March 13, 2008
Pete Grannis, Commissioner
NYS Department of Environmental Conservation
625 Broadway
Albany, NY 12233-1750
Re: Constitutional Issues pertaining to the Belleayre Mountain Modified Project and UMP.
Dear Pete:
I am writing to explain our views on potential constitutional violations of Article XIV, section 1, the "forever wild" clause presented by the proposed Belleayre Mountain Ski Center (BMSC) Modified Project and Unit Management Plan. We are very pleased that DEC has decided not to pursue the proposed Belleayre East ski lift and trails, especially those in Cathedral Glen.
ADK is deeply concerned about the proposal to create ski-in, ski-out trail access from the BMSC to the privately owned Belleayre Resort complex, especially the 19 high-level luxury homes on the Belleayre - Highmount Ridge. The Agreement in Principle (AIP, pages 4 and 20) proposes to construct a ski lift and ski trails on lands of the Catskill Forest Preserve for the purpose of connecting the privately owned facilities of the Belleayre Resort to the Belleayre Mountain Ski Center.
The Agreement also states that DEC and the privately owned and operated Crossroads Ventures Corporation will execute a memorandum of understanding (MOU) to: "memorialize collaboration in their respective improvements and future operations to maximize efficiencies and improve the visitor experience." (Agreement in Principle, p.14) We are especially concerned about the prospect of DEC constructing trails and lifts on Forest Preserve lands for the exclusive or predominant benefit of the owners of the Belleayre Resort complex.
ADK believes that DEC should request Attorney General Andrew Cuomo to address the Article XIV issue of whether or not the proposed tree cutting, blasting, rock removal, and slope alterations of the lands of the Catskill Forest Preserve at the BMSC can be legally undertaken for the purpose of providing an exclusive or predominant benefit to privately owned properties under Article XIV, Section 1 of the NYS as described in the AIP.
A May 2, 1947 Attorney General Opinion that interpreted the original constitutional amendment that authorized the Belleayre Ski Center stated, in pertinent part:
"Broadly speaking, if and when the proposed amendment is approved by the People, Article XIV, as amended, taken in its entirety, would not seem to authorize the construction on forest preserve lands of ski trails and appurtenances thereto intended primarily to supplement or complement an essentially private development located on adjacent privately owned lands."
Accordingly, we believe that Article XIV, section 1 forbids the construction of "ski in, ski out" trails and appurtenances on any existing or proposed lands of the Catskill Forest Preserve intended primarily to enhance the value or desirability of the privately owned lodging facilities of Crossroads Ventures.
According to the Final Scope, the Department of Environmental Conservation (DEC) proposes to acquire portions of the former Highmount Ski Center totaling approximately 78 acres to accommodate a westward expansion of Belleayre Mountain Ski Center. ADK questions whether DEC can legally use these newly acquired lands for the purposes of expanding the Belleayre Ski Center without an additional constitutional amendment to Article XIV, section 1 of the state constitution specifically and expressly authorizing these facilities on the Highmount parcel.
Since the proposed Highmount Forest Preserve acquisition was not part of the Catskill Forest Preserve in either 1947 or 1986, it is ADK's legal position that those respective amendments to Article XIV, section 1 can not support the cutting of trees, blasting, rock removal and alteration of the "wild forest character" of the "hereinafter acquired" Highmount property in order to expand the Belleayre Mountain Ski Center.
We assert that DEC must request an Attorney General Opinion to answer the question of whether the 1947 and 1986 constitutional amendments authorizing
the creation and subsequent expansion of the Belleayre Mountain Ski Center apply only to the lands that were part of the Catskill Forest Preserve at the time that each of the respective constitutional amendments were approved by the voters.
ADK asserts that the 1947 and 1986 Belleayre constitutional amendments could apply only to lands actually in state ownership and subject to Article XIV, section 1 at the time of each respective voter approval. Our review of the respective amendment documents and ballot questions reveals that neither the Legislature nor the voters were ever informed that amendment was intended to apply to lands that were not part of the Catskill Forest Preserve at the time of the legislative approvals and the voter referenda.
