Search Results for: photo well defined trail

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🌲🌲 Our Public Lands 🌳🌲

Interactive maps with backcountry and roadside camping: New York, Pennsylvania, West Virginia & Vermont.
List of NYS DEC Lean-Tos with map coordinates. List of NYS DEC Firetowers with map coordinates and more information.
Google Spreadsheet with Roadside, Primitive and Pay Campsites

Explore the Finger Lakes Trail, Long Path, Northville-Placid Trail and Long Trail/Appalachian in Vermont.
Catskill Park Mountain Peaks, Hudson Valley & Long Island Peaks, Peaks Over 3000 ft Elevation, Highest Peaks in Adirondacks, Interactive Map of All Named Summits in NYS, Blaze Colors in Catskill Park, Trailhead Parking Coordinates and Addresses in the Catskills.

Browse USGS Topo Quads as PDF πŸ†• by State Lands or County. You can Bulk Download New & Old USGS Topograpic Maps.

Links to various NY State Land Websites πŸ†•. Get latest GIS Data from state Web Services.

β›ΊπŸŒ² Camp πŸŒ²πŸ•

Moose River PlainsCampsite Listing, Maps and photos of state’s largest free camping area.
Piseco-Powley RoadCampsite Listing, Maps and photos of 15 mile dirt road with camping.
Catskill Park Primitive CampsitesAn overview of free camping locations in Catskill Park.
Burnt-Rossman Forest, Cattaraugus County, East Branch Sacandaga River, Finger Lakes National Forest, Madison County, Pennsylvania, Vermont and West Virigina.

Campsite Coordinates for Bog River Flow / Lows Lake, Hudson River SMA (Buttermilk Falls), Lake Lila, Oswegathie River, Nine-Corner Lake, Pharaoh Lake Wilderness, Saranac River Campsites, Stillwater Lake, Schoharie County, and Sugar Hill State Forest.

Overview of Camping Areas in the Catskills, Green Mountains, Southern Adirondacks, Central Adirondacks, Northern Adirondacks, Allegheny National Forest and Penna. DCNR Motorized Campsites and the Monongahela National Forest West Virginia.

Free Campsite Overview Maps: Adirondack – North Country, Catskills, Central NY, Finger Lakes, Western NY. Interactive Map.

Places I camped in 2023, 2022, 2021 and 2020.

🏞 πŸ›Ή Bicycle Trails and “Blackie” My Mountain Bike 🚲 🚢

Finally bought a mountain bike, after chewing over a mountain vs commuter bike. Really enjoying riding my bike to work and when it rains there is always a bike rack to safely take it back home. One way to get to adventures at Thacher Park is the Nature Bus.

Empire Trail – KMZ and Interactive Map. Parking along it.

More Trailways with KMZ files including the Albany County Rail Trail, Black Diamond Trail, Catharine Valley Trail, Catskill Scenic Trail, Fonda, Johnstown & Gloversville Rail Trail, Genesee Valley Trail, Link Trail.

🦌🌲 Hunt πŸ¦ƒπŸΏ

Wildlife Management Units (Deer)KMZ Map shows the WMU boundaries.

Summer 2019 Aerial Photographs of WMUs

KMZ Maps of Deer Harvest Density by Town: 2019, 2018, 2017, 2016. By WMU 2017, 2016, 2015.

KMZ Maps of Buck Harvest Density by Town: 2019, 2018, 2017, 2016. By WMU 2017, 2016

2016 -2019 Deer and Buck Harvest by TownKMZ Spreadsheet with FIPS codes for making your own calculations.

🎣🐑 Fish 🐟🐠

Parking and Access to Trout StreamsAn interactive, downloadable KMZ Map.
Lakes with DEC Contour MapsA KMZ Map links to Contour Maps for Fishing.

πŸŒ¨πŸ” Sled & Wheel πŸš™β„

State Truck Trails Over A Half MileDirt roads to explore in the backcountry.
NYS Statewide Snowmobile Trail SystemState trails on public and private lands.

πŸ“‰πŸ“Š Learn πŸ’΅πŸ“ˆ

Interactive Maps of NY CensusExplore and download KML files.
Charts and Interactive DiagramsFrom population to pollution control.
Andy Arthur GitHubGit my R and Python scripts used to make maps and diagrams.
Use ArcPullR to Get Geospatial DataSuper easy way to connect to get GIS data in R from government servers.
GDAL Opens E00 FilesMost open source programs nowadays can open common geospatial formats.
NY Building FootprintsWhere to find on the internet for making maps.
WMS and ArcMap ServicesDownloadable CSV file listing services used on the blog.
2022 US Census Population EstimatesRed states, south continue to gain population.
2020 Cartogram of State Population

πŸ’³ πŸ› Property Taxes πŸ πŸ’Έ

Properties in Albany Pine Bush Study Area, Excel Files: Various Tax Rolls, Find coordinates and political districts, Look Up State Tax Records and a Script for Processing RPTL 1520 PDFs. Match NY SWIS Codes to FIPS Codes and GEOID

πŸš—πŸš— Big Red πŸš—πŸš—

Big RedPhotos and Videos of my lifted truck with its camper shell. Big Red’s Dual Battery Setup for Camp Power, Video Tour and Diagram. Big Red is getting old. What is next? I’ve thought about going carless for a while to save money and reduce pollution. Or maybe going bigger? Or smaller? Five dollar gas sucks.

πŸ”₯🌲 Off-Grid Living 🏠🀠

I am seriously thinking about building an off-grid house. I have a first draft. I need to learn CAD! I have a road map towards buying land and building. I concede might have to live with long commute and give up traveling and camping. I need to be strong.

Why off grid? Well, I’m not into contemporary society. I want to own land, but not be called a landowner, and a cabin, not hooked to electrical grid, farm, raise pigs for food and burn my own trash. I’m saving for a better tomorrow, hoping to make the leap to another freer state. Having acreage is important. Cornfields aren’t bad neighbors. Maybe though my vision has grown smaller and more local. More on off-grid living.

I am 16 years into my career and have made some significant progress in my life. I love my job. But I do wonder on all the things I’m missing out but saving sure makes me high. Maybe it will be different when I own my own land — the end of goal of all this saving.

2020 into 2021 during the pandemic was a year of remote work. It was a struggle not having internet at home, worked a lot out of my truck. But I worked remotely from Horseshoe Lake which was super cool.

Generally I like the idea of owning land in a red state, particularly Idaho, Iowa, Pennsylvania, West Virginia, Wisconsin — and Midwest more generally. But I may settle for New York – it’s all about the f-ing money!

πŸ’»πŸ‘¨β€πŸ’» Open Source πŸ—ΊοΈπŸ“

I use open source software and public sources of data for the blog. Quantum GIS (QGIS), GDAL/ogr2ogr, PyQGIS, GeoPANDAS, R Studio and Leaflet for map making, Arduino and ESP32 microprocessors, Ubuntu Linux and XFCE Window Manager. I’ve recently gotten interested in machine learning.

I avoid using commercial software like Microsoft Windows and do not have home internet or television. If you don’t use commercial software and use your brain, fears of computer viruses are overblown. I deleted most of my social media accounts.

Creating Digital Surface Models using LiDAR Point Clouds.

πŸ“ŠπŸ—Ί R Statistical Programming πŸ“œπŸ‘¨β€πŸ«

The R programming language and RStudio are powerful tools for statistical analysis, making maps and charts. Many of the blog posts and analysis I do are in R, ggplot not only makes great charts but also maps using tidycensus. Generally, R is better then Python for geospatial work.

