Enacts legislation to implement a constitutional amendment authorizing the placement of public utility line and bike paths in the forest preserve and establishing land banks

This section would also establish two land banks in forest preserve counties, 500 acres for the Adirondack region and 250 acres for the Catskill region. The land banks could be available to towns, counties, public water supplies and public utilities for highway, bridge, bike path, environmental infrastructure, water supply, and public utility projects where no feasible alternative exists. An individual project would be limited to no more than five acres. No more than ten acres in total could be used by an individual town or fifteen acres by an individual county, unless authorized by the legislature. Any project sponsor that uses land from the land bank would be required to pay an amount equal to the value of the state lands or easement into an account for acquisitions to the forest preserve and funds collected would be used to purchase land for addition to the forest preserve. Any public utility or water supply project would have to be approved by the town or towns where the project is proposed.

DEC would have to acquire 750 acres of land for addition to the forest preserve which would be classified as wilderness prior to allowing the use of the land bank.

Section 2 of this bill amends State Finance Law § 97-e to allow for moneys received for a regional land bank transaction to be deposited into the forest preserve expansion fund. This section also clarifies that the moneys in the fund shall be used for the acquisition of additional lands for the forest preserve as well as the conservation of forest and wild life in forest preserve counties.

Section 3 of this bill provides that the act is effective upon passage of a constitutional amendment authorizing the establishment of a forest preserve land bank for public project.

Justification

Article XIV of the State Constitution prevents state lands, including forest preserve, reforestation areas, and wildlife management areas, in Adirondack and Catskill counties from being leased, sold or exchanged and prohibits them from being taken by any public or private corporation. Thus, alienation of these lands requires a Constitutional Amendment, passed by two successive, separately elected legislatures and ratified by the electorate at a general election. This process is intended to set a high standard for the alienation of state lands. However, this process is overly cumbersome, time consuming and expensive for small communities that need small amounts of state land for water supply, road and utility projects critical to the public health and safety.

The state's land acquisition program has caused the forest preserve to nearly quadruple in size since 1895, when the forest preserve was first given constitutional protection. In 1895, the preserve included 750,000 acres; now, the preserve includes nearly 3,000,000 acres. In one Adirondack town, Arietta, the State owns 93 percent of the land, while in Hamilton County the State owns more than 50 percent of the land. The presence of state land has frustrated the siting of basic public projects. Sometimes, due to land ownership patterns, the only feasible alternative is to site a project on state land. The inability to use State land can also result in the loss of funding for essential projects.

For example, in 2008 the town of Elizabethtown received $6.4 million in federal funding to install and upgrade much needed sewