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DEC Commissioner Policy #38 – Forest Preserve Roads

Andy | October 20, 2016

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

Andy | March 10, 2014

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.

Association for the Protection of the Adirondacks v. Alexander MacDonald

Andy | June 6, 2011

As I could not find this court case online, despite being public domain, I obtained a copy from the Research Librarian at the Bethlehem Public Library. I am posting this case in it’s entirety, as it’s key to understanding the core holdings in the case, that must be upheld whenever a proposed use is undertaken in the forest preserve.

The Association for the Protection of the Adirondacks et al., Respondents, v.
Alexander MacDonald, Conservation Commissioner of the State of New York, et al., Appellants

[NO NUMBER IN ORIGINAL]

Court of Appeals of New York

253 N.Y. 234; 170 N.E. 902; 1930 N.Y. LEXIS 820

February 11, 1930, Argued
March 18, 1930, Decided

PRIOR HISTORY.

[***1] Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 21, 1930, in favor of plaintiffs, upon the submission of a controversy under sections 546-548 of the Civil Practice Act.

Assn. for Protection of Adirondacks v. MacDonald, 228 App. Div. 73, affirmed.

DISPOSITION.

Judgment affirmed.

OVERVIEW.

1929 N.Y. Laws ch. 417 was enacted to authorize the construction of a bobsleigh run in a forest preserve belonging to the state in order to provide facilities for the Olympic winter games. The officials planned to cut down 2,500 trees, and the association, a group that sought to protect state lands, objected, arguing that the state’s constitution prevented the cutting of the trees. The association obtained an injunction restraining the construction on the ground that the statute was void and unconstitutional, and the officials appealed. The court affirmed the decision, holding that ch. 417 was unconstitutional and that the timber on the lands in the forest preserve could not be cut and removed to construct a toboggan slide because N.Y. Const. art. VII, § 7 said that it could not be done. The court held that the constitution, like any other law, had to receive a reasonable interpretation, considering the purpose and the object in view, and the purpose of § 7 was that the forest preserve should be forever kept as wild forest lands and the timber could not be sold, removed, or destroyed.

SYLLABUS.

Chapter 417 of the Laws of 1929, authorizing the Conservation Commissioner to construct and maintain a bobsleigh run or slide on State lands in the Forest Preserve in the town of North Elba, necessitating the removal of a substantial number of trees from the land set aside therefor, is violative of section 7 of article 7 of the State Constitution, directing that timber in the Forest Preserve shall not be “sold, removed or destroyed,” and is, consequently, void.

COUNSEL: Hamilton Ward, Attorney-General (C. S. Ferris of counsel), for appellants. Section 7 of article 7 of the Constitution was not intended to prohibit the cutting of a relatively small number of trees, [***2] or even a single tree, when such cutting will in no wise impair the forest or subvert the purpose for which the Forest Preserve was acquired and is now being maintained. ( People ex rel. Manhattan Ry. Co. v. Barker, 152 N. Y. 433; People ex rel. Jackson v. Potter, 47 N. Y. 375; People v. Adirondack Ry. Co., 160 N. Y. 225; Einsfeld v. Murray, 149 N. Y. 367.)

Wallace T. Stock, Frederick T. Kelsey and John W. DeWitt for Public Park and Playgrounds District of the Town of North Elba, amicus curiae. The constitutional provision must be given a broad interpretation consistent with the purposes of government and with the ascertained intent of the framers thereof and of the people. ( People v. Tremaine, 252 N. Y. 27; Koster v. Coyne, 184 N. Y. 494; Matter of Burns, 155 N. Y. 23; Rochester v. Quintard, 136 N. Y. 221; People v. Petrea, 92 N. Y. 128; Matter of Gilbert El. R. Co., 70 N. Y. 361; Goodell v. Jackson, 20 Johns. 693; People v. Fancher, 50 N. Y. 288; People v. Albertson, 55 N. Y. 50; People v. Lorillard, 135 N. Y. 285; [***3] Admiral Realty Co. v. City of N. Y., 206 N. Y. 110; Matter of Dowling, 219 N. Y. 44.) The intent of the People in adopting this provision of the Constitution was the preservation and use of the Forest Preserve as a great resort for the public for the purposes of health and recreation. (Black on Interpretation of Laws [2d ed.], pp. 20, 194; Wendell v. Lavin, 246 N. Y. 115; People v. Potter, 47 N. Y. 375; Sweet v. Syracuse, 129 N. Y. 316; Stradar v. Stern, 184 App. Div. 700; Waters v. Gerard, 189 N. Y. 302; People v. Mosher, 163 N. Y. 32; People v. Lyman, 157 N. Y. 368.) The proposed bobsled run is a proper and desirable use of the State’s forest lands, consistent with the Constitution. ( Matter of Watson, 226 N. Y. 384.)

