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March 15, 2019 Morning

Good morning! Happy Ides of March ✝! Good weather today for those friendly strangers cruising in their black sedans with the windows down. Ten weeks until Memorial Day Weekend. Black flies will be here before you know it. 🐜 Cloudy and 54 degrees in Delmar. ☁ Breezy, ️16 mph breeze from the south 🌬 . The dew point is 45 degrees. Temperatures will drop below freezing at tomorrow around 9 pm. ☃️

Nice mild morning, although certainly a little bit damp and cloudy. ☁ I think 💭 the rain ☔ has stopped, but I see more coming on the radar. But didn’t impact my walk down to the express bus.🚶 Caught the express bus 🚍 downtown from the Park and Ride. 🚏Brand new bus, has only 3,000 miles on it according to the driver, probably just from taking delivery. I’ve heard that many of the buses are driven rather than loaded on train to get from California. Gives them a chance break in the engines and buses are so large they’d be expensive freight to ship any other way. ✉ Maybe though I’m wrong. 😕 Some traffic 🚥 delays heading downtown but I get to enjoy the toxic 💀new bus smell.

Finally a nice warm day. I opened the windows this morning to let some fresh air. Not super warm yet but it’s warm enough that the heat hasn’t run for a day now. 🔥 Good for my budget for sure. 💵 As much work as wood heat may be I do like the idea 💡 of spending money on sweat rather than fossil fuels. Eventually I’ll be able to leave the windows open for good. 🍃 I almost thought about hanging out my flag but this morning ain’t that great.

Today will have showers likely and possibly a thunderstorm before noon, then a chance of showers. Cloudy, then gradually becoming mostly sunny 🌦, with a high of 64 degrees at 3pm. 20 degrees above normal, which is similar to a typical day around April 28th. Yeap, it’s going to feel like a late April day. Going to be nice with all that fresh air in the apartment. Maximum dew point of 51 at 11am. South wind 10 to 16 mph. Chance of precipitation is 60%. New precipitation amounts of less than a tenth of an inch, except higher amounts possible in thunderstorms. A year ago, we had partly cloudy in the morning, which became mostly sunny by afternoon. The high last year was 39 degrees. The record high of 72 was set in 1989. Probably not going to break that record. 10.4 inches of snow fell back in 1916.❄ And certainly not that one. 😂

The sun will set at 7:02 pm with dusk around 7:30 pm, which is one minute and 10 seconds later than yesterday. 🌇 At sunset, look for clearing skies 🌧 and temperatures around 57 degrees. There will be a west breeze at 8 mph. Today will have 11 hours and 56 minutes of daytime, an increase of 2 minutes and 54 seconds over yesterday.

I put some cold beer in the fridge that I got left over Brooklyn Night. Going to sit out back after work, next to the snow bank and drink 🍻 some beer after work. I might also go for a walk to the park for a while too. I thought about grilling the frozen burger 🍔 I have on my grill but I don’t have any hamburger buns and I’m kind of in a rush to get down to the park ⛲ before dark.

Tonight will have a slight chance of showers before midnight. Mostly cloudy 🌧, with a low of 37 degrees at 6am. 11 degrees above normal, which is similar to a typical night around April 13th. West wind 7 to 11 mph. Chance of precipitation is 20%. In 2018, we had mostly clear in the evening, which became partly cloudy by the early hours of the morning. It got down to 25 degrees. The record low of 4 occurred back in 1980. I like record lows above freezing.

Today in 44 BC, Julius Caesar, Dictator of the Roman Republic, is stabbed to death by Marcus Junius Brutus, Gaius Cassius Longinus, Decimus Junius Brutus, and several other Roman senators🔪 on the Ides of March. And of course that pop group the Ides of March released their hit single, Vehicle. 🎤🎵📀 Vehicle would go on to be one of the fastest growing pop hits of all times, an immediate success in March and April 1970, well until the Candian Rock Band, The Guess Who released American Women in mid-April, saturating the air play. Vehicle was quickly forgotten about although the oldies stations still play it a lot, because it is kind of a rocking good song. 🎛 Heck, I still like to turn it up, almost 50 years later — and it was an old song when I was born in 1983.

One month 📅 from now will be Tax Day 💰. I filed my taxes, but they got kicked back in the software, as I need to amend something that I made a mistake on. It’s actually good, the mistake is in my favor, not in the governments favor, so I’ll end up paying less. No fine, it’s just I made typo in my reporting which made my adjusted gross income look higher then it actually was. So many numbers you have to enter now that I’ve gotten older and done more on investing for my future.🏡

That said and the lower heating bills are going to be big help. 🔥 I’m really hoping over the next month I will only be using the heat modestly, as it’s now gotten to the point where it’s fairly mild — days in the 30s and 40s are much easier on the heating bills compared to 20s and 30s, especially as I tend to keep my heat set to around 50 in this weather. I can’t wait until the windows can be open for good ⏹ even if it means hot and sticky evenings. Their is cold beverages for that weather.🍹

Tomorrow will be partly sunny 🌞, with a high of 42 degrees at 3pm. Two degrees below normal, which is similar to a typical day around March 11th. Breezy, with a west wind 14 to 20 mph, with gusts as high as 33 mph. A year ago, we had partly cloudy in the morning, which became mostly sunny by afternoon. The high last year was 32 degrees. The record high of 82 was set in 1990. 13.4 inches of snow fell back in 1956.❄ Sunday will be mostly sunny, with a high near 38. West wind 9 to 14 mph. ☀ Typical average high for the weekend is 44 degrees.

