they thought were pretty landscapes. They put pins in a map, and lo and behold, these pinholes in the maps translated into legally binding regulations that prevented development of different forms in the vicinity of the scenic vista.

Wetlands in wild and scenic and recreational rivers were also designated. The definition of a wetland is actually quite interesting and quite difficult. Today as I was coming in to give the lecture, I noticed that areas that normally look dry had standing water on them. So that low-lying areas can be quite deceptive if you’re not there during extreme rain events. So that wetland designation gave the Adirondack Park Agency jurisdiction to deny development. People were not allowed to build in wetlands, period. Now most states have wetlands laws as well, not just in the Adirondacks. Most states do not have wild, scenic, and recreational river statutes that provide an overlay on top of the Adirondack Park Agency statute.

Finally, the provision that stirred terrific controversy was that the zoning authority that previously was held by local governments was overtaken by the state government. So not only would you have private property owners that would be highly resistant to this new set of very complicated regulations that they viewed actually took away their private property rights and diminished their property value, but they also had local governments that felt that they were being pushed out of the picture, that their zoning responsibility that they’d had for more than a hundred years, that that was taken away from them. So that the statute set up class A projects, which were large development projects that might have more of a regional influence. And those were reviewed by the state. And class B projects were reviewed by local governments but only if the local governments adopted the state standards to apply to those projects.

Chapter 4. Ecological Constrains for Land and Resource Development [00:27:13]

So if you were given the responsibility to develop an ecologically grounded approach to land use regulation, what would you do? Well, you probably would go off and conduct an inventory of what resources are there in the park. You’d look for aquifers; you’d map them out. You’d map out surface waters and you’d map out setback distances from those surface waters to try to be sure to protect water quality. You’d take a look surficial geology, particularly areas that had shallow soils or soils that had clay beneath it.

Adirondacks is rather famous for its clay, which means that you have a clay, impervious surface that is often only one or two feet beneath the top of the landscape. That means that if you’re going to put in a septic system — and a septic system basically means that human sewage from a facility or a house goes down into a pipe, it goes into a holding tank where solids settle out, and then fluid drains off and it leaches out through pipes that have holes in the bottom of them and then down through a bed of sand — but if there is a clay area that lies beneath the sand, that means that the sewage is going to stay close to the surface, it’s not going to dissipate, it’s not going to break down, and it means that bacterial contamination of surface water supplies is much more probable.

General soils characteristics were also mapped. Elevation was mapped, and I’ll tell you more about that in just a second, as well as land use. Where are the residential areas? So that the idea of clustering development in close proximity to where existing development was was a critical way of thinking about this. Now, land cover also was considered, so whether or not the tract of land was forested, whether or not it was heathland, whether or not it was wetland. So that the biological resources were also mapped.

On top of where did the state lands lie. So there are 107 towns and villages in the Adirondack Park. So 107 different local governments that were upset with the State of New York for taking their authority away, but they all had to go through this mapping process. So those of you that are familiar with geographic information systems know that this process now goes on electronically. So soils and vegetation and land use and property ownership patterns, they’re all piled on top of one another electronically so you can zoom in or you could change the layers that you’re looking at instantly. In this case, they drew these maps out by hand, and that actually led to some pretty interesting problems when private landowners would come to the government and say, “You know, I’m not certain what zone I’m in. I appear to be on a boundary.” And it turned out that by drawing a line on a map that is really small in scale that the width of the line itself was a hundred yards wide. And a hundred yards may or may not include all the property of an individual. So which section would they lie within? The forty-two acre zone or perhaps the three-point-two acre zone? It made a huge difference in the eventual salability and property value of the area.

And also proximity to roads: I mean, if you think about an area, you would also want to know where the road network was. You would think very carefully about how you would allocate density based upon access to roadways. So all of this information was put together to develop this map, which is a legal instrument. The idea that a map might be a legal instrument is kind of an interesting thought. So that in order for someone to know what their rights are, their property rights are, they would have to pinpoint themselves on this map. And each color is associated with a certain density allowance. So if you are located in the green, that means that you need forty-two acres in order to develop a new house. If you’re located in the yellow, that’s eight acres. If you’re located in the red, then you only need one acre. And if you’re located in the village centers that’s designated as brown, you have no density requirement at all.

By the way, you’ve heard about cap and trade. Well the cap and trade idea can be applied very well to a situation like this. So that you might allow trading rights under certain circumstances within a designated boundary perhaps within a community. So that the idea of transferable development rights is something that we’ll talk about next week. So these are the different zoning limits that have been established by law and have governed the Adirondack Park Agency’s implementation of this plan for quite a while.

How does this play out as you’re looking at a landscape? Well here is a little community, it’s a community of Keene Valley that is just at the foot of the high peaks region, the highest mountains in New York State. And this is a community of about 800 people. And here is the village center with no density requirements. And as you move away from the village center, you find that you’re required to have larger and larger lots before you can build a new structure, until you reach the public lands, which begin in this case up on these hillsides leading up into the high peaks.

