S.7235 (LaValle) / A.8885 (Englebright)
Pine Barrens Takings
January 8, 2018
The Business Council of New York State opposes this legislation, which is intended to effect local land use decisions through the removal of a landowner’s current rights to utilize their own property. The Business Council strongly supports public private partnerships that are dedicated to the preservation of our natural resources, but this legislation does not represent a partnership as it is clearly designed to force one landowner to “bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”1 This legislation represents a significant departure from past expansions of the Long Island Pine Barrens Protection Act (The Pine Barrens Protection Act), which was originally established by an unprecedented convergence of environmentalists, business leaders and government.
The Governor was correct for vetoing this legislation and his veto message was correct when it stated “Achieving land preservation by legislatively changing the status of privately owned properties purchased in order to install solar energy after environmental reviews have been completed and local approvals obtained sends the wrong message to renewable energy proponents and to those investing in clean energy.” The veto message also indicated that the sponsors of the legislation were uninterested in reaching a compromise. The Business Council calls upon the sponsors of the legislation and the interested parties to develop a workable solution.
The Pine Barrens Protection Act 2 amended Article 57, "the Long Island Pine Barrens Maritime Reserve Act" 3 of 1990, to require a comprehensive management plan and provide specific protections for the Central Pine Barrens (CPB) zone and the Core Preservation Area (the Core, approximately 56,836 acres), contained within the CPB. Those portions of the CPB which are not within the Core Preservation Area are referred to as the Compatible Growth Area (CGA, approximately 47,500 acres). The Core is comprised primarily of publicly-owned, protected and preserved open space and parkland owned by New York State, Suffolk County and the three Towns. All construction, development and clear-cutting of trees is prohibited in the Core unless it meets a strict definition of hardship or compelling public need. 4
Inclusion in the Core
This legislation would add over 800 acres in the Core, thus preventing any future use of this property. The Core has been expanded in the past to include additional publicly owned properties through legislative action, most recently with the inclusion of publicly owned lands surrounding the Carmans River. Never has the Core been expanded this significantly with the intent of depriving an owner of private property from the value of their property.
The Pine Barrens Protection Act acknowledges that the inclusion of property in the Core deprives private property owners of the value of that property. The Pine Barrens Protections Act contains a means to compensate private property owners for their loss, through a system of Pine Barrens Credits. Since the program’s inception in 1995, the total acreage that has been include in the Pine Barrens Credits system is 1,987 acres, with an average parcel size of 2.09 acres. Since 1995, 46% of the Pine Barrens Credits remain in private hands. The entirety of the Pine Barrens Credit system has recorded a total of less than $44 million in private sales, which is less than the appraised value of the private property that the legislation would add to the Core. The Pine Barrens Credit system was not intended to address a private parcel this large, and the Credits will not be sufficient to compensate the property owners for their loss.
Rights of Private Property Owners
"A Government is instituted to protect property of every sort...This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own” James Madison 5
The Business Council views the means of acquiring and possessing property as part of the common-law rights and a basic pillar of the free market. The Takings Clause of the Fifth Amendment and Article 1§7 of the New York Constitution provide explicit protections on the taking of private property.
The Takings Clause was well described by the Court more than fifty years ago as "designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. 6 This legislation unequivocally is designed to force a private property owner to bear the public burden.
The Business Council opposes this legislation which violates the spirit of the original Pine Barrens Protection Act and the rights of private property owners. The Business Council supports tax incentives and conservation programs that allow a landowner to voluntarily preserve their land.
1 Armstrong v. United States, 364 U.S. 40 (1960)
2 Chapters 262 and 263 of the Laws of 1993
3 Chapter 814 of the laws of 1990
4 Applies generally only to public agencies such as LIPA, school districts, ambulance districts and municipalities and only granted in extraordinary circumstances of demonstrated public health and safety
5 The Papers of James Madison. Edited by William T. Hutchinson et al. Chicago and London: University of Chicago Press, 1962-77 (vols. 1-10); Charlottesville: University Press of Virginia, 1977-(vols. 11-)
6 Armstrong v. United States (1960)