Not totally sure what my weekend plans will be, but I will probably stay in town, maybe go for a walk in the neighborhood. I’m not sure that this point if I am going to head into the city this weekend to keep working on Mr. Wolcott’s files 🗄as the St. Patricks Day parade will tie up things downtown, and Sunday I’m going out hiking. I got to look into the bus schedule more and think 🤔 about it some more.

Still haven’t installed the replacement battery 🔋 into my phone yet. Maybe later on this evening or tomorrow morning. I just want to make sure I can get it fully charged before using it. I just hate how fast things discharge on my phone now. 📱

In four weeks on April 12 the sun will be setting at 7:34 pm,🌄 which is 32 minutes and 7 seconds later then today. In 2018 on that day, we had rain showers, partly cloudy and temperatures between 54 and 29 degrees. Typically, you have temperatures between 57 and 36 degrees. The record high of 84 degrees was set back in 1977.

Looking ahead, Tax Day 💰 is a month away, Memorial Day Weekend Starts 🏕️ is in 10 weeks and Dog Days of Summer 🌻 is in 16 weeks.

March 15, 2017 Morning

Good morning! Happy Ides of March. Hopefully the friendly strangers with their black sedans won’t get stuck in the snow. Those old, low body rear wheel cars are pigs in the snow. Their heaters kind of suck too. Partly cloudy and 15 degrees in Delmar, NY. Breezy, 17 mph breeze from the west-northwest. The current wind chill is -3. Bitterly cold after yesterday’s faux blizzard, as I listen to the Ides of March’s Vehicle.

Today will have scattered snow showers, mainly after 9am. Areas of blowing snow. Mostly cloudy, with a high of 24 degrees at 3pm. Only 20 degrees below normal. Maximum wind chill around -3 at 7am; Breezy, with a west wind 17 to 25 mph, with gusts as high as 39 mph. Chance of precipitation is 50%. Total daytime snow accumulation of less than a half inch possible.

A year ago, we had cloudy skies and a high of 58 degrees. Back when it was fun to celebrate the Ides of March. The record high of 72 was set in 1989. Not today. 10.4 inches of snow fell back in 1916.

Winter must die eventually. Five weeks to the Average High is 60.

Percentage of Sedans that are Black

Today is the Ides of March, who in 1970 made famous the idea of the friendly stranger in the black sedan in their song Vehicle, inspired by anti-drug pamphlets passed out to high-schoolers warning about such things.

So I thought the world needed maps of places in New York State where there is a high percentage of sedans registered that are painted black. Black sedans are particularly popular in the Bronx and Westchester, but also in New York City more generally.

Protest is Important

I believe that democracy functions best when there is a wide variety of ideas, and that people are allowed to peacefully protest to communicate their views. Protest is an important part of our democracy, it allows people to communicate their message, and also provides a method of publicly venting frustration over dysfunction in government. In democracy, there are always winners and losers, and not everybody can get their way. But they can voice their opinions.

I dislike anybody who condemns either those who protesting for or against the removal of the General Robert Lee monument. Certainly there are arguments on both side of the monument debate. He’s a historical figure, a very successful general, who ended up fighting on the losing side of the war. Industrialization and the big cities of the north won. Slavery and the other agrarian traditions of the south lost. But he was joined by millions of other Americans that agreed with him, and in the south, succession was the widely supported choice. On the other hand, I can understand why many African Americans feel a monument to General Robert Lee is deeply offensive, and they would like it removed from their city. Many African Americans view the monument as a tacit endorsement of slavery, segregation, and other racist and outdated ideas. They are on the winning side of the battle; they got the local government to agree to remove it.

I’m not one to take stand on the issue, except to defend the right to protest. I get why the pro-statue and anti-statue activists are marching. I think it’s good that their voices are being heard, and the debate is being furthered. Many historical statues in our country are old and represented dated values, and we should reconsider their placement on our public grounds. Even long revered public figures have their flaws – indeed the Phillip Sheridan statue in Albany isn’t without it’s criticism. He burned whole villages, turned his forces against civilians and murdered whole tribes of Native Americans. We need more review of outdated statues in public places, with replacement with more contemporary figures that are closer to today’s values. Statues and the outdated values they represent shouldn’t last forever. I am certainly not against one participating in politics if they so choose. It’s important the public’s voice is heard in its governance. Certainly, the pro-statue position is not a popular one, especially in the north, when for so many generations people have been taught that the actions of the south were evil.