So that you can think about this as a kind of a set of concentric circles. It’s much more complicated than just concentric circles, but development ranging from the urban center on one hand to wilderness areas that are designated on the other hand. So that the public lands have their own set of regulations under this statute. The village of Lake Placid, where the Olympic Games were held, provides a good example of this. Where you see the brown in the center is the area where there are no density requirements. And then the lands that border the federal wilderness areas designated by this blue, they have the higher restrictions, the requirements for larger acreages.

So where are battlegrounds? Where would you imagine you would get the most litigation? Where would you find the greatest amount of private conflict over these regulations? Well one clearly would be areas with views. So areas that have high elevations or areas that are adjacent to water bodies. So if you were going to map out property values, you find that areas that had the best views, that had the highest elevation, and that were adjacent to either rivers or lakes or ponds would have the highest property values. So you could be predictive about this, about where you’re going to receive your greatest amount of conflict and resistance to new regulation. When property values are highest, you’ll find people are most anxious to develop. The rate of development occurs more rapidly along roadways, along lakes and rivers. The cost of developing in the mountainous areas at higher elevation are more prohibitive to developers. So shorelines, such as this example on lakeshores are extremely desirable from the perspective of a developer — multi-million dollar boathouses that have been constructed.

Also, hotels and large camps on islands. There are more than 1,000 islands on Adirondack lakes and ponds. Here’s one of them in Lake George, as an example. Lake George provides the water supply for its town so that the water is treated with chlorine, like New Haven’s water is. It’s filtered in a very rough way through sand. But it’s not filtered by activated carbon, which could remove a variety of different kinds of organic pollutants that might be in the water supply. So in this situation, if this facility had its own leaching field, we’d be worried about it, because most of the islands in the Adirondacks are basically mounds of bedrock that have very shallow soils on them, that have very low capacity to absorb human sewage, so that there is considerable conflict between the developers’ interest to build adjacent to water bodies and the concern of these communities to protect their water supplies.

Another good example over prime development land from the perspective of the investor would be a scenic vista such as this. This is one of the forty-odd scenic vistas that have specific development restrictions. So that it sits just adjacent to Mount Van Hoevenberg and overlooks the Adirondack high peaks. And a developer, McDonald’s Corporation, decided this was a site that they wanted to put a McDonald’s up for when they preparing for the Olympic Games. They didn’t want to go next to Wendy’s or to build their golden arch next to a Burger King. And there was a strip already built in Lake Placid just nearby. But their vision of what might look best in this area was something like this. Well, the restrictions in the map, the fact that the surveyor and the other Park Agency employee had put a pin in this area gave the State of New York to deny a permit to this developer simply based on esthetic grounds. The developer eventually did construct a MacDonald’s next to the Wendy’s and Burger Kings on the strip in Lake Placid.

Here’s another example of a developer that proposed a several-hundred unit condominium complex on the edge of Lake Placid. Lake Placid, like Lake George, also provides water from the lake to its community as their drinking water source. And they’re very sensitive about different threats to it, whether or not it’s motorboat use or whether or not it’s new development on the lakeshore. This is a very large and beautiful lake, and the water quality is extraordinarily high.

So here you see that part of this complex is a golf course, but they wanted to build hundreds of additional condominium units. And the argument that a developer will make is often what I call technologically optimistic. You know, we can build this without causing any decline in water quality within the lake. We will have the state of the art sewage treatment system, we will be sure that no sewage reaches the lake. We will also construct our buildings, which they wanted on the edge of the lake, in a way that would not cause sediment to flow into the lake so that there would be no diminished water clarity.

The water clarity issue is often a very significant point of debate with respect to new development. In Lake Tahoe, it’s been extremely important because the clarity of Lake Tahoe, for those of you that have been there, is exceptionally high. They measure this by a Secchi disk reading, which is just a disk that they drop down into the water. And you can see that disk in Lake Tahoe at about fifty feet in depth, which is really pretty remarkable. But gradually, over several decades, the visibility declined, and it was because of development on the lakeshores. It was because of sedimentation and also runoff from adjacent agricultural uses or say runoff from streets and roads and parking lots that were building up inside the watershed. So that most communities that have lakes of extremely high quality have this concern, and it justifies their adopting tougher zoning regulations.

In this case, when I worked in the Adirondacks, I happened to be responsible for the State of New York’s review of the project and remember very distinctly the initial proposal and my response requesting additional information that was about a fifty-page letter that I and colleagues wrote that we felt we needed in order to understand the environmental impacts of this development on the lake. Well, the developer decided that they would scale the development back quite substantially. They wanted a marina, for example, that would be suitable for at least a hundred motorboats. But the villagers in Lake Placid didn’t want motorboats. Motors on boats are notoriously inefficient, meaning that much of the fuel is burned but there is a proportion, at that point in time, it was between ten and twelve percent for the standard engines that were being used on motorboats, is simply shunted into the water. So that slicks are common around marinas that really are evidence of their inefficiency.