Jacob Gould Schurman, Jr., George Welwood Murray, Samuel H. Ordway and Alanson W. Willcox for respondents. The history of section 7 of article 7 of the Constitution and the effect uniformly attributed to it, demonstrate the invalidity of chapter 417 of the Laws of 1929. ( People v. Adirondack R. Co., 160 N. Y. 225; Adirondack R. Co. v. Indian River Co., 27 App. Div. 326; [***4] People v. New York Central & H. R. R. R. Co., 161 App. Div. 322; 213 N. Y. 649; Newcombe v. Ostrander, 66 Misc. Rep. 103; 140 App. Div. 945.) The legislation in question cannot be sustained as an exercise of the police power or as a reasonable use of the Forest Preserve. ( Barrett v. State of New York, 220 N. Y. 423.)

JUDGES: Crane, J. Cardozo, Ch. J., Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

OPINION BY: CRANE

OPINION.

[*236] [**903] By chapter 417 of the Laws of 1929 the Conservation Commissioner is authorized to construct and maintain a bobsleigh run or slide on State lands in the Forest Preserve in the town of North Elba, Essex county, on the western slope of the Sentinel Range.

The act was passed for the purpose of providing facilities for the third Olympic winter games, which are to be held at or in the vicinity of Lake Placid, in the year 1932. The bobsleigh run will be approximately one and one-quarter miles in length and six and one-half feet wide, with a return route or go-back road. As additional land will have to be cleared on either side of the run, the width in actual use will be approximately sixteen feet, and twenty feet where the course curves. It is estimated that the [***5] construction will necessitate the removal of trees from about four and one-half acres of land, or a total number of trees, large and small, estimated at 2,500. The Forest Preserve within the Adirondacks consists of 1,941,403 acres. The taking of four acres out of this vast acreage for this international sports’ meet seems a very slight inroad upon the preserve for a matter of such public interest and benefit to the people of the State of New York and elsewhere. The Legislature, recognizing the benefits of an international gathering of this kind, has sought in the public interest, by the [*237] enactment of the above law, to provide appropriately and in the spirit of hospitality, the necessary equipment and facilities for these games, and contests, incident to winter sport, of which tobogganing is a large feature. Winter sports of course must be held in a place where there will be an assurance of sufficient continual cold weather for snow and ice, and the vicinity of Lake Placid gives this assurance. The western slope of the Sentinel range, chosen for the toboggan slide, is the nearest and most appropriate place for its construction in connection with the center of attractions.

[***6] Considering the distinction of having one of the beauty spots of New York State selected as appropriate for the International Olympic winter games and the advantages afforded by Lake Placid and its vicinity, together with the good will promoted in the recognition by the State, through its Legislature, of the event, what possible objection can there be to the above law permitting this toboggan slide to be constructed on State land? One objection, and one only — the Constitution of the State, which prevents the cutting of the trees. This objection has been raised by the Association for the Protection of the Adirondacks, which has sought and obtained an injunction restraining the Conservation Commission of this State and the Superintendent of Lands and Forests from constructing and maintaining the bobsleigh run on the ground that chapter 417 of the Laws of 1929 is unconstitutional and void.