Protests shouldn’t be allowed to spill into violence. That’s why we have laws and police that enforce the laws that prohibit violence and punish those who engage in violence. But like it or not, protests often bring together angry minds, and sometimes violence occurs at protests. Police can’t break up a lawful assembly, and indeed they can only watch and discourage violence. Protesters do need to take a deep breath, follow the laws that are currently in effect, and peacefully protest. Every city has sidewalks, parks, greens, and other public spaces where like minded people can get together an assemble. When you take a stand on an issue, there is likely to be somebody on the opposition.

While protests go on, life in an city grinds on. Protesters should refrain from unlawful crossings and blocking of streets, and should they interfere with either pedestrian or motor vehicle traffic, they must either be asked to move or be prosecuted for disorderly conduct or other offenses. Protesters can not be allowed to stop traffic, especially when emergency vehicles need to get through. Protesters should not be allowed to block access to businesses, shops, medical facilities, or people’s homes. But they certainly can hold up signs, hand out literature, and inform people of consequences of the businesses they are choosing to engage in. I have no problem protesters with yelling at people who choose to shop at Walmart on Black Friday, military leaders, war veterans returning from Vietnam or those going to an abortion clinic. People have a right to get their message out, as questionable as it may be.

Law enforcement has an important role to protect the right of peaceful protest, and to keep the peace. Some people, angry about the loud voices of the opposition may choose to violently attack their opposition. This is never acceptable. It’s the job of police to monitor protesters, to ensure they have an opportunity to get their voices heard while retaining all their protections of safety and well-being as provided under the law, and that ensure protesters have the opportunity to get their message out in a lawful way that doesn’t impact ordinary commerce of a city, beyond the rubbernecking of passing drivers and pedestrians.

DEC Commissioner Policy #38 – Forest Preserve Roads

For today’s fodder, we take a look at the policies relating to the development and maintenance of the forest preserve system of roads. In March 2006, DEC Commissioner Denise M. Sheehan issued this policy based on a lawsuit by the Residents Committee to Protect the Adirondacks, that allows for limited road maintenance and development, consistent with the Adirondack and Catskill Unit Management Plans.

While any road in a Adirondack or Catskill Park is bound to be controversial, there is a need to make some portions of the backcountry accessible to the general public. This policy attempts to balance constitutional restraints with the desire of the public to have access to parts of Adirondack and Catskill Park, that might otherwise be unaccessible.

Note: These requirements do not apply to roughly 800,000 acres of public lands outside of the Adirondack and Catskill Park on State Forests, Wildlife Management Areas and other areas. They also do not apply to intensive use areas.

I. Summary

This policy establishes procedures and protocols for the maintenance, rehabilitation, relocation, and, when authorized by the State Constitution, widening and new construction of roads and state truck trails under Department of Environmental Conservation (“Department”)jurisdiction in the Forest Preserve which are situated in units classified by the Adirondack Park State Land Master Plan (“APSLMP”) as Wild Forest, Primitive or Canoe Area or classified by the Catskill Park State Land Master Plan (“CPSLMP”) as Wild Forest. This policy pertains to all such roads and state truck trails on Forest Preserve lands whether or not they are open for public motor vehicle use, except it does not pertain to roads or state truck trails in Intensive Use Areas and Administrative Areas. Further, this policy establishes that generally Forest Preserve roads are low maintenance seasonal roads which are narrow, surfaced with gravel, suitable for low speeds, lightly traveled by the public, and partially or fully shaded by tree canopy. Such roads are further constructed and maintained to the minimum standard necessary to provide passage by appropriate motor vehicles in a manner which protects the environment.

II. Policy:

It is the policy of the Department to ensure that comprehensive and consistent procedures are applied to all maintenance, rehabilitation, widening and construction of roads and state truck trails (roads) in the Forest Preserve to ensure that such activities minimize the impacts on the environment and maintain the wild forest character of the road and state truck trail corridors.The 2003 Memorandum of Understanding Between the Adirondack Park Agency and theDepartment of Environmental Conservation Concerning Implementation of the State LandMaster Plan for the Adirondack Park (MOU) provides guidance concerning ordinary maintenance, rehabilitation and minor relocation of conforming structures and improvements on Forest Preserve lands in the Adirondack Park, including whether consultation between the two agencies is required. This policy is intended in part to build upon the MOU and provide additional direction and clarification on coordination of road work in the Adirondack Forest Preserve. This Policy takes precedence over previously existing authority, guidelines, andpolicies.

This policy does not include standards for determining if a road has become legally abandoned. Determinations of road abandonment will be made on a case by case basis inc onsultation with the Division of Legal Affairs.

1 The following definitions, guidelines, responsibilities and procedures shall govern work to be done on roads and state truck trails being carried out on lands of the Forest Preserve which are classified by the APSLMP or CPSLMP as Wild Forest, Primitive, or Canoe.

A. Definitions:

1.Brushing means cutting of woody vegetation less than 3 inches in diameter at breast height (d.b.h.).

2. Ditch means an excavated drainage structure situated adjacent and generally parallel to the driving surface and shoulder of a road or truck trail, designed to convey water away from the driving surface.