Use IDW Interpolation to fill in missing Census data, Zonal Histograms for land cover, load WMS Aerial Photography in R, find mountain peaks, save Census shapefiles using tigris quickly, pull NY Election Night Results using Selenium. Fast reverse Geocoding in PostGIS. Working with PDFs in R. Fix a common error starting rselenium/wdman. Make data-filled calendars. R is wonderful and weird, learn it!

πŸΌπŸ”’ Python and Pandas πŸ’»πŸ

Querying state property database, political enrollments, PL 94-171 Census files, calculating population statistics, what address is a district in, converting old districts to new districts, Shapefiles missing Projection information in QGIS.

Learn to code for free modern HTML, Javascript, Python and SQL at freeCodeCamp and web development at the Odin Project.

🐴 🐘 Politics 🦁 🐍

Crunched Election Results with Turnout for Albany County: November 2023, 2022, 2021, 2020, 2019 and Primaries June 2019, Pres/June 2020, June 2021, June 2022, Aug 2022, June 2023.

Albany County Races converted to the new 2023 EDs using Super EDs and Code: 2022, 2021, 2020, 2019 and Primaries June 2019, Pres/June 2020, June 2021, June 2022, Aug 2022.

Above Election Results as zipped Excel files.

Albany County Legislature Districts 2024 Maps

Maps Comparing 2017 and 2023 Albany County Election Districts and a Crosswalk Table Showing the Proposition of Voting Age Population in New and Old EDs

Maps of 2022 NYC Assembly Races, NYS Assembly Races, NY Senate Races, Governor’s Race in Erie County and Statewide. Partisan shift in governor race between 2010 and 2018.

A comparison of Democratic Performance 2022 Assembly Districts to those proposed in 2023 by the IRC. Here is latest 4/20/23 IRC Maps, showing ADP and how they change from existing Assembly districts. Most towns upstate, outside of cities, are quite red. Using LATFOR data with R to calculate Average Democratic Performance.

You can scrape employee salary data from SeeThroughNY using R. Other useful investigative resources.

I often think politics is for losers. I’m into the politics of statistical analysis and reading history books.

I believe strongly in the first amendment, second amendment, oppose gun restrictions and I support de-funding the police in favor of lower-cost technology and civilian employees. Maybe use red flag laws for voting to stop dangerous voters? And the media should stop promoting mass-shootings, even if it’s super profitable for all involved. They should tax the media when it promotes violence. I think some people are much too paranoid in politics. How elections are rigged under law to benefit incumbents. But vote, it’s the best option and inexpensive.

Yeah for the third parties! I voted for Larry Sharpe for Governor and Jo Jergenson for President but my views are complicated and often vote for Democrats, after voting Jill Stein Green Party in 2016.

Generally, I think Biden has been a good change over DJT and glad the Trump era is over and are glad prosecutors and grand jurors are holding him responsible by indicting him for many serious felonies. I don’t think Trump can win in 2024, as nothing has changed politically from 2020.

I think rural people should be left alone and not worship government workers or have parades for them. I am no fan of Donald Trump, his speeches are bad, I don’t like Trump’s embrace of radical environmentalists, but do admire the homemade roadside monuments to DJT.

I don’t toke. But whatever. There are too many transit authorities.

🌲🌳The Earth 🌎 🐸

Why I oppose wilderness areas and parks. It’s trendy to be green these days, but is eco-marketing good for the planet? I visited the Mount Storm Coal Plant and Corridor H.

I worry about a lot about overly-aggressive Climate Change Action, and Undermining Environment Laws for Climate Action. I think we should all admit we are Addicted to Fossil Fuels. These days, urban recycling has become a joke, when it’s still an option at all. It’s better to just buy less shit and avoid the alure of Costcos. I really don’t like how aging radicals have become industrial solar salespeople.

Big bucks are coming to state-designated disadvantaged communities under the CLCP. Which counties and political districts are in line for the the most pork? Interactive map.

I’m a big of farmers who are essentially Living Off the Earth and think Rednecks are Noble Savages. Dairy Farming are key to our rural landscape. I’d trust a farmer or a hunter in a pile of guts he’s butchered over any ivory-tower scientist.

πŸŒŽπŸ”† Industrial Solar 🌞 🏭

Hundreds of multi-acre industrial solar farms are being built in our state. How bad is solar for the environment? We should ask tough questions. Interactive of recently built solar farms, proposed facilities. List of proposed industrial solar facilities. See how the Greenville Solar Farm changed the landscape.

πŸ’³ πŸ’ΈSaving Money πŸ’° πŸ’·

I am not a fan of ESG Investing as it’s not well diversified. I prefer index-funds and other tax-advantaged ways of saving. Why I am concerned about saving enough for retirement, even though I’m in my late 30s. We as a nation should save more, consume less. I like the idea of carbon tax to replace capital gains taxes to discourage consumption.

πŸ₯¦ 🍎Mission Fifty & Being Healthier 🏠🧠

I am now officially in my 40s! I am building to a better life in my 50s, which means getting up early, walking a lot, saying no to cake and yes to more fruit. In many ways, the forties are an awesome time to be alive.

And eating healthy for less without losing sleep over arsenic. And I don’t think we should subsidize unhealthy habits. How I got started in eating healther. Meals are too focused on meat and carbs due to how we describe them, maybe I eat too many bananas in the office, what to eat while camping, worry more about salt then GMOs, eat more beans. Do spend extra for farmers market peaches, especially doughnut peaches and plums. Consider ethnic supermarkets. Thinking about how to make a healthier macaroni and cheese, spinach-mackeral-pasta salad, quick-cook biscuits and whole-wheat bread. That said, too many recipes are junk food crap. Okay in moderation is not okay. The fact that I’m thinner is not a sign I’m dying.

A few years back I decided to explore my mental illness with therapy, thinking about why I have so much anxiety and how many of my values are rational or just thinking too much rednecks’ burn barrels and how much of a throwaway society we live in. Do I want to change?

I’ve learned to care less about the world, and focus more on myself. Maybe I am happier as I am now, saving and investing a lot towards owning my own land, where I don’t have to deal with all the bullshit of modern life.

Mission Fifty: Getting to the point where I own my own land. 🚜
Healthy Eating 🍎 / Growing My Wealth πŸ’°
Healthy Thoughts πŸ’­ / Enjoying Life πŸ˜ƒ

Questions, comments? Feel free to email me at andy@andyarthur.org.

You do your thing, I’ll do mine.

I use GNU open source software.
Plus I like buck goats,
because they’re real macho men
spraying their beards with goat urine.

March is upon us. Get out, enjoy it, be safe with fire and burning shit, and remember soon enough black flies are waiting.” – Andy Arthur

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Categories:

Laws and Case Law

Highway Law Section 115-A:
Abandonment of County Highways.

Whenever a county road or part thereof constructed as part of the county road system deviates from the line of an existing town highway, or from the line of a former town highway within the limits of an incorporated village, as shown on the map of the county road system, the board of supervisors by resolution duly adopted upon the recommendation of the county superintendent of highways, and pursuant to a written agreement with the town board or village board of trustees, or in the event such an agreement cannot be reached with the approval of the commissioner of transportation, may abandon to the town or the incorporated village as the case may be for future maintenance, that part of the town highway or former town highway within the limits of an incorporated village not improved and modify the map of the county road system accordingly. The portion of any town highway or former town highway within the limits of an incorporated village excluded from the county road system shall be maintained by the town or village in which it is located.

Warning! Road Washed Out

Highway Law Section 205:
Highways Abandoned By Local Governments.

1. Every highway that shall not have been opened and worked within six years from the time it shall have been dedicated to the use of the public, or laid out, shall cease to be a highway; but the period during which any action or proceeding shall have been, or shall be pending in regard to any such highway, shall form no part of such six years; and every highway that shall not have been traveled or used as a highway for six years, shall cease to be a highway, and every public right of way that shall not have been used for said period shall be deemed abandoned as a right-of-way. The town superintendent with the written consent of a majority of the town board shall file, and cause to be recorded in the town clerk’s office of the town a written description, signed by him, and by said town board of each highway and public right-of-way so abandoned, and the same shall thereupon be discontinued.