The constitutional provision is HN1section 7 of article VII, reading: “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, [***7] public or private, nor shall the timber thereon be sold, removed or destroyed.”

The lands and trees proposed to be taken for the toboggan slide are within the Forest Preserve and covered [*238] by this provision of the Constitution. Taking the words of section 7 in their ordinary meaning, we have the command that the timber, that is, the trees, shall not be sold, removed or destroyed. To cut down 2,500 trees for a toboggan slide, or perhaps for any other purpose, is prohibited. Some opinions, notably those of the Attorneys-General of the State, cited on the briefs and by the Appellate Division, have even gone so far as to state that a single tree, and even fallen timber and dead wood, cannot be removed; that to preserve the property as wild forest lands means to preserve it from the interference in any way by the hand of man.

HN2The words of the Constitution, like those of any other law, must receive a reasonable interpretation, considering the purpose [**904] and the object in view. ( State of Ohio ex rel. Popovici v. Agler, 280 U.S. 379.) Words are but symbols indicating ideas and are subject to contraction and expansion to meet the idea sought to be expressed; [***8] they register frequently according to association, or like the thermometer, by the atmosphere surrounding them. The purpose of the constitutional provision, as indicated by the debates in the Convention of 1894, was to prevent the cutting or destruction of the timber or the sale thereof, as had theretofore been permitted by legislation, to the injury and ruin of the Forest Preserve. To accomplish the end in view, it was thought necessary to close all gaps and openings in the law, and to prohibit any cutting or any removal of the trees and timber to a substantial extent. The Adirondack Park was to be preserved, not destroyed. Therefore, all things necessary were permitted, such as measures to prevent forest fires, the repairs to roads and proper inspection, or the erection and maintenance of proper facilities for the use by the public which did not call for the removal of the timber to any material degree. The Forest Preserve is preserved for the public; its benefits are for the people of the State as a whole. Whatever the advantages may be of having wild forest lands [*239] preserved in their natural state, the advantages are for every one within the State and for the use [***9] of the people of the State. Unless prohibited by the constitutional provision, this use and preservation are subject to the reasonable regulations of the Legislature.

The laws developing the Forest Preserve and the Adirondack Park, up to the Constitution of 1894, are reviewed in the opinion of this court in People v. Adirondack Ry. Co. (160 N. Y. 225). By chapter 707 of the Laws of 1892 the State Park, known as the Adirondack Park, was created within certain of the Forest Preserve counties. Such park is to be “forever reserved, maintained and cared for as ground open for the free use of all the people for their health or pleasure, and as forest lands necessary to the preservation of the headwaters of the chief rivers of the State, and a future timber supply.”

Chapter 332 of the Laws of 1893, combining all previous acts, gave to the Forest Commissioners authority to sell certain timber on the Forest Preserve and also power to sell such of the lands as were not needed. They were also authorized to lease camp sites and lay out paths and roads in the park. Then came the Convention of 1894 with the debates indicating a change of policy regarding the sale and destruction of [***10] timber and the use of the lands. (Revised Record of the Constitutional Convention of 1894, vol. I, pp. 1100, 1148; vol. II, pp. 57, 1201; vol. IV, pp. 128, 137.)

At the time of the assembling of this Convention, the law of the State authorized the sale, lease, clearing and cultivation of lands in the Forest Preserve and the sale of standing or fallen timber thereon; also permitted the laying out of paths and roads through the property. (See chap. 283, Laws of 1885; chap. 475, Laws of 1887; chap. 707, Laws of 1892; chap. 332, Laws of 1893.)

With these laws before them and the statements in the debates revealing the depredations which had been made on the forest lands, and the necessity for restricting the [*240] appropriation of trees and timber, section 7 of article VII was adopted and became part of the Constitution January 1, 1895, where it has remained ever since.