3. Ditchline means the low point or centerline of the ditch.

4. Drainage structure means a device which drains water off or away from the road. Drainage structures include such structures as water bars, ditches, French drains,culverts and underdrains.

5. Driving Surface means that portion of the road surface which is designed for vehicles to travel on.

6. Footprint means the limits of disturbance of the road. The foot print includes the driving surface, shoulders, drainage structures, and side slopes. The Original Footprint is the limit of disturbance of the road at the time that it was initially constructed. The currently maintained or existing foot print means areas of the footprint not currently occupied by trees greater than 3″ dbh.

7. French drain means a subsurface drain consisting of a trench backfilled with porous soil or loose stone and covered with earth or other appropriate surface material.

8. Minor relocation of a road or state truck trail means the relocation of a short segment of a road in order to avoid drainage, wetlands, safety, or other site specific problems which cannot otherwise be adequately addressed. A minor relocation shall be the minimum length of new road required to avoid or lessen the site specific problem, but shall not exceed 300 feet in length.

9. Mowing means cutting of non-woody vegetation and woody vegetation less than 3feet in height.

10. Ordinary maintenance means activities within the currently maintained footprint of the road which are needed to keep the road in good working order and which overtime do not materially change the use or appearance of the land or the vegetation thereon from its current use and appearance, including the maintenance or in-kind replacement of road appurtenances and work to address public health and safety issues where such maintenance or activities periodically occur on an as-needed basis. For purposes of this policy, ordinary maintenance includes the following activities when carried out within the currently maintained footprint:

i. pothole filling;

ii. blowdown clearing;

iii. grading of driving surface;iv. bridge repair and maintenance;

v. bridge replacement with a bridge of the same design and of similar dimensions and which is constructed of similar materials;

vi. culvert maintenance, or replacement with a culvert of a length not to exceed the existing foot print and the same nominal height as the culvert being replaced in the same location, provided that the culvert does not involve a freshwater wetland;

vii. drainage structure maintenance, or replacement with a structure in the same location with the same design and similar dimensions and which is constructed of similar materials;

viii. cleaning of existing ditches and culverts that do not impact fresh waterwetlands;

ix. mowing and brushing routinely maintained roads up to four feet beyond theshoulder or ditchline to maintain existing sight lines, road shoulders, andditches;

x. resurfacing of driving surface, with similar material as currently used on theroad, provided that such resurfacing will not likely facilitate levels of public motor vehicle use which significantly exceed existing levels of such use;

xi. limited rock removal that does not require blasting;

xii. trimming select individual tree branches that impede vehicular traffic, obscure sight lines, and hide roadside hazards; and

xiii. cutting select individual dead or hazardous trees pursuant to Lands and Forests Policy 91-2, Cutting and Removal of Trees in the Forest Preserve.

11. Rehabilitation means work that does not occur on a routine basis within the currently maintained footprint of the road which is essential to address environmental impacts, improve safety, or to restore the road or truck trail to a usable condition. It includes the construction of new road appurtenances or work outside of the currently maintained foot print of a road, but within the original footprint of the road. Rehabilitation includes but is not limited to the following activities:

i. placing culverts at new locations;

ii. replacing existing culverts with culverts that have a nominal height greaterthan the nominal height of the existing culvert;

iii. constructing new ditches or drainage structures;

iv. widening existing ditches;

v. cutting trees other than dead or hazardous trees pursuant to Lands and ForestsPolicy Lands and Forests Policy 91-2, Cutting and Removal of Trees in theForest Preserve;

vi. brushing in areas which have not been routinely maintained;

vii. resurfacing the driving surface where such resurfacing will likely facilitate levels of public motor vehicle use which significantly exceed existing levels of such use;

viii. resurfacing of the driving surface with material that is different from the material which currently covers the surface of the road when there is a clear determination that this measure is necessary to protect the natural resources of the Forest Preserve adjoining the road corridor by controlling erosion or runoff; and

ix. regrading of side slopes.

12. Road means motorized transportation corridors that include both roads and state truck trails as defined in the Catskill and Adirondack Park State Land Master Plans, unless the context indicates otherwise.

Road (APSLMP definition): The APSLMP defines “road” on page 18-19 as “an improved or partially improved way designed for travel by automobiles and which may also be used by other types of motor vehicles except snowmobiles, unless the way is a designated snowmobile trail; and is, either maintained by a state agency or a local government and open to the general public maintained by private persons or corporations primarily for private use but which may also be open to the general public for all or a segment thereof; or maintained by the Department of Environmental Conservation or other state agency and open to the public on a discretionary basis.

Road (CPSLMP definition): The CPSLMP defines “road” in Appendix C as “an improved way designed for travel by automobiles and which may also be used by other types of motor vehicles except snowmobiles, unless the way is a designated snowmobile trail; and is, either maintained by a state agency or a local government and open to the general public; or maintained by private persons or corporations primarily for private use but which may also be open to the general public for all or a segment thereof; or, maintained by the Department of Environmental Conservation or other state agency and open to the public on a discretionary basis; or, maintained by the Department of Environmental Conservation for its administrative use only.”