The voters in 1947 and 1986 could not have contemplated or authorized the cutting of trees and alteration of the wild forest character of lands that would not be added to the Catskill Forest Preserve until many decades thereafter. Under DEC's current interpretation of the 1947 and 1986 amendments, some future DEC administration could expand the ski center eastward to encompass the 1200 acres of the proposed Big Indian plateau addition to the Forest Preserve without the necessity of seeking either legislative or voter approval.
Clearly such a result was not contemplated or authorized by the state legislature or voters. Since the 1947 and 1986 amendments authorized activities and facilities at Belleayre that are wholly inconsistent with the "forever wild" principle of Article XIV, section 1, we believe the courts will strictly construe them to apply only to lands that were part of the Catskill Forest Preserve at the time that the amendments were approved.
Further, ADK understands that approximately 10 miles of new trails are proposed as part of the BMSC expansion. ADK believes that this trail expansion alone could expand the ski center to its full, constitutionally authorized build-out of 25 miles of ski trails. It appears that DEC has thus far not included the footprint and dimensions of the proposed ski lifts, the new snow-making reservoir, new Tomahawk Lift Base Lodge, expanded Sunset Lodge, new Visitor Center, new Amphitheatre, new sand/salt storage facility, expanded snowmaking infrastructure and other appurtenances in calculating the current Article XIV, section 1 footprint limits on tree cutting and wild forest character alteration.
ADK asserts that DEC must calculate the square footage and total cleared area associated with the new ski trails, lifts, and associated buildings proposed for construction on existing state lands. DEC must then determine whether or not these proposed facilities can be legally accommodated within the constitutional footprint limits currently set forth in Article XIV, section 1 of the NYS constitution.
ADK believes that the cleared area of the existing and proposed ski trails, buildings, reservoirs and appurtenances must be taken into account in calculating the permissible area of tree cutting and wild forest alteration authorized by the citizens of New York in 1947 and 1986.
It is legally inconsistent with the footprint limits of the 1947 and 1986 amendments for DEC to now assert that there are no constitutional limits whatsoever on the size of the footprint of the lodges, buildings, reservoirs, pumping stations, lifts and other "appurtenances" that can be constructed on Belleayre Mountain.
ADK believes that DEC's apparent decision not to count the cleared dimensions for the proposed additional ski lifts, new buildings and other appurtenances against the constitutional footprint limit is contrary to the letter, spirit and intent of Article XIV, Section 1 of the state Constitution. The ski lifts, buildings, reservoirs and any appurtenances that require tree removal, blasting and site alteration must be counted against the dimensional limitations of the 1947 and 1986 amendments to Article XIV, section 1.
ADK asserts that no new ski trails and facilities can be constructed on the proposed Highmount addition to the Catskill Forest Preserve without an authorizing amendment to Article XIV, section 1, approved by the voters specifically authorizing those improvements on this new parcel.
ADK is very concerned about the cumulative impacts of the construction of these new trails as well as the impacts of additional structures on these Forest Preserve lands. The amount of tree clearing for both the ski trails, ski lifts and buildings will result in a very substantial amount of vegetation removal. It is important for the DEC SEQRA scoping process to set forth the nature and degree of alteration of the wild forest character and number of trees to be removed that are in excess of 6 inches diameter at breast height (dbh).
The decision in the landmark case Balsam Lake Angler's Club v. NYSDEC , 199 A.D.2d 852 , (Third Dept. 1993) allows only those public facilities and public uses that are compatible with the character and preservation of wild forest lands and which do not involve any material cutting of trees. Moreover, the decision prohibits: 1) any public use or activity requiring a material degree of tree cutting and/or 2) activities that are incompatible with the wild forest character, even though they are recreational and do not require material amount of tree cutting and 3) any private use of the Forest Preserve.
ADK submits that Article XIV, section 1, read together with the McDonald and Balsam Lake cases preclude tree cutting, blasting, rock removal and terrain alteration on the proposed Highmount addition to the Catskill Forest Preserve in the absence of an authorizing constitutional amendment specific to the Highmount parcel. The said 1947 opinion of the Attorney General precludes the construction of "ski-in, ski-out" trails and appurtenances on Forest Preserve to primarily benefit a private resort complex.
Sincerely,
Neil F. Woodworth
Executive Director and Counsel
Adirondack Mountain Club
cc: Pete Grannis
Stuart Gruskin
Chris Amato
Judith Enck
Andrew Cuomo
Katherine Kennedy
Jeanne Konz