2. There may also be a qualified abandonment of a highway under the following conditions and for the following purposes, to wit: Where it appears to the town superintendent and said town board, at any time, that a highway has not become wholly disused as aforesaid, but that it has not for two years next previous thereto, been usually traveled along the greater part thereof, by more than two vehicles daily, in addition to pedestrians and persons on horseback, and it shall also appear to the superintendent of highways of the county in which such town is situate that a qualified abandonment of such highway is proper and will not cause injustice or hardship to the owner or occupant of any lands adjoining such highway after such superintendent shall have held a public hearing thereon upon giving at least twenty days’ written notice to such owners and occupants of such lands of the time and place of such hearing, they shall file and cause to be recorded in the town clerk’s office a certificate containing a description of that portion of the highway partly disused as aforesaid and declaring a qualified abandonment thereof. The effect of such qualified abandonment, with respect to the portion of said highway described in the certificate, shall be as follows: It shall no longer be worked at the public expense; it shall not cease to be a highway for purposes of the public easement, by reason of such suspension of work thereon; no persons shall impair its use as a highway nor obstruct it, except as hereinafter provided, but no persons shall be required to keep any part of it in repair; wherever an owner or lessee of adjoining lands has the right to possession of other lands wholly or partly on the directly opposite side of the highway therefrom, he may construct and maintain across said highway a fence at each end of the area of highway which adjoins both of said opposite pieces of land, provided that each said cross fence must have a gate in the middle thereof at least ten feet in length, which gate must at all times be kept unlocked and supplied with a sufficient hasp or latch for keeping the same closed; all persons owning or using opposite lands, connected by such gates and fences, may use the portion of highway thus enclosed for pasturage; any traveler or other person who intentionally, or by wilful neglect, leaves such gate unlatched, shall be guilty of a misdemeanor, and the fact of leaving it unlatched shall be prima facie evidence of such intent or wilful neglect. Excepting as herein abrogated, all other general laws relating to highways shall apply to such partially abandoned highway. This section shall not apply to highways less than two rods in width unless it shall appear to the town superintendent at any time that such a highway has not, during the months of June to September inclusive of the two years next previous thereto, been usually traveled along the greater part thereof by more than ten pedestrians daily.

Any action or proceeding involving the abandonment or qualified abandonment of a highway made pursuant to this section must, in the case of abandonment, be commenced within one year from the date of filing by the town superintendent as provided in subdivision one of this section.

Old NY 30 Signs

Matter of Smigel v. Town of Rennselaer.

As seen on Google Scholar.

MATTER OF SMIGEL v. TOWN OF RENSSELAERVILLE

283 A.D.2d 863 (2001)

725 N.Y.S.2d 138

In the Matter of HENRIETTA SMIGEL, Respondent, v.
TOWN OF RENSSELAERVILLE et al., Appellants.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided May 24, 2001.

Mercure, J. P., Peters, Spain and Carpinello, JJ., concur. Lahtinen, J.

Petitioner is the owner of land bordering the Camp Winsocki Road (hereinafter the road) located in respondent Town of Rensselaerville in Albany County, having acquired title to the property in 1986. In December 1995, petitioner requested that respondents abandon a portion of the road which she had barricaded at both ends in 1986, and which respondent Town Supervisor admitted had not been maintained by respondents for at least 20 years. Her request was continued for further study by the Town Board of the Town of Rensselaerville. In October 1999, petitioner and another petitioned respondents “to abandon a portion of its present easement to [the road].” In January 2000, after a public hearing, respondents refused to abandon the road and passed a resolution finding that the road had not been abandoned through disuse, ordering petitioner to remove all of her barricades, and making the road a seasonal road to be maintained from April 1 to December 1.

In January 2000, petitioner commenced this combined CPLR article 78 proceeding and action for declaratory judgment seeking a judgment clearing her title “as to the portion of her property previously subjected to an easement for the highway,” injunctive relief prohibiting respondents from removing her barriers on the road and trespassing on her property and an order directing respondents to file a certification of abandonment. Respondents answered, asserting that the petition/ complaint failed to state a cause of action.

The parties submitted numerous affidavits and documentary evidence in support of their respective positions and, in April 2000, Supreme Court determined that because no photographs had been submitted by either party, the matter could not be summarily decided, and it therefore set a hearing date to determine whether recreational travel “follows the `lines of the ancient street.'” When the parties appeared on the scheduled hearing date, they were informed that the hearing had been canceled and were directed to leave any photographs that they had with the court for review. Both parties submitted photographs depicting the present condition of the road.* On May 26, 2000, Supreme Court granted the petition/complaint and declared the road to be abandoned. Respondents appeal and we reverse.

Highway Law § 205 (1) provides, in relevant part, that “every highway that shall not have been traveled or used as a highway for six years, shall cease to be a highway.” Once a highway exists, it is presumed to continue until the contrary is demonstrated and the presumption is in favor of continuance (see, City of Cohoes v Delaware & Hudson Canal Co., 134 N.Y. 397, 407; Matter of Van Aken v Town of Roxbury,211 A.D.2d 863, 865, lv denied 85 N.Y.2d 812). The burden of establishing abandonment is on the party claiming that the highway has been abandoned (see, Matter of Faigle v Macumber,169 A.D.2d 914, 915). In that regard, a municipality’s intention regarding a road is irrelevant (see, Daetsch v Taber,149 A.D.2d 864, 865) and its failure to maintain a road does not mean that the road ceases to be a highway (see, O’Leary v Town of Trenton,172 Misc.2d 447, 450). A determination of abandonment of a road by nonuse is a factual determination (see, e.g., Coleman v Village of Head of Harbor,163 A.D.2d 456, 458, lv denied76 N.Y.2d 768; Holland v Superintendent of Highways of Town of Smithtown,73 Misc.2d 851, 852).

It is undisputed that respondents never filed a certificate of abandonment to officially abandon the road. Likewise, it is clear that respondents did not maintain the road nor had the road been used by motor vehicles for more than the statutory six-year period. The narrow question left to be decided after submission of the photographs was framed by Supreme Court as follows: “[i]f the road entrance has been obstructed, and it is unpaved and overgrown with weeds, trees, bushes and shrubs, as claimed by petitioner, making travel along the `lines of the ancient street’ improbable, then even the most active recreational and seasonal use propounded by [respondents], that of snowmobilers, hikers, and bicyclists, would fall short of being highway use” (citing O’Leary v Town of Trenton, supra, at 451; Holland v Superintendent of Highways of Town of Smithtown, supra, at 853).

We find that Supreme Court correctly set forth the applicable law regarding abandonment of a highway through nonuse. After reviewing the photographs submitted by the parties, Supreme Court made the factual determination that the “photographs reveal many years of non-use as a highway” and “it is apparent that the road entrance has often been obstructed, preventing travel along the `lines of the ancient street,'” and summarily granted the relief sought by petitioner. We agree that the photographs show a number of barricades located at various points along the unpaved road, but they also show an ancient road, not overgrown with weeds, trees, bushes or shrubs, but clearly discernible, and not “virtually indistinguishable from the surrounding wooded area” (Matter of Faigle v Macumber, supra, at 916). Indeed, the pictures appear to depict a clearly defined, unpaved roadway through an area overgrown with brush and thick woods on both sides, precluding travel other than on the road, except with extreme difficulty. Our review of the photographs suggests to us that travel over this road by such disparate groups as snowmobilers, bicyclists, cross-country skiers and pedestrians would follow “along the lines of an existing street” (Town of Leray v New York Cent. R. R. Co., 226 N.Y. 109, 113). Moreover, respondents’ submissions reflect that although petitioner had barricaded the road on a number of occasions, those obstructions were either removed or knocked down so as to access its year-round recreational use. Therefore, the recreational uses found by Supreme Court may be sufficient to preclude a finding of abandonment of the road by nonuse. In our opinion, summary judgment should not have been granted in this matter in the absence of clarifying testimony as to the condition and use of the roadway.