13. Road work means any physical alteration of a road including ordinary maintenance, minor relocation, rehabilitation, widening and new construction as defined in this policy.

14. Shoulder means a transition zone between the driving surface and the road edge or the ditchline. In general, a wheel of a motor vehicle is not on the shoulder unless the motor vehicle is parked or pulled over to let another car pass.

15. Side slope means that area outside of the ditch or road shoulder that is graded to a uniform slope in order to stabilize the soil between the ditch or shoulder and the native, undisturbed ground.

16. State truck trail:

i. State truck trail (APSLMP definition). The APSLMP on page 19 defines “state truck trail” as an improved way maintained by the Department ofEnvironmental Conservation for the principal purpose of facilitatingadministration of state lands or of allowing access for fire fighting equipment and not normally open for public use of motorized vehicles.

ii. State truck trail (CPSLMP definition). Ã¢â‚¬Å“State truck trailÃ¢â‚¬Â is defined in Appendix C of the CPSLMP as Ã¢â‚¬Å“an improved way maintained by the Department of Environmental Conservation for the principal purpose offacilitating administration of state lands or to allow access for fire fighting equipment and not normally open to the public for motorized vehicle use.

17. Trimming means the removal of lateral branches or leaders of a tree or shrub, that does not sever the plant from its roots.

18. Underdrain means a perforated culvert in porous fill for drawing off subsurface water from the soil.

19. Widening means a lateral expansion of the currently maintained footprint, or lateral expansion of the driving surface of the road. Widening includes the clearing of trees and other vegetation from areas of the existing footprint that are not currently so maintained to restore the opening of the original footprint.

20. Work plan means a detailed description of work to be performed, the Best Management Practices that will be used in performance of the work, and the desired final condition of the road and surrounding area.

B. Guidelines for roads subject to this Policy

1. Determination of Road Width, Driving Surface and Desired Condition. The width, existing condition and desired condition of all roads will be addressed in Unit Management Plans (“UMPs”).. 2. Relocation, rehabilitation, widening or construction of roads. Any road work, except for ordinary maintenance, not authorized in a UMP may not be performed until it is determined whether or not a UMP amendment may be required. This determination will be made by the Director of the Division of Lands and Forests in consultation with APA after a work plan has been developed. Ordinary maintenance of existing roads does not require UMP authorization. Roads designated as closed in a UMP may not be maintained.

3. Work plans. All rehabilitation, relocation (including minor relocation), widening and new construction of roads in the Adirondack Park and the Catskill Park will be done in accordance with a written work plan. Work plans will detail the work to be performed and the Best Management Practices that will be used in performance of the work and the desired final condition of the road and surrounding area. In both the Adirondack Park and Catskill Park, ordinary maintenance of a road requires approval from the Regional Forester in the form of a written work order or an approved Ã¢â‚¬Å“Requests for Routine Maintenance Projects on Forest Preserve Lands.All work plans will describe the work to be performed, including any tree cutting, in relation to a linear distance from the projectÃ¢’ starting point. Markers corresponding to the work described in the work plan shall be placed at the work site. Work plans should include photographs taken at representative locations along with location by location descriptions of the road condition, driving surface and width.

5 All work plans in the Adirondack Park will be developed in consultation with APA as per the MOU and must be approved by the Regional Director and the Director of the Division of Lands and Forests or their designees. If a work plan for a project in the Adirondack Park indicates that the proposed work may materially change the appearance of the land or vegetation thereon or use of the road, then the Director of the Division of Lands and Forests or the Director’s designee shall consult with APA staff to determine whether such work must first be authorized by an approved UMP or UMP amendment. If a work plan for a project in the Catskill Park indicates that the proposed work may materially change theappearance of the land or vegetation or use of the road, then the Director of the Division of Lands and Forests shall determine whether such work must first be authorized by an approved UMP or UMP amendment.

4. Best Management Practices. All work on roads shall be done in accordance with Best Management Practices (BMPs). The New York State Forestry Best Management Practices for Water Quality, BMP Field Guide shall serve as a reference for developing BMPs.

5. Approvals and Consultation

i. Ordinary Maintenance. Ordinary maintenance of a road in the Adirondack Park does not require either APA consultation or UMP authorization, except that, as per the MOU, APA consultation is required if wetlands might be impacted. Ordinary maintenance of a road in the Catskill Park does not require UMP authorization, except that consultation with the Department’s Division Fish, Wildlife and Marine Resources Freshwater Wetlands Manager is required if wetlands might be impacted. In both the Adirondack Park and Catskill Park, ordinary maintenance of a road requires approval from the Regional Forester in the form of a written work order or an approved “Requests for Routine Maintenance Projects on Forest Preserve Lands.”

ii. Rehabilitation. Rehabilitation of roads has the potential to impact the wild forest character of the road, cause significant environmental impacts and facilitate additional public use. For these reasons, rehabilitation of roads inthe Adirondack Park requires a written work plan and consultation with the APA. Depending upon site specific considerations, rehabilitation may require authorization by an approved UMP or UMP amendment. This determination requires approval from the Director of the Division of lands and Forests and will be made in consultation with APA.