No longer was the land or timber to be sold or even condemned for public purposes. ( People v. Adirondack Ry. Co., supra.) The forests were to be preserved as wild forest lands, and the trees were not to be sold or removed or destroyed. Whereas the Legislature had authorized the building of roads through [***11] these lands, this power was thereafter conferred not through legislation, but by constitutional amendments adopted in 1918 and 1927. The section with these amendments now reads: “Nothing contained in this section shall prevent the State from constructing a State highway from Saranac lake in Franklin county to Long lake in Hamilton county and thence to Old Forge in Herkimer county by way of Blue Mountain lake and Raquette lake, and nothing shall prevent the State from constructing a State highway in Essex county from Wilmington to the top of Whiteface mountain.” If it were deemed necessary to obtain a constitutional amendment for the construction of a State highway, the use to which the Forest Preserve might be put with legislative sanction was greatly limited. Trees could not be cut or the timber destroyed, even for the building of a road. This seems to be a fair conclusion to be drawn from the adoption of these constitutional amendments after the Constitution of 1894.

What may be done in these forest lands to preserve them or to open them up for the use of the public, or what reasonable cutting or removal of timber may be necessitated in order to properly preserve the State Park, [***12] we are not at this time called upon to determine. What regulations may reasonably be made by the Commission for the use of the park by campers and those who seek recreation and [**905] health in the quiet and solitude of the north woods is not before us in this case. The [*241] Forest Preserve and the Adirondack Park within it are for the reasonable use and benefit of the public, as heretofore stated. A very considerable use may be made by campers and others without in any way interfering with this purpose of preserving them as wild forest lands. (See “The Problem of the Wilderness” by Robert Marshall in “The Scientific Monthly,” Feb. 1930, p. 141.)

But the question still remains whether the construction of a toboggan slide, which requires the cutting of 2,500 trees, is such a reasonable use, or is forbidden by the Constitution.

Counsel for the appellants has very ably argued that as the underlying purpose of all these restrictions upon the State lands is to preserve them for the free use of all the people for their health and pleasure, the erection of a toboggan slide for sport is within this purpose. He has pressed upon our attention the fact that outdoor sports do [***13] much to maintain the health, the happiness and the welfare of the people of this State; and that if a branch of these outdoor sports is to a minor extent permitted within the public lands, the very purpose which the framers of the Constitution of 1894 had in mind will be accomplished; that it is the benefit to the people which this constitutional provision sought to preserve in the preservation of the forest. What can be more beneficial, asks counsel, than the establishment of forest sports, among which is classed this toboggan slide? We must admit much, if not all, that counsel has so eloquently pleaded in behalf of outdoor games. Perhaps much may be due to international sports, such as the Olympic games, lawn tennis, golf, even aviation, for creating good will among the nations, and a desire to establish those friendly relationships so vigorously claimed and earnestly sought for through treaties and world conferences. However tempting it may be to yield to the seductive influences of outdoor sports and international contests, we must not overlook the fact that [*242] constitutional provisions cannot always adjust themselves to the nice relationships of life. The framers [***14] of the Constitution, as before stated, intended to stop the willful destruction of trees upon the forest lands, and to preserve these in the wild state now existing; they adopted a measure forbidding the cutting down of these trees to any substantial extent for any purpose.

Tobogganing is not the only outdoor sport. Summer sports in the Adirondacks attract a larger number of people than the winter sports, simply for the reason, if no other, that the summer time still remains the vacation period for most of us. The same plea made for the toboggan slide in winter might be made for the golf course in summer, or for other sports requiring the use or the removal of timber. In other words, this plea in behalf of sport is a plea for an open door through which abuses as well as benefits may pass. The Constitution intends to take no more chances with abuses, and, therefore, says the door must be kept shut. The timber on the lands of the Adirondack Park in the Forest Preserve, or that on the western slope of the Sentinel range cannot be cut and removed to construct a toboggan slide simply and solely for the reason that section 7, article VII, of the Constitution says that it cannot be [***15] done. (emphasis added)

Consequently, chapter 417 of the Laws of 1929, permitting the erection of this bobsleigh slide and the destruction of the trees is unconstitutional, and the judgment should be affirmed, with costs.