Ordered that the judgment is reversed, on the law, without costs, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision.

Red Dirt Road

MATTER OF VAN AKEN v. Town of Roxbury, 211 AD 2d 863.

As found on Google Scholar.

211 A.D.2d 863 (1995) 621 N.Y.S.2d 204 In the Matter of Millard Van Aken et al., Appellants, v. Town of Roxbury et al., Respondents

Appellate Division of the Supreme Court of the State of New York, Third Department.

January 5, 1995 Mikoll, Crew III, Yesawich Jr. and Peters, JJ., concur.

Cardona, P. J.

Petitioners are property owners with residences located in the Town of Roxbury, Delaware County, which extends beyond the roadway presently maintained by respondents as a Town road. On October 20, 1992, petitioners wrote to respondent Town of Roxbury requesting maintenance of the road segment at issue. On November 10, 1992, the Town Attorney responded by requesting evidence that the segment was a Town road. The attorney for petitioners wrote back indicating the reasons the particular segment was a Town highway. When no response was received, petitioner Millard Van Aken asked the Town Supervisor about the status of the request and was told that the Town Attorney was supposed to respond but had been delayed by other matters.

On March 4, 1993, the Town Attorney informed petitioners that if the segment was a Town road it had been abandoned. On July 1, 1993, petitioners commenced this CPLR article 78 proceeding seeking to compel the Town and respondent Town Superintendent of Highways to maintain the road segment pursuant to Highway Law § 140. In their answer, respondents asserted that the proceeding was barred by the four-month Statute of Limitations (see, CPLR 217 [1]). Supreme Court held that the Town was required to make a final binding determination on petitioners’ request before CPLR article 78 review was possible and the Town Attorney’s letter of March 4, 1993 did not constitute a binding determination. Unable to determine 864*864 if or when the Town had taken official action on petitioners’ request, Supreme Court dismissed the petition as either untimely or premature. By letter to the Town Board dated September 30, 1993, petitioners sought a formal vote on their request for maintenance. On October 11, 1993, the Town Board denied their request. Thereafter, petitioners moved for reconsideration, which Supreme Court denied.

Initially, we note that Supreme Court relied upon our decision in Treadway v Town Bd. (163 AD2d 637) in determining the Statute of Limitations issue. We treated the declaratory judgment action in Treadway as a mandamus to review for limitation purposes. However, the present proceeding is in the nature of mandamus to compel rather than mandamus to review. In mandamus to review, the court examines an administrative action involving the exercise of discretion for which no quasi-judicial hearing is required. On the other hand, in mandamus to compel an agency or officer’s performance of a ministerial act, the court examines whether the petitioner possesses a clear legal right to the relief sought and whether the agency or officer has a corresponding nondiscretionary duty to grant the relief requested (see, CPLR 7803 [1]; Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753, 757; see also, Matter of Armstrong v Centerville Fire Co., 83 N.Y.2d 937, 939; Matter of Legal Aid Socy. v Scheinman, 53 N.Y.2d 12, 16).

In Treadway (supra), review was sought of an administrative action in the form of a declaration by the Town Board that the disputed road was not a public road. We held that the four-month Statute of Limitations began to run from that final binding determination. In this case, there is no question but that petitioners made a demand for maintenance to the Town on October 20, 1992. The March 4, 1993 letter from the Town Attorney[*] conveyed the Town’s refusal to perform its ministerial duty to maintain the road (see, Highway Law § 140). Accordingly, the four-month Statute of Limitations began to run at that time (see, CPLR 217 [1]; Matter of Waterside Assocs. v New York State Dept. of Envtl. Conservation, 72 N.Y.2d 1009, 1010; Matter of De Milio v Borghard, 55 N.Y.2d 216, 220; Matter of Pfingst v Levitt, 44 AD2d 157, 159, lv denied 34 N.Y.2d 518; see also, Siegel, NY Prac § 566, at 887 [2d ed]). Therefore, the petition filed on July 1, 1993 was 865*865 within the applicable period of limitations and the proceeding was timely commenced.

Having established that petitioners’ proceeding was timely commenced, we turn now to the merits of their petition. While it is clear that the Town has a legal duty to maintain Town roads (see, Highway Law § 140) and can be compelled to perform such a duty (see, People ex rel. Schau v McWilliams, 185 N.Y. 92, 100), the parties disagree on the fundamental question of whether the road segment at issue was abandoned by the Town and therefore no longer a Town highway. It is undisputed that no certificate of abandonment was ever filed by the Town, as provided for in Highway Law § 205. “Once a road becomes a highway, it remains such until the contrary is shown” (Matter of Shawangunk Holdings v Superintendent of Highways of Town of Shawangunk, 101 AD2d 905, 907; see, Matter of Flacke v Strack, 98 AD2d 881). A highway will be deemed abandoned if it is not traveled or used as a highway for six years (see, Highway Law § 205). The burden of proving such abandonment rests, in this case, with the Town (see, Matter of Shawangunk Holdings v Superintendent of Highways of Town of Shawangunk, supra, at 907).

Respondents have failed to meet their burden of proving that the road segment at issue was not traveled or used as a highway for six years. Although respondents argue that abandonment is shown because of a period of nonmaintenance in excess of 30 years, the law is clear that a highway does not cease to be a highway merely because the Town has failed to service it (see, Hewitt v Town of Scipio, 32 AD2d 734, affd 26 N.Y.2d 934). Nor is it relevant whether the Town intended an abandonment, as it is the substantive facts themselves which establish abandonment (see, Daetsch v Taber, 149 AD2d 864, 865). Petitioners have introduced uncontroverted cartographic and testimonial evidence to support their contention that the road has been and continues to be regularly used and traveled as a highway. We, therefore, find that no genuine issue of abandonment exists and that the contested road segment continues to be a Town road.

Ordered that the judgment and order are reversed, on the law, with costs, and petition granted.

Betty Brook Road

Holland v. SUPT. OF HIGHWAYS, 73 Misc. 2d 851

This case also from Google Scholar.

73 Misc.2d 851 (1973)

Eugene W. Holland, Plaintiff,
v.
Superintendent of Highways of the Town of Smithtown et al., Defendants.

Supreme Court, Special Term, Nassau County.

April 3, 1973 Donner, Fagelson & Hariton for plaintiff. H. Paul King for defendants.

BERTRAM HARNETT, J.

Eugene W. Holland owns property in Smithtown, New York, bordering to the east on a plot of land about 50 feet wide sometimes known as the “Old Smithtown to St. Johnsland Road”. In this declaratory judgment action brought against the Town of Smithtown and its Superintendent of Highways, Mr. Holland now seeks, by summary judgment motion, a declaration that he owns the westerly one half of the land by virtue of State and town abandonment of 852*852 it. Defendants move to dismiss pursuant to CPLR 3211 (subd. [a], par. 10).

Despite some minor disputation, the parties essentially agree that the subject land is not used as a public road for motor vehicular traffic. It is unpaved, blocked off on both ends, and substantially overgrown with trees and shrubbery. Pedestrians and bicyclers occasionally use it as a sort of pathway or shortcut. No material issue of fact appears to prevent a summary disposition. (Sachs v. Real Estate Capital Corp., 31 A D 2d 916; Law Research Serv. v. Honeywell, 31 A D 2d 900.)

