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FIELD NOTES

Loss of Institutional Memory at the APA
By Dave Gibson, Managing Partner Adirondack Wild

Clemens at the APA

Testimony during the ACR public hearing of the APA, 2011

Institutional memory is important. It reminds folks who join an institution of any kind what the mission of that organization is, what has come before them, what was considered important then and why, what continues to be the mission today. It strengthens the links in a longer historical chain that can easily be weakened if there is no one left in the institution to remember, to teach and to motivate the newcomers.
Veterans should be empowered to help newer hires understand that they are part of an important historical legacy. This is not to say that the institution cannot adapt to new circumstances and improve. It must. It is to say that there ought to remain a commitment to always keep the legacy in view so that the compass points in the same direction.

Adirondack Park Agency staff are highly skilled resource professionals doing a difficult job on a huge scale, working under difficult legal timelines and, like the rest of us, isolated from their colleagues during the pandemic.  However, judging from comments some of them made last week during the permit issuance for the Woodward Lake major subdivision, I believe the Adirondack Park Agency has lost significant amounts of institutional memory. That can lead to mission creep.

Statements were made by the APA’s staff last week about their fundamental scope of responsibilities that would not have been made by many of their predecessors and, in fact, seem contradicted by their predecessors. The laws and regulations have not changed. So, what has changed? In my judgment, it concerns loss of institutional memory, leadership and of those empowered to shine a directional light and conduct regular training for current employees.

In general, the statements made by APA staff last week during the Woodward Lake subdivision review suggested a far narrower, far more constrained view of APA scope of duties under the APA Act and regulations than their predecessors had.

Chad Dawson at teh APA

Marsh at Woodward Lake. Photo © Dave Gibson

I will now paraphrase some APA Staff statements which I heard made about agency review of the 34-lot Woodward Lake subdivision, which ultimately received a permit last week:
Our only standard for judging a project layout or design is the impact the specific design will have on the resources. 

We should only hold a public hearing if the existing permit review is missing key facts or has violated regulatory standards.

There is some flexibility in the act to otherwise judge what constitutes undue adverse impact, but largely this is a question of whether clear regulatory standards such as shoreline setbacks, etc. are being violated or not. Here, at Woodward Lake, our regulatory standards are being exceeded so it is unlikely there can be undue adverse impacts.

We are not a design agency. We can’t redesign projects that are given to us by applicants.
Only the facts on the record should guide your decision.

The applicant has an expectation based on our land use areas about the number of developable units he can build. We can’t significantly reduce those building rights or opportunities or that may constitute a taking of private property.

The Alternative 2, which some letter writers claim is the preferred conservation design and which clusters the subdivision, cannot meet our regulatory standards and would be worse for the environment than the preferred alternative of the applicant.

We’ve done all the impact analysis that needs doing, objectively. Therefore, if you vote “no” on this project, we run the risk of begin sued by the developer.

Compare the above conclusions that the APA lacks the legal authority to reshape or redesign projects with statements issued ten years ago by former agency staff. These staff were witnesses during the APA’s 2011 adjudicatory public hearing on the Adirondack Club and Resort subdivision project in Tupper Lake. I quote their statements from the public hearing record:
the Agency still has a great deal of latitude to determine whether the issue a hand for which the I information is deficient rises to the level of an undue adverse impact.

The impact zones have not been collapsed.  They haven’t been overlapped to the greatest extent possible, in my opinion.  There are still some areas, I think, where driveways can be shortened, dwellings can be moved closer to roads, to existing roads, and that sort of thing.

Are there other modifications that you think could reduce the impacts?”  Certainly.  A reduction of the number of units.

Alternatives to a large subdivision should always be considered.  Alternatives analysis is an inherent part of any SEQRA review. In the case of Big Tupper, alternative plans for clustering in Resource Management, for concentrating all of the development around the ski center and development proposals that involve different numbers of housing units, particularly a smaller number, should be developed and compared to the proposed project. The analysis should include both economic and resource costs and benefits of the project as compared to the alternatives.

In my experience this process (of identifying alternatives) can be short-circuited by identifying a preferred alternative prior to conducting the analysis. That is what has occurred in the case of this proposed project. In my opinion, the analyses noted above do not constitute a true alternatives analysis. Different scenarios were not described and impacts were not compared…In my opinion there has not been an organized and rational discussion of reasonable, potential alternatives.”

Good design collapses and overlaps the zones of impact from the development activities to minimize negative effects… One alternative would be to eliminate the eight large Great Camp Lots east of Simon Pond, and reduce the size and spatial spread of the smaller western and eastern Great Camp Lots in RM. It’s possible under such a scenario that the eight large Great Camp Lots eliminated from east of Simon Pond could be relocated closer to the small eastern and western Great Camp Lots and closer to the ski resort. This would reduce road mileage and infrastructure costs, minimize loss of open space, minimize habitat fragmentation and allow for continued effective sustainable forest management east of Simon Pond. This alternative scenario, although suggested by Agency staff, was never proposed by the Project Sponsor nor was it evaluated to the same level as the existing proposal.