ehabilitation of roads in the Catskill Park requires approval from the Director of the Division of Lands and Forests or the Director’s designee and, depending upon site specific considerations, may require authorization in an approved UMP or UMP amendment.

iii. Minor relocation . Minor relocation of roads in the Adirondack Parkrequires a written work plan, approval from the Director of the Division of Lands and Forests and consultation with the APA, and may require a UMP or UMP amendment. Minor relocation of roads in the Catskill Park requires a written work plan and approval from the Director of the Division of Lands and Forests, or the Director’s designee, and requires authorization in an approved UMP or UMP amendment. Relocation of portions of roads or state truck trails that are greater than 300 feet, or any or relocation that may have significant environmental impacts will be considered as constituting new road construction and must follow the procedures and protocols on new road construction set forth subsequently in this document.In the Adirondack Park, the determination of whether a particular road relocation project constitutes a minor relocation will be made by the Director of the Division of Lands andForests or the Director’s designee in consultation with the APA. In theCatskill Park, the determination of whether a particular road relocation project constitutes a minor relocation will be made by the Director of the Division of Lands and Forests or the Director’s designee.

iv. Road widening and new road construction on roads in units classified as Wild Forest. As noted above, the widening of existing state truck trails and roads and the construction of new state truck trails and roads on lands classified as Wild Forest under the APSLMP and the CPSLMP, must be authorized by the State Constitution.

Supplementing this constitutional requirement is the APSLMP’s requirement that Ã¢â‚¬Å“No new roads will be constructed in wild forest areas nor will new state truck trails be constructed unless such construction is absolutely essential to the protection or administration of an area, no feasible alternative exists and no deterioration of the wild forest character or natural resources quality of the area will result.

The CPSLMP requires that, in Wild Forest, Ã¢â‚¬Å“No new roads will beconstructed. No new state truck trails will be constructed unless suchconstruction is absolutely essential to protect or administer an area and there will be no material adverse effect on the wild forest character of the area by the proposed construction. Further, the APSLMP and the CPSLMP require that such work must be authorized by an approved UMP. To ensure that such work is authorized by the State Constitution and that environmental issues are identified and fully addressed, widening and new construction of roads in the Adirondack Park must be authorized by an approved UMP or UMP amendment, and require a written work plan and consultation with the APA as per the MOU.

Widening and new construction of roads in the Catskill Park must be authorized by an approved UMP or UMP amendment, and require a written work plan which must be approved by the Regional Director and the Director of the Division of Lands and Forests, or their designees.

III. Purpose and Background:

Forest Preserve roads, which are generally low maintenance seasonal roads, are a means of providing the public with access to recreational programs on Forest Preserve lands.

Although design, maintenance and rehabilitation standards for these roads must provide for the health and safety of users, such roads must be consistent with the “wild forest” character of the Forest Preserve and comply with the requirements of the APSLMP or the CPSLMP, as applicable. Thus, proposals for road work in the Forest Preserve must be carefully scrutinized to ensure that health and safety goals are accomplished in a manner which maintains the existing wild forest character of the road corridors and otherwise complies with applicable law.

Article XIV, Section 1 of the New York State Constitution, the paramount legal authority with respect to Forest Preserve land management, provides in relevant part:

“The lands of the state, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon besold, removed or destroyed. (Emphasis added).”

All road work for roads in the Forest Preserve must be consistent with the directives contained in this constitutional provision. Case law interpreting this provision has held that an immaterial amount of tree cutting does not violate this clause when done in furtherance of one of the purposes for which the Forest Preserve was created, namely, watershed protection and public recreation in a forever wild forest setting. See The Association for the Protection of the Adirondacks v. MacDonald, 253N.Y. 234 (1930); Balsam Lake Anglers Club v. Department of Environmental Conservation, 199 A.D. 2d 852, 605 N.Y.S. 2d 795 (App. Div., Third Department, 1993); Helms v. Reid, 90 Misc. 2d 583 (Hamilton County Supreme Court, 1977), and Flacke v. Town of Fine 113 Misc. 2d 56 (St. Lawrence County Supreme Court, 1982).

Under the rationale set forth in these cases, Forest Preserve road corridors should maintain a wild forest character, with minimal tree cutting. Thus, the current character of Forest Preserve roads should not be changed, and such roads should continue to have narrow driving surfaces, be surfaced with gravel, be suitable for low speeds only, and be shaded by tree canopy.

Roads and state truck trails are nonconforming in areas classified by the APSLMP and CPSLMP as Wilderness. Therefore, there shall be no maintenance, rehabilitation, relocation, widening, or new construction of roads or state truck trails in Wilderness areas.

In areas classified as Primitive by the APSLMP, existing roads and state truck trails may be maintained, rehabilitated or relocated only if the road or truck trail was in existence when the land was classified as Primitive and the road or truck trail is used by administrative personnelto reach and maintain structures and improvements whose removal cannot be effected by a fixed deadline or whose presence is of an essentially permanent character.