Subdivision 1 of section 205 of the Highway Law provides in pertinent part: “Every highway that shall not have been traveled or used as a highway for six years, shall cease to be a highway * * * The town superintendent with the written consent of a majority of the town board shall file, and cause to be recorded in the town clerk’s office of the town a written description, signed by him, and by said town board of each highway and public right-of-way so abandoned, and the same shall thereupon be discontinued”.

The statute does not specify any procedures to be followed in town ascertainment of an abandoned highway, in contrast to the notice and hearing required for a “qualified abandonment” finding. (See Highway Law, § 205, subd. 2.) Any route once declared and used as a highway is presumed to continue as such until shown, by the party seeking a contrary declaration, to have been abandoned. (Hallenbeck v. State of New York, 59 Misc 2d 475, 480; Stupnicki v. Southern New York Fish & Game Assn., 41 Misc 2d 266, affd. 19 A D 2d 921.) The focal determination is essentially a factual one. And, nonuse of only a portion of a highway, while the rest continues to be utilized as a highway, does not result in abandonment, even of the unused portion. (Bovee v. State of New York, 28 A D 2d 1165.)

While at one time the Smithtown to St. Johnsland Road may have been heavily traveled, after its completion in 1917, the portion abutting Mr. Holland’s land has been in substantial disuse since a realignment of the Jericho Turnpike intersection in 1930. The evidence is overwhelming for much more than the past six years the land was not used as a highway. Petitioner and 16 residents in the surrounding neighborhood so attest in sworn statements and the photographs submitted clearly indicate lack of highway activity for many years. Indeed, the town itself uses the easterly half of the old road land as part of a park.

853*853While use as a highway upon appropriate circumstances may encompass less than contemporary expressway traffic of trailer trucks and high-speed automobiles, even the most active use posited by the town, that of pedestrian and bicycle passage, falls far short of being highway use. (Town of Leray v. New York Cent. R. R. Co., 226 N.Y. 109, 113.) Were this activity to create a public easement, the ownership rights of the adjoining fee owner would still remain unaffected. “It is the rule that where an easement only exists in the public that upon abandonment the fee is presumptively in the owners of the adjoining land.” (Stupnicki v. Southern New York Fish & Game Assn., 41 Misc 2d 266, 271, affd. 19 A D 2d 921, supra).

As Judge CARDOZO observed in Barnes v. Midland R. R. Term. Co. (218 N.Y. 91, 98): “If for six years the highway remains closed with the acquiescence of the public, there is an extinguishment of the public right”.

One peculiar wrinkle remains. After the State apparently realized that this portion of the “Old Smithtown to St. Johnsland Road” would be unused because of the mentioned realignment, the Commissioner of the Department of Works, Division of Highways, issued an official order dated July 19, 1932, substituting as part of the official State highway the realigned section for the abandoned section, stating that the unused portion was to be “TURNED OVER to the COUNTY OF SUFFOLK for future maintenance and repair”. The town asserts, in seeking dismissal, that this directive adversely affects Mr. Holland’s fee interest, and further requires the County of Suffolk to be joined as a necessary party.

Mr. Holland’s fee interest, clearly established by his surveyor’s title search of deeds going back over one hundred years, is not disturbed by the State’s order which relates solely to maintenance and care of the discontinued stretch of highway, not to the underlying ownership. Under the State highway system, created in 1908, the State does not own its roads unless prescribed condemnation procedures are first completed. (L. 1908, ch. 330; Highway Law, § 30.) Here, there is no indication of any prior State condemnation. When the Department of Works’ order was issued in 1932, the State’s interest was merely that of a public right of way, limited to its entitlement and obligation to maintain the roads. Accordingly, even if the Commissioner had conveyance power, all that could have been “turned over” to Suffolk County in 1932 was the State’s maintenance right. In this proceeding to determine ownership rights in the land, the county is not, therefore, a necessary or 854*854 indispensable party, particularly where, upon abandonment declaration, and resulting ownership and use vesting in the adjoining owner, he would then assume use, control and maintenance of the land.

Moreover, the purported deed from the county to the town dated July 28, 1930, transferring the 15 feet on each side of the subject parcel to the town only for use as a park or plaza, does not appear to affect the easterly side of the road, not owned at any time by the town. In any event, it could not convey a fee interest that the county did not have.

Finally, the lack of any formal application for a town certificate is not at this stage fatal. The abandonment exists, independent of the town certification, a purely ministerial act. (See People ex rel. De Groat v. Marlette, 94 App. Div. 592, 594.) There are no procedures set forth in the statute indicating who may obtain, and how, the “consent” to abandonment by the Town Board. (Highway Law, § 205, subd. 1.) No reason is suggested why a court, with the town and its Highway Department fully and fairly before it, may not declare the respective rights of the parties so as to resolve the controversy. Exhaustion of administrative remedies is not a prerequisite in an action for declaratory judgment. (Northern Operating Corp. v. Town of Ramapo, 31 A D 2d 822.) Moreover, the town, by fully appearing here and expressing its opposition on the merits in the many forms indicated, has demonstrated that a remand of Mr. Holland’s application to the town would be a futile and superfluous avenue, and has therefore rendered the dispute ripe for judicial determination.

Accordingly, defendants’ motion to dismiss is denied, the plaintiff’s motion for summary judgment is granted, and a declaratory judgment shall be issued declaring the road land abutting plaintiff’s property to be abandoned.

Settle judgment on notice.

A look at the various laws and a few cases relating to the abandonment of highways in NY State.

Section 212 of the State Highway Law

Section 212 of Highway Law.

S 212. Changing location of highways over certain lands owned and occupied by the state. 1. If a highway passes over or through lands wholly owned and occupied by the state, the location of such portion of such highway as passes through such lands may be altered and changed, or the same may be abandoned or the use thereof as a highway discontinued with the consent and approval of the state authority having jurisdiction or control over such lands by an order directing such change in location, abandonment or discontinuance. Such order shall contain a description of that portion of the highway the location of which has been changed, abandoned or discontinued, and a description of the new location thereof, if any, and shall be filed in the office of the state authority having control of such lands.

 Relatively Smooth Section of Crane Pond Road

John J. Kelly v. DEC Commissioner Jorling (1990).

You can read the court case online.

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

November 21, 1990

IN THE MATTER OF JOHN J. KELLY, APPELLANT,
v.
THOMAS C. JORLING, AS COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, RESPONDENT

Appeal from a judgment of the Supreme Court (Dominick J. Viscardi, J.), entered March 29, 1990 in Essex County in a proceeding pursuant to CPLR article 78, which dismissed a petition to prohibit respondent from directing closure of a portion of a road traversing State-owned land in Essex County.

Roemer & Featherstonhaugh (E. Guy Roemer of counsel), for appellant.

Robert Abrams, Attorney-General (Lawrence A. Rappoport of counsel), for respondent.

Kane, J. P. Casey, Mikoll, Yesawich, Jr., and Mercure, JJ., concur.

Author: Kane

OPINION OF THE COURT

Crane Pond Road is a gravel and dirt roadway located in the Town of Schroon, Essex County, of which the last 2 1/2 miles (hereinafter referred to as the road) lead through State-owned lands to the edge of Crane Pond. That part of the Adirondack Forest Preserve surrounding the road was reclassified “wilderness” in 1979 and, in 1987, the road itself was reclassified wilderness. In December 1989, respondent issued an order, pursuant to Highway Law ? 212, closing the road in accordance with the Adirondack State Land Master Plan. Guidelines within that plan called for the closing of roads which impermissibly allowed for the prohibited use by the public of motorized vehicles and equipment in wilderness areas. Petitioner, the Town Supervisor, subsequently commenced this CPLR article 78 proceeding to challenge respondent’s authority to close the road pursuant to Highway Law ? 212. Supreme Court found that respondent possessed such authority and dismissed the petition. This appeal followed.