In the case of ACR in Tupper Lake, some staff went into that hearing stating that alternatives should be subjected to the same level of rigor as the preferred layout (but were not).  Alternatives which significantly re-designed the project to achieve legislated goals were perfectly legal. In the case of Woodward Lake, agency staff felt quite differently. They appeared to subject the applicant’s one design alternative to little debate or scrutiny. They simply accepted the alternative as presented, critiquing it because it would exceed measurable slope standards and not accommodate sufficient setbacks of principal buildings from wetlands and streams and not afford sufficient room for on-site septic setbacks.

Staff did not work with the Woodward Lake applicant to reduce the number of principal buildings to avoid these natural resource constraints, and then concentrate the remaining number of lots in ways to overlap their negative impacts to achieve a better, overall conservation design. That would have been the way some APA staff would have proceeded in 2011, based on the same law and regulations in effect today.
Today’s APA staff appear to treat potential building lots as development “rights.” In fact, APA staff used the words “development rights” rather frequently during the Woodward Lake discussion.  The term “development right” is not found anywhere in the Act. The Act characterizes overall intensity guidelines (OIG) as “the overall intensity of development for land located in any ____ area should not exceed approximately ____ principal buildings per square mile.”

For instance, I own 45 acres in a Rural Use land use area in the Park. Under the law, the OIG for Rural Use shall not exceed, on average, 75 principal buildings per square mile or approximately one building for every 8.5 acres. I might expect to be able to subdivide and build 5 principal buildings on my 45 acres.
Former APA staff characterized these as “opportunities,” not “rights” that I can count on. All manner of “development considerations” constrain that number as a guideline. These considerations under Section 805 of the APA Act include measurable slopes, soil characteristics, setbacks from water and depth to ground water, but also include less tangible factors such as “forest resources,” “open space resources” and “quality and availability of lands for outdoor recreational purposes.” These and other listed considerations are not easily quantified and require the exercise of judgment in carrying out the agency’s mission.

By eliminating additional lots and the exercise of their full powers under the Act, APA could have advanced a Woodward Lake layout that would keep more than half the lakeshore undeveloped, eliminate the new road, keep the forest and wildlife habitats unsubdivided, and comfortably fit a goodly number of new home lots on good soils in one location of the project area. Such an alternative, in Adirondack Wild’s judgment, would be consistent with the APA Act.

Staff now assert that a re-design falls outside APA powers. Judging from statements made in 2011, that was not the feeling of prior APA staff. Why this change?  Again, in part it reflects a loss of institutional memory, orientation, and training. That all assumes strong leadership. More training is needed to explain how the overall intensity guidelines work and how application of the development considerations, good judgement, and a hard look at all reasonable alternatives may involve a reduction, where necessary, in the number of development opportunities to achieve better conservation design of development and avoidance of undue adverse impacts.

This broader view of APA responsibilities under the Act can be seen in 1991 when the agency altered the applicant’s gridding of the entire shoreline of Butler Lake into home lots, instead reducing proposed 96 lots to 23 lots clustered on one portion of the lake’s shoreline (APA Project Permit 89-312).
This broader view was also exercised in 2004 when the agency significantly altered an applicant’s desired “piano key” layout of 8 new home lots to create, and I quote the staff’s own characterization, “a model for conservation design of development, impact avoidance, and protection of large, contiguous tracts in land in land classified as Resource Management” (Persek project, APA Project Permit 2001-76 in the Town of Horicon).

It was also exercised in 2012 in the review and approval of the Highland Farmers, LLC subdivision in Keene, where some lots were re-arranged by agency staff to achieve better overlapping of the ecological impact zones of development.

Adirondack Wild has cited many other examples of the APA’s working with applicants on permitted alternatives that significantly redesign what the applicants first submitted to the agency.

So, why not at Woodward Lake? A few APA members also registered discomfort with an ever-narrowing staff view of APA’s responsibilities. Said one during the discussion of Woodward Lake, and I paraphrase: “I was put on the APA because of my background and knowledge and to exercise good judgement about what may constitute an undue adverse impact. These are not purely cut and dried or technical issues.”  Said another, again I paraphrase: “We’re getting this development fully baked. Can we please look at reasonable alternatives earlier in the process? There are issues here that transcend technical facts.”


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4/09/21 At 50, how are APA and DEC Performing?
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3/18/21 Demystifying Wildlands Monitoring
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3/17/21 Loss of Institutional Memory at the APA
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3/08/21 Elk Lake: The First Adirondack Conservation Easement read more >


2/18/21 ‘Out of harmony with forest lands in their wild state’ read more >


2/14/21 Critiquing the APA – Proposed Management of the Debar Mountain Wild Forest read more >


1/17/21 Driving the Northway with Paul Schaefer
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