When a conservation easement may not be enough

Five years ago The Nature Conservancy purchased 161,000 acres of land in the Adirondack Park. Subsequently New York State acquired conservation easements that will protect 92,000 of those acres but allow continued commercial logging. Another 65,000 acres is slated to be purchased by the state and added to the Park which is protected by the “forever wild” article in the state’s constitution and would preclude any commercial logging.

The final step in this complex preservation transaction is now being challenged by an on-line petition that urges the state to use a conservation easement rather than a fee purchase. From a preservation standpoint this would mean the lands would remain in private ownership and could be used for commercial logging and various hunting and fishing camps would not be displaced. The petition alleges that the cost of acquiring a conservation easement would be $18 million with no ongoing costs as opposed to a first year cost of $60 million and a total cost of $400 million over ten years taking into account lost taxes, management expenses and lost opportunity costs.

The petition is supported by the Local Government Review Board and the Adirondack Association of Towns and Villages. One argument that proponents of the petition make is that “forever wild” status could make dealing with invasive species more difficult if not impossible and put the private forest lands at risk as well.


Boreas Ponds

The tension between those living in the park and relying on its lands to make a living and those who seek to have it protected and preserved is a longstanding challenge to those responsible for making and implementing environmental and economic development policy in the state. The Adirondack Park is the largest park in the lower 48 states and is unique in having 130,000 permanent residents living within its boundaries. In many ways it is an ongoing experiment in what it means for humans to live in a fragile ecosystem on a sustainable basis.



A landowner’s right to frack

Since beginning this forum several months ago, one of the biggest surprises to me is the extent of the controversy over tapping into the Marcellus shale formations for trapped natural gas. The land rush to acquire drilling rights and the ensuing energy boom throughout much of the northern Appalachian region has generated concerns in the environmental community regarding the impact of tracking on water supplies and air quality. Approximately 25,000 wells are being cracked annually and 4 million gallons of fluid were injected under pressure into each of those wells.

Hydraulic fracturing

Regulators have been caught off-guard by the explosion of activity in this area and have sought to play catch up for the past several years.

EPA has just issued the first regulations regarding air pollution emissions at fracking sites. However, the agency is prevented from addressing the more serious concerns about fracking’s impact on water because in 2005 Congress at the urging of Vice President Cheney exempted gas drilling from the Clean Water Act.

Some 200 local governments have stepped into the regulatory void and banned fracking in their jurisdictions. This movement is likely to grow with the recent New York court decision upholding the Town of Dryden’s ban on tracking there. That decision in turn generated a reaction by the Joint Landowners Coalition of New York. The JLCNY’s Declaration of Landowner Rights calls for “a uniform standard for natural gas development” arguing that local bans such as the one in Dryden result in “a confusing legal patchwork that impedes private property rights, hinders progress and limits viable economic opportunity”.

It will be interesting to see how the struggle to manage this latest energy boom plays out among the local, state and federal levels of government. If history is any guide, the gas drilling industry will prefer the certainty and uniformity available only from the federal government.




Immigration pays

Since 1992 it has been possible under the EB-5 program for those wishing to emigrate to the United States have been able to move to the top of the list by investing either $500,000 or $1,000,000 (depending on the location of the investment). In recent years, developers have made much greater use of this provision to finance project as disparate as the Jay Peak ski resort in northern Vermont and the Atlantic Yards sports arena and mixed-use project in Brooklyn. Nearly one-half of the $2.2 billion invested over the life of the program has occurred in the last fiscal year. In 2005 only 158 visas were issued pursuant to the program; that number had skyrocketed to 2,364 in the first quarter of the current fiscal year.

Jay Peak's Pump House Indoor Water Park

As the September 2012 deadline for reauthorizing the program draws closers, a number of publications including The New York Times and Business Week have raised questions about how developers are using the program in ways not envisioned by those who drafted the measure. Because the investment required is cut by 50% if the investment takes place in a Targeted Employment Area, which are metro areas with very high employment rates and rural areas. Yet, developers in NYC used gerrymandered districts to qualify projects including the GEM Building, the Battery Maritime Building and Atlantic Yards in affluent areas of Brooklyn and Manhattan that had virtually no unemployment.

GEM Building

Parking maximums can make strange bedfellows

Traditionally local zoning ordinances required project sponsors to provide 100% of the parking demand generated by the proposed project. More recently both Smart Growth and sustainability advocates have begun to question that approach as reinforcing the existing car culture. It is becoming more common, particularly in metropolitan ares with extensive public transit systems, to reduce minimum parking ratios thereby reflecting increased usage of public transit. In some cases, municipalities are going a step further and instead adopting parking maximums (i.e., rather than require a developer to provide a certain number of spaces, the city prohibits the developer from providing more than a certain number of spaces).

The underlying theory is simple enough to understand. Fewer parking spaces will eventually translate into fewer cars, less traffic, less land devoted to parking lots and parking garages and greater ridership on bus and rail systems. In turn, this means a reduction in exhaust emissions and gasoline usage and cleaner air. This trend is occurring in locales as disparate as New YorkSeattleTacoma, Los Angeles and Fairfax County (VA).  

Los Angeles

When this new approach is put into practice, however, it can lead to some unexpected arguments being made by the parties who participate in specific project zoning decisions. For example, developers typically tried to reduce parking requirements to save money on construction and operation. Now developers may be arguing for permission to exceed the new parking maximums if they are afraid they will not be providing as much parking as prospective tenants are seeking. Neighborhood activists usually want to make sure that office workers and shoppers are not using up the scarce supply of on-street parking used by residents. With parking minimums, these activists usually were on the opposite side of the fence from developers. But with parking maximums, neighbors and developers can find themselves as allies fighting together against planning officials who seek to minimize the amount of new parking.


A recent cleverly designed study done in New York City made a compelling case that the availability of a guaranteed private parking space increased the likelihood of the car owner driving into Manhattan. This study of how parking minimums influence commuting patterns by Rachel Weinberger of the University of Pennsylvania has provided empirical support for parking maximum proponents who believe that restricting such parking will reduce commuter trips.