We affirm. Petitioner apparently does not question respondent’s jurisdiction over the lands at issue or the State’s power to close the road, but instead challenges the specific statutory authority pursuant to which respondent ordered said closing. Highway Law Sec 212 was amended in 1988 to read as follows: “If a highway passes over or through lands wholly owned and occupied by the state, the location of such portion of such highway as passes through such lands may be altered and changed, or the same may be abandoned or the use thereof as a highway discontinued with the consent and approval of the state authority having jurisdiction or control over such lands by an order directing such change in location, abandonment or discontinuance. Such order shall contain a description of that portion of the highway the location of which has been changed, abandoned or discontinued, and a description of the new location thereof, if any, and shall be filed in the office of the state authority having control of such lands.” The 1988 amendment eliminated the need for the Commissioner of Transportation to issue the order of closure (see, L 1988, ch 161, ? 2), essentially leaving that decision to the State agency having appropriate jurisdiction (see, mem of State Dept of Transp, 1988 McKinney’s Session Laws of NY, at 1980-1981). Petitioner argues that the express language of the statute does not specifically authorize respondent to issue an order of closure and that no such power may properly be inferred therefrom. We disagree.

The primary consideration of statutory construction is legislative intent (see, Matter of Long v Adirondack Park Agency, 76 N.Y.2d 416, 422; Hudson City Savs. Inst. v Drazen, 153 A.D.2d 91, 93; see also, McKinney’s Cons Laws of NY, Book 1, Statutes ? 92), and courts are to avoid a literal construction when it leads to either a frustration of the over-all design of the Legislature (see, McKinney’s Cons Laws of NY, Book 1, Statutes ? 111) or an ineffectually absurd result (see, Matter of Long v Adirondack Park Agency, supra, at 421; see also, McKinney’s Cons Laws of NY, Book 1, Statutes ?? 144, 145). The legislative intent behind Highway Law ? 212 was to permit the State to close roads on State lands that endangered a State purpose (see, Matter of Altona Citizens Comm. v Hennessy, 77 A.D.2d 956, 957, lv denied 52 N.Y.2d 705). Adopting petitioner’s view, that respondent has the power to consent to and approve the closing of a roadway but does not possess the authority to order its closure, would eviscerate the statute and render it meaningless. In our view, the statute’s expressed intent provides an ample basis and rationale to conclude that “the state authority having jurisdiction or control over [state] lands” (Highway Law ? 212) is empowered to issue orders effectuating that authority. Accordingly, respondent’s order was a valid exercise of the statutory power given to the appropriate State agency pursuant to Highway Law ? 212.

Disposition

Judgment affirmed, without costs.

North Up to Piseco-Powley

In the Matter of the Alleged Violations by JAMES W. McCULLEY, Respondent. (2009)

This is an excerpt of relvant portions of this adminstrative law decision.

2. Department’s Jurisdiction To Regulate Motor Vehicle Traffic Over Old Mountain Road

Department staff contends that the portion of Lot 146 owned by the State is part of the forest preserve. Accordingly, staff asserts jurisdiction to regulate motor vehicle traffic over that portion of Old Mountain Road that crosses State-owned land.

Department staff has established that the State-owned portion of Lot 146 is part of the forest preserve. It is undisputed that the State acquired the northern half and southeastern quarter of Lot 146 in 1875 (see Deed, Department Exh 48, at 556). The forest preserve was subsequently created by chapter 283 of the Laws of 1885, which provided in relevant part:

“All lands now owned or which may hereinafter be acquired by the state of New York within the counties of . . . Essex . . . shall constitute and be known as the forest preserve.”

(L 1885, ch 283, § 7). Chapter 283 is now codified at ECL 9- 0101(6). Thus, the State-owned portion of Lot 146 was and remains part of the forest preserve.

The existence of Old Mountain Road as a public right of way, however, pre-dates the State’s ownership of Lot 146. In the 1810 legislation appropriating money for the repair of Old Mountain Road, the State Legislature declared the road to be a “public highway” (L 1810, ch CLXXVII, § I). Because the Legislature did not provide for acquisition of the fees underlying the public highway, the public acquired merely an easement of passage, the fee title remaining in the landowners (see Bashaw v Clark, 267 AD2d 681, 684-685 [1999]). Thus, when the State acquired its portion of Lot 146 from the prior landowner, it did so subject to a public highway in the nature of an easement (see id.; see also Matter of Moncure v New York State Dept. of Envtl. Conservation, 218 AD2d 262, 267 [1996] [when the Department acquires forest preserve lands burdened by a leasehold, the Department takes such property subject to that leasehold]).

Department staff asserts that subsequent statutory law vests the Department with jurisdiction over public rights of way crossing forest preserve land. Accordingly, citing the Vehicle and Traffic Law, Department staff asserts that it has the power to “prohibit, restrict or regulate” motor vehicle traffic on any highway under its jurisdiction, including Old Mountain Road (see Vehicle and Traffic Law [“VTL”] § 1630). Pursuant to section 1630, Department staff claims it has the authority to close Old Mountain Road to motor vehicle traffic while allowing pedestrian and other forms of non-motorized traffic (see Adirondack Park State Land Master Plan [updated June 2001], DEC Exh 17, at 66 [indicated that Old Military Road has been closed]).

Respondent, on the other hand, argues that Old Mountain Road was and remains under the jurisdiction of the Towns of North Elba and Keene. 3 Thus, respondent contends that the exception under 6 NYCRR 196.1(b) for roads under the jurisdiction of a town highway department applies in this case (see 6 NYCRR 196.1[b][1]). Respondent contends that the exception for public rights of way over State land also applies (see 6 NYCRR 196.1[b][5]).4

VTL § 1630 does not itself vest in the Department jurisdiction over any particular highway. Whether a State agency has jurisdiction to regulate motor vehicle traffic pursuant to section 1630 depends upon whether that agency is otherwise authorized by law to regulate the use and management of the public highway at issue (see People v Noto, 92 Misc 2d 611, 612- 613 [1977]; see also Highway Law § 3)

On this motion, it cannot be determined, as a matter of law, which entity has jurisdiction to regulate the use and management of Old Mountain Road. When the New York State Legislature declared Old Mountain Road to be a public highway in 1810, it provided that after an initial four-year period of repair and improvement by a commissioner specially appointed for that purpose, the maintenance of the road would be assumed by the several towns through which it passed (see L 1810, ch CLXXVII, § III). Thus, at the time the State acquired Lot 146, subject to the public right of way, that right of way was apparently a town road under the jurisdiction of the Town of Keene and later the Town of North Elba (see Highway Law § 3[5]).5

Nothing in the submissions on this motion allow me to conclude, as a matter of law, that jurisdiction to regulate the use and management of Old Mountain Road has transferred from the Towns of North Elba and Keene to the Department. To the contrary, conflicting statutory provisions and circumstantial evidence require further legal argument and evidentiary proof before such a determination can be made.

For example, in support of Departmental jurisdiction to regulate traffic, Department staff notes that when the powers of the Conservation Department were revised in 1916, the “free use of roads” provision from the 1885 law limiting the forest commission’s power to prescribe rules and regulations for the forest preserve, was eliminated (see L 1916, ch 451). Staff further notes that the current ECL and Executive Law provisions authorizing the Department to make necessary rules and regulations for the protection of the forest preserve generally, and the Adirondack Park specifically, contain no limitation on regulating the free use of roads (see ECL 9-0105[3]; Executive Law § 816). However, although the Department has the power to regulate uses of the forest preserve generally, and the Adirondack Park specifically, it does not necessarily follow that such power includes the authority to regulate public rights of way under the jurisdiction of other State entities or municipalities.