In addition, existing roads in areas classified as Primitive may be maintained, rehabilitated or relocated if the roads are open for public use at the Department’s discretion pending wilderness classification. There may be no widening or new construction of roads or state truck trails in Primitive Areas.

In areas classified as Canoe by the APSLMP, the use of roads is prohibited and therefore such roads may not be maintained, rehabilitated, relocated, widened or constructed. Existing state truck trails in areas classified as Canoe may be maintained, rehabilitated or relocatedwhere the truck trails are being used by administrative personnel for purposes designed to preserve or enhance the water or fishery resources of the area as specified in UMPs. The widening or new construction of truck trails is prohibited in Canoe areas.

In areas classified as Wild Forest by the APSLMP, existing roads and state truck trails which are used solely by administrative personnel to reach, maintain and construct permitted structures and improvements may be maintained, rehabilitated, and relocated, but may not be widened. New roads and state truck trails to be used solely for these purposes may not be constructed. Existing public roads open to the public for motor vehicle use in APSLMP Wild Forest areas may be maintained, rehabilitated and relocated. Existing public roads maybe wide ned only if authorized by Article XIV, Section 1 of the New York State Constitution.

No new roads or state truck trails will be constructed in APSLMP Wild Forest areas unless such construction is authorized by Article XIV, Section 1 of the New York State Constitution and such construction is absolutely essential to the protection or administration of the area, no feasible alternative exists and no deterioration of the wild forest character or natural resource quality of the area will result. In addition, such construction is allowed only if it will not result in a material increase in the cumulative mileage of roads open to motorized use by the public in Adirondack Park Wild Forest units.

In areas classified as Wild Forest by the CPSLMP, existing roads and state truck trails which are used by administrative personnel to reach, maintain and construct permitted structures and improvements, to conduct approved fish and wildlife research and management projects, for rescues, or for other appropriate law enforcement and general supervision of public use may be maintained, rehabilitated, and relocated, but may not be widened.

New roads and state truck trails to be used solely for these purposes may not be constructed. Existing public roads open to the public for motor vehicle use in CPSLMP Wild Forest areas may be maintained, rehabilitated, and relocated. Existing roads and state truck trails may be widenedonly if authorized by Article XIV, Section 1 of the New York State Constitution. No new roads or new state truck trails will be constructed in CPSLMP Wild Forest areas unless such construction is authorized by Article XIV, Section 1 of the New York State Constitution and such construction is absolutely essential to protect or administer the area and there will be no material adverse effect on the wild forest character of the area by the proposed construction.

In addition, such construction is allowed only if it will not result in a material increase in the cumulative mileage of roads open to motorized use by the public in the Catskill Park Wild Forest units. This policy is intended to ensure that road work in the Forest Preserve is in compliance with constitutional and APSLMP and CPSLMP directives. Thus, this policy will ensure that all road and state truck trail maintenance, rehabilitation, relocation, widening and construction projects will be properly authorized and that work plans will be developed and appropriately approved prior to the commencement of such work. This policy will enable staff to determine whether such work: requires approval by the Regional Forester and the Director of the Division of Lands and Forests or the Director’s designee; requires consultation with the Adirondack Park Agency; and requires authorization by an approved UMP or UMP amendment

The policy also will enable staff to determine whether a work plan is needed, and, if so, what it must contain and who must approve it.

IV. Responsibility:

It shall be the responsibility of all Department divisions and staff to implement the guidelines and procedures of this policy.

It shall be the responsibility of the Forester assigned as the land manger of a management unit to prepare work plans for the unit in consultation with the Division of Operations. It shall be the responsibility of the Regional Forester to review and approve work plans for road work and ensure that work plans are developed for all road work as required by this policy. The Regional Forester shall ensure work plans are in compliance with UMPs and that current best management practices are utilized and any associated impacts on the environment are minimized. It shall be the responsibility of all Department staff involved in road work projects in the Forest Preserve to ensure that all work authorized and is carried out in accordance with the approved work plan and to ensure that any tree cutting complies with policy Lands and Forests Policy 91-2, Cutting and Removal of Trees in the Forest Preserve.It shall be the responsibility of the Regional Director and the Division Director or their designees to review and approve any work plans for road work involving maintenance, relocation, rehabilitation, widening, and new construction proposed under this policy and to assign staff to coordinate with the APA where such coordination is appropriate under thispolicy.

It shall also be the responsibility of the Director of the Division of Lands and Forests to periodically review the provisions of this policy and recommend amendments, where necessary.

V. Procedure:

The management and actions taken regarding road maintenance, rehabilitation, widening, relocation, and construction on Adirondack Forest Preserve lands shall be in accordance with the above stated policy and the following procedure:

1. Regional staff shall consult with Regional Forester to determine if a proposed project is ordinary maintenance, rehabilitation, minor relocation, relocation other than minor relocation, widening or new construction.