So gradually, the proposal was whittled back from several hundred units to several dozen units. The developer agreed not to build the marina. And he agreed also to put the buildings back further from the water to protect it from sedimentation and protect the water clarity. And the total amount of impervious surface allowed was also restricted. So the number of parking spaces, for example, or the size of the tract of land that they owned that could actually be covered by an impervious surface. So these are all regulatory tools and strategies that could be used to protect this area.

In addition, a darker color for the buildings was required and building height was restricted. And this was to protect the character of the area. If you were looking at this site from the middle of Lake Placid looking back at the mountain peaks and looking at the public lands that lie back here, it’s a very natural looking landscape, and that was something that was protected by the statute. So that the Adirondack Park Agency had the authority to say, “Sorry, you’ve got to make sure that your building is dark in color and that it’s not higher than X stories.”

So that what’s really driving the concern about this is underlying instincts, underlying ideologies about appropriate uses of land and appropriate definitions of private property rights, a libertarian instinct as opposed to an authoritarian instinct. So the longtime residents of the Adirondacks would march down the street with the American flag and argue that their freedom, that their liberty was being violated by this Communist organization that has taken away their property rights and not compensated them. So the centralization of authority has been the primary mechanism of effecting conservation policy in the United States. Taking the private property rights or assuming authority to control public lands is a form of concentration of authority.

Also, the ideology of utilitarianism, that these resources are there for human benefit and human use and we ought to be allowed to gain access to them. We ought to be able to cut down the timber on Forest Preserve land. We ought to be able to ride our snowmobiles across these trails that the preservationists’ instincts, their concern about the noise, about the air pollution, their concern about dense populations in wild areas, that that was something that was less important than freedom of access and the right of the people to make use of the land.

So, some of the towns already had a high percentage of ownership in state lands. And this created a very different kind of problem. So, you know that towns get the majority of their income from property taxes. They get some state subsidies for a variety of purposes, including schools, but also for transportation and sometimes for medical facilities. But a town such as this town has the majority of its land in public ownership already, which means that it has a highly restricted private tax base. So that the State of New York pays payments in lieu of taxes, but these really are not comparable to the kind of income that could be generated if development were unregulated, if they were allowed to build more rapidly.

Another example of a conservation strategy is demonstrated by this case in the town of Keene. There is a long strip of land that’s privately owned by the Sable Club that extends back perhaps six miles in length and maybe a half a mile wide. And I should have a photo here that would show you that the sides of these lakes go up quite dramatically into the mountainside. It’s owned by a private club. And the private club decided that they were going to self-restrict their development rights, but that they were going to sell those development rights to the State of New York. So the State of New York did not take over complete ownership of the land. But remember, I said that property rights might be thought of us a bundle. They sold off the developable rights to the landscape while maintaining the underlying fee ownership.

So that they were able to do this in a way that reduced their tax burden. The tax burden to this community was substantial, given the hundreds of acres of lands that they owned, so that they were anxious to go to the town and say, “Look, our property value has been diminished, we’ve given up our development rights so that our tax base should be lowered.” There are a variety of different instances where the nature conservancy throughout the United States has affected this strategy. And it’s less expensive than the state going in and buying up all rights to the land, and it does offer this benefit for those that feel like they do not want to see the area developed any further.

Chapter 5. Who Are the Stakeholders? [00:45:11]

So in this debate, as in many debates, who are the key actors? Who are the stakeholders that are common? Well, there are interesting tensions between conservationists and environmentalists, particularly in respect to the intensity of use of public lands. So that in the Adirondacks, for example, you would have the Adirondack forty-sixers, that pride themselves in having climbed all forty-six peaks in excess of 4,000 feet in elevation. And then you’d have the environmentalists. And they were often at odds about what the right way to manage public lands ought to be. There are recreational user groups, as there are surrounding all public lands in the United States. And these might vary from cross-country skiers, to snowmobilers, to downhill skiers, to timber companies, to oil companies, to those that feel like there are values associated with those public lands that they want access to, that they can make a profit from. There are tourist corporations as well that always surround these tracts of land, outfitters in the western part of the United States, horse pack trip offers, and another good example might be what happens with the tour boats and the cruise ships up in Alaska. There are also, as I mentioned earlier, there are commonly serious conflicts between permanent residents that are more anxious to see additional development of the park and the seasonal residents, that are trying to basically keep it as undeveloped as possible.

And there are tensions among government agencies. The agency that existed before the Adirondack Park Agency was the state’s Department of Environmental Conservation. And it had authority before the 1973 Act to administer public lands. So if you suddenly give that authority and policy making responsibility to a different organization, you’re going to have terrific resentment on the part of the agency that formerly had that authority. Just like local governments were resentful about the state assumption of authority. And then you have Native American claims as well that caused conflict in management of both private and public lands and led to litigation in the park.

Well, we’re at time today. And I’ll pick up on public land issues and also property rights questions with respect to the Fifth Amendment on Thursday. Thank you.

[end of transcript]

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