In contrast, legislation adopted subsequent to 1916 suggests that the Department was not vested with the power to regulate use and maintenance of highways in the forest preserve. In 1924, the former State Commission of Highways was granted the power to maintain existing State and county highways in the forest preserve (see L 1924, ch 275). In 1937, town superintendents were expressly granted the right to occupy a right of way over State lands as may be required in the maintenance or reconstruction of town highways that cross those lands, subject to the approval of the Superintendent of Public Works and the Conservation Commissioner (see L 1937, ch 488). The grant of a right of way over State land to maintain and repair town highways strongly implies that towns retained jurisdiction over town highways in the forest preserve, notwithstanding the Department’s grant of authority to regulate the forest preserve generally (see Flacke v Town of Fine, 113 Misc 2d 56 [1982]).

Department staff also points out that Old Mountain Road has not appeared on either the Town of North Elba or the Town of Keene inventory of town highways. The evidence on this is equivocal, however. Old Mountain Road has not appeared on any inventory of State or county highways either (see L 1921, ch 18 [designating system of State and county highways]). On the other hand, Old Mountain Road did appear on a 1935 Highway Survey Commission map, although its status as a State, county or town highway is not indicated (see Department Exhs 51-53).

Respondent provides some circumstantial evidence suggesting that the Towns of North Elba and Keene retain the jurisdiction to regulate traffic on Old Mountain Road. For example, in 1971, the Town of North Elba adopted a resolution, which is still in effect, regulating the use of snowmobiles on Old Mountain Road (see N. Elba Ordinance [2-12-71], Affidavit of Norman Harlow, Highway Superintendent, Town of North Elba, Exh B). Respondent also provides letters dated June 7 and November 13, 1996, respectively, from Mr. Tom Wahl, former Department Regional Forester, expressing the opinion that Old Mountain Road remains a town highway (see Respondent Exhs 16 and 17).

Finally, research reveals some authority suggesting that Old Mountain Road is under the jurisdiction of predecessors to the Department of Transportation (see People v Paul Smith’s Elec. Light and Power and R.R. Co., Sup Ct, Essex County, July 29, 1953, Imrie, J., Decision, at 3-4, 6; 1950 Opn of the Atty Gen 153-154). Whether the portions of Old Mountain Road at issue here are subject to the above authorities, however, is unclear at this time.

In sum, legal and factual issues exist concerning whether the Department has jurisdiction under VTL § 1630 to regulate motor vehicle traffic on Old Mountain Road that require further hearings and legal argument.

3. Request for Relief Pursuant to Highway Law § 212

In its motion for order without hearing, Department staff requests an order of the Commissioner declaring Old Mountain Road between the eastern and western boundaries of the Sentinel Range Wilderness Area closed to all motorized vehicles and motorized equipment. Among the statutory authorities staff relies upon for this request is Highway Law § 212.

Highway Law § 212 provides:

“If a highway passes over or through lands wholly owned and occupied by the state, the location of such portion of such highway as passes through such lands may be altered and changed, or the same may be abandoned or the use thereof as a highway discontinued with the consent and approval of the state authority having jurisdiction or control over such lands by an order directing such change in location, abandonment or discontinuance”

The Department is the State authority with jurisdiction to order abandonment or discontinuance of roads over forest preserve lands in order to protect a relevant State interest (see Matter of Kelly v Jorling, 164 AD2d 181 [1990], lv denied 77 NY2d 807 [1991]; see also Matter of Altona Citizens Comm., Inc. v Hennessy, 77 AD2d 956, lv denied 52 NY2d 705). Such authority includes the power to order the discontinuance or abandonment of town highways (see id.).

Department staff does not address this request for relief in its brief in support of its motion. Nevertheless, to the extent Department staff contends that the Department has already closed Old Mountain Road pursuant to Highway Law § 212, I conclude that triable issues exist before the requested relief may be granted. Staff supplies no evidence that a Departmental order pursuant to Highway Law § 212 has been filed with respect to that portion of Old Mountain Road that is at issue in this case. Accordingly, to the extent Department staff relies upon such a closure order in support of the violation alleged against respondent, staff has not established a prima facie case.

With respect to abandonment, an order of closure is not required to deem a public right of way extinguished by operation of law if the highway has in fact been abandoned by the public for six years or more (see Matter of Wills v Town of Orleans, 236 AD2d 889, 890 [1997]). However, the record reveals triable issues of fact concerning abandonment (see Matter of Smigel v Town of Rensselaerville, 283 AD2d 863, 864 [2001] [a determination of abandonment is a factual determination]).

Pedestrian use and even recreational use may support a finding of non-abandonment, even if a highway has not been subject to motor vehicle traffic, as staff alleges in this case (see Town of Leray v New York Cent. R. Co., 226 NY 109 [1919] [pedestrian use may preserve highway though vehicles are barred]; Matter of Smigel, 283 AD2d at 865 [recreational use may preclude finding of abandonment]). The record contains conflicting evidence concerning the degree to which the public has continued to use the road, thereby necessitating a hearing on abandonment.

With respect to discontinuance, assuming Department staff is seeking a prospective order from the Commissioner, such a prospective order would not support the violation alleged here. Moreover, it is not clear what findings, if any, the Commissioner must make and whether such an order can be issued on the present record. Again, Department staff does not address this item of relief in its brief. Accordingly, the request for a prospective order of closure pursuant to Highway Law § 212 is denied, without prejudice.

 Purple Flowers Along Otter Brook Road

Adirondack Council Press Release (2009).

You can read it here.

ADIRONDACK COUNCIL CALLS ON ENCON COMMISSIONER GRANNIS TO CLOSE FOREST PRESERVE ROADS IN WAKE OF JUDGE’S DECISION

Administrative Judge Declares Former Town Road in State Wilderness Area to be Open for Motorized Use; Grannis Should Re-Close it and Any Others Affected

For more information:
John F. Sheehan
518-432-1770 (ofc)
518-441-1340 (cell)

Released: Thursday, May 21, 2009

LAKE PLACID, N.Y. – The Adirondack Council today called on NYS Department of Environmental Conservation Commissioner Peter Grannis to use his administrative authority to re-close a former road in an Adirondack Wilderness Area that was opened to motorized traffic today by a state administrative law judge.

“It appears from the judge’s decision that the state didn’t properly close this road when it assumed ownership of it and converted it to a hiking, ski and horse trail,” said Adirondack Council Executive Director Brian L. Houseal. “But today’s decision doesn’t have to be the final word on the matter.

“Commissioner Grannis has the authority to use the NYS Vehicle and Traffic Law to prohibit the use of motorized vehicles on this and other roads that are affected by this decision,” Houseal explained. “We urge Commissioner Grannis to begin that process right away. He should have done so today, as this decision was announced, to avoid the chance that someone is already out there riding a jeep or an all-terrain vehicle on this road.

“It is also imperative that the DEC issue its ATV Policy for state lands, which was first announced by Commissioner Erin Crotty during the Pataki Administration,” Houseal said. “DEC cannot allow fragile wildlife habitat and water quality to suffer in New York’s premiere Wilderness Park due to DEC’s inability to complete its work in a timely way.”

Commissioner Grannis can act right now to stop motorized traffic in off-limits locations in the Adirondack Park by exercising NYS Highway Law Section 212, Houseal said,

NYS Highway Law Section 212:

§ 212. Changing location of highways over certain lands owned and occupied by the state. If a highway passes over or through lands wholly owned and occupied by the state, the location of such portion of such highway as passes through such lands may be altered and changed, or the same may be abandoned or the use thereof as a highway discontinued with the consent and approval of the state authority having jurisdiction or control over such lands by an order directing such change in location, abandonment or discontinuance. Such order shall contain a description of that portion of the highway the location of which has been changed, abandoned or discontinued, and a description of the new location thereof, if any, and shall be filed in the office of the state authority having control of such lands.