2. APA consultation is required if wetlands in the Adirondack Park might be impacted as required per the MOU. Depending on the scope of the work, an APA Jurisdictional Inquiry Form and Application for Wetlands General Permit, 2005G-1, may be required.

3. Ordinary maintenance of roads may be carried out with the approval of the Regional Forester. At the Regional Forester’s discretion, a work plan may be required for ordinary maintenance. Such work plans must be approved by the Regional Forester and the Director of the Division of Lands and Forests or their designees.

4. All rehabilitation, minor relocation, widening and new construction of roads in the Adirondack Park will be done in accordance with a written work plan prepared by DEC staff in consultation with the APA as per the MOU. All relocation projects should be forwarded to the Director of the Division of Lands and Forests for consultation with APA to determine if the project is considered a minor relocation. Projects that are not part of an approved UMP or UMP amendment and are not minor relocations will be referred to the Director of the Division of Lands and Forests forconsultation with APA to determine if an approved UMP or UMP amendment isrequired for the project.

5. The Regional Forester will ensure that the work plan details the work to be performed, the BMPs that will be used in performance of the work, and the desired final condition of the road and surrounding area. All work plans must describe the work to be performed, including any tree cutting, in relation to a linear distance from the project’s starting point. Markers corresponding to the work described in the work plan shall be placed at the work site. Work plans should include photographs taken at each station and at representative locations along with station by station descriptions of the road condition, driving surface and width.

The Regional Forester will forward work plans approved by the Regional Director or the Regional Director’s Designee to the Director of the Division of Lands and Forests. The Division Director or the Division Director’s designee will notify the Regional Forester of approval or denial of the work plan.

The management and actions taken regarding road maintenance, rehabilitation, minor relocation, relocation, widening and construction on Catskill Forest Preserve lands shall be in accordance with the above stated policy and the following procedure:

1. Regional staff shall consult with the Regional Forester to determine if the proposed project is ordinary maintenance, rehabilitation, minor relocation, relocation other than minor relocation, widening or new construction.

2. Consultation with the Department’s Division of Fish, Wildlife and Marine Resources Freshwater Wetlands Manager is required if wetlands might be impacted.

3. Ordinary maintenance of roads may be carried out with the approval of the Regional Forester.

4. All rehabilitation, minor relocation, widening and new construction of roads in the Forest Preserve will be done in accordance with a written work plan prepared by Department staff. All relocation projects should be forwarded to the Director of the Division of Lands and Forests to determine if the project is considered a minor relocation. Projects that are not part of an approved UMP or UMP amendment will be referred to the Director of the Division of Lands and Forests to determine if an approved UMP or UMP amendment is required for the project.

5. The Regional Forester will ensure that the work plan details the work to be performed and the Best Management Practices that will be used in performance of the work and the final condition of the road and surrounding area. All work plans must describe the work to be performed, including any tree cutting, in relation to a linear distance from the project’s starting point. Markers corresponding to the work described in the work plan shall be placed at the work site.

Related References:

Adirondack Park State Land Master Plan (APSLMP), Adirondack Park Agency, June 2001

Catskill Park State land Master Plan (CPSLMP), NYSDEC, 1985

New York State Forestry, Best Management Practices for Water Quality, BMP Field Guide,NYSDEC, January 2000

Lands and Forests Policy 91-2, Cutting and Removal of Trees in the Forest Preserve

2003 Adirondack Park Agency/Department of Environmental Conservation Memorandum ofUnderstanding

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

Andy Arthur.org

Search Results for: the ides of march vehicle

March 15, 2019 Morning

March 15, 2017 Morning

Percentage of Sedans that are Black

Protest is Important

DEC Commissioner Policy #38 – Forest Preserve Roads

I. Summary

II. Policy:

A. Definitions:

III. Purpose and Background:

IV. Responsibility:

V. Procedure:

Related References:

Laws and Case Law

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

Highway Law Section 205:
Highways Abandoned By Local Governments.

Matter of Smigel v. Town of Rennselaer.

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

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

Section 212 of the State Highway Law

Section 212 of Highway Law.

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

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

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

3. Request for Relief Pursuant to Highway Law § 212

Adirondack Council Press Release (2009).

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

Resolution from Adirondack Assocation of Towns (2010).

RESOLUTION REQUESTING AMENDMENT OF HIGHWAY LAW SECTION 212 BACKGROUND OF RESOLUTION

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

I. Summary

II. Policy:

A. Definitions:

III. Purpose and Background:

IV. Responsibility:

V. Procedure:

Related References:

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

Highway Law Section 205: Highways Abandoned By Local Governments.

Matter of Smigel v. Town of Rennselaer.

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

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

Section 212 of Highway Law.

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

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

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

3. Request for Relief Pursuant to Highway Law § 212

Adirondack Council Press Release (2009).

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

Resolution from Adirondack Assocation of Towns (2010).

RESOLUTION REQUESTING AMENDMENT OF HIGHWAY LAW SECTION 212 BACKGROUND OF RESOLUTION

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

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

Highway Law Section 205:
Highways Abandoned By Local Governments.