“If Commissioner Grannis doesn’t make use of Section 212, today’s decision could turn into a disaster for the natural character of the Adirondack Park,” Houseal explained. “There are more than one million acres of protected, roadless Wilderness in the Adirondack Park. It represents nearly 85 percent of all roadless, wilderness forest lands in the eastern United States. Yet, it is only 1/30th of New York State’s total land area – very rare.

“Opening these roads to motorized traffic will harm wildlife, water quality and the peaceful nature of the last big place left in the Northeast where you can escape the noise and pollution of motorized traffic,” he said.

Under the Adirondack Park State Land Master Plan, approved by the Legislature in 1972, all motorized or mechanized travel is banned by state law in Adirondack Wilderness Areas, including mountain bikes.

Another 1.5 million acres of the public Adirondack Forest Preserve is classified as Wild Forest, where motorized traffic is allowed on some designated highways, but not in sensitive areas. Today’s ruling could be interpreted to mean that any road that was never lawfully abandoned to motorized traffic is now open, regardless of its classification as Wilderness or Wild Forest.

The Adirondack Council is a privately funded not-for-profit organization dedicated to ensuring the ecological integrity and wild character of New York’s 9,300-square-mile Adirondack Park. The Council carries out its mission through research, education, advocacy and legal action. The Council has members in all 50 United States and on four continents.

Tiny Roadside Campsite

Resolution from Adirondack Assocation of Towns (2010).

From their 2010 Adirondack Towns Association Resolution Book.

RESOLUTION REQUESTING AMENDMENT OF HIGHWAY LAW SECTION 212 BACKGROUND OF RESOLUTION

The State of New York has closed Town roads in the Adirondacks without the consent and against the wishes of the involved Towns. Highway Law Section 212 which has been interpreted by the courts to authorize the Commissioner of the Department of Environmental Conservation to close roads by Commissioner’s order should be repealed or amended to remove that authority, because it does not provide due process to residents and the involved Towns. The remaining provisions of the Highway Law provide a procedure for towns to close abandoned town roads and to discontinue maintenance on roads which do not provide access to structures by declaring them to be “Qualified Abandoned”.

Whereas, Highway Law Section 212 entitled “Changing location of highways over certain lands owned and occupied by the state” provides as follows:

“If a highway passes over or through lands wholly owned and occupied by the state, the location of such portion of such highway as passes through such lands may be altered and19 changed, or the same may be abandoned or the use thereof as a highway discontinued with the consent and approval of the state authority having jurisdiction or control over such lands by an order directing such change in location, abandonment or discontinuance. Such order shall contain a description of that portion of the highway the location of which has been changed, abandoned or discontinued, and a description of the new location thereof, if any, and shall be filed in the office of the state authority having control of such lands.”

Whereas, the Appellate Division held in Altona Citizens Committee, Incorporated v. Hennessy, 77 AD2d 956 (3rd Dept., 1980) that “Section 212 as originally adopted, related to closing or changing the location of highways passing over lands wholly owned and occupied by the State for farm or prison purposes (L. 1920, ch. 558, s 1). In 1924, the statute was amended to permit the application of the statute to State lands without regard to their use (L. 1924, ch. 141). The removal of the restriction that only prison or farm lands were covered by the statute indicates a legislative intention that closure be permitted whenever a State purpose is endangered by a roadway on State land. To effectuate this intention of the Legislature the occupancy requirement of section 212 of the Highway Law should be given a liberal construction.”

Whereas, the State used Section 212 to close a road in the Town of Altona in the 1970s despite the fact that the State did not occupy the land and despite the fact that the land was occupied by the Ganienkeh group of Indians; and Whereas, the State used Section 212 to close a road in the Town of Wells in the 1970s (see Town of Wells v. New York State Department of Transportation, 90 Misc2d 535 [Sup. Ct. Hamilton County, 1977]); and

Where as, in December 1989 the Commissioner of the Department of Environmental Conservation ordered the closure of a well traveled town road (Crane Pond Road) in the Town of Schroon pursuant to Section 212, without the approval and despite the opposition of the duly elected officials of the Town of Schroon, (see Kelly v. Jorling, 164 AD2d 181 [3rd Dept., 1990]); and

Whereas, the New York State Department of Environmental Conservation proposes in the Silver Lake Unit Management Plan recently approved by the Adirondack Park Agency to “work with the Town of Wells”: to close the West River Road in the Town of Wells; and

Whereas, the Town Board of the Town of Wells is adamantly opposed to the closure of West River Road and wishes to continue to maintain it and to keep it open to the traveling public as it has been open for many decades; and

Whereas, Highway Law Section 212 as it currently exists; and as it has been interpreted, is a threat to the authority of the duly elected officials of the Town of Wells and their ability to maintain their transportation system; and20

Whereas, Section 212 also constitutes a threat to every town and village in the Adirondacks which has a town and village road passing through state lands,

NOW, THEREFORE, it is hereby RESOLVED that the Adirondack Association of Towns and Villages hereby requests that a bill be introduced in the New York State Legislature to amend Section 212 to make it clear that Section 212 may not be used by the State to close town and village roads in the Adirondacks, except where the lands are occupied and used by the State for prison or farm purposes as Section 212 provided when originally enacted.

CURRENT STATUS: DEC Commissioner Grannis dismissed an enforcement proceeding in Essex County against an individual driving on a road that the DEC had said was Forest Preserve on the ground that it had not been demonstrated that the road was an abandoned road or that the road was not a legal right-ofway for public use. The decision of Commissioner Grannis supports the town’s position that the DEC does not have the authority to close town roads that the town has continually maintained and does not wish to abandon.

Milepost 6 on Plains Road

Assemblywomen Sayward’s Bill Limiting Section 212 to Areas Outside of Adirondack Park (2011).

                STATE OF NEW YORK
        ________________________________________________________________________
 
            S. 343                                                    A. 149
 
                               2011-2012 Regular Sessions
 
                SENATE - ASSEMBLY
 
                                       (Prefiled)
 
                                     January 5, 2011
                                       ___________
 
        IN  SENATE — Introduced by Sen. LITTLE — read twice and ordered print-
          ed, and when printed to be committed to the Committee  on  Transporta-
          tion
 
        IN  ASSEMBLY — Introduced by M. of A. SAYWARD — read once and referred
          to the Committee on Transportation
 
        AN ACT to amend the highway law, in relation to changing the location of
          highways over certain lands owned and occupied by  the  state  in  the
          Adirondack park
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Section 212 of the highway law, as amended by  chapter  161
     2  of the laws of 1988, is amended to read as follows:
     3    §  212.  Changing  location  of  highways over certain lands owned and
     4  occupied by the state. 1. If a highway  passes  over  or  through  lands
     5  wholly  owned and occupied by the state, the location of such portion of
     6  such highway as passes through such lands may be altered and changed, or
     7  the same may be abandoned or the use thereof as a  highway  discontinued
     8  with the consent and approval of the state authority having jurisdiction
     9  or  control  over  such  lands  by  an  order  directing  such change in
    10  location, abandonment or discontinuance.  Such  order  shall  contain  a
    11  description  of  that  portion  of the highway the location of which has
    12  been changed, abandoned or discontinued, and a description  of  the  new
    13  location  thereof, if any, and shall be filed in the office of the state
    14  authority having control of such lands.
    15    2. The provisions of this section shall not apply to any highway with-
    16  in the Adirondack park, as defined in subdivision one of section  9-0101
    17  of the environmental conservation law.
    18    § 2. This act shall take effect immediately.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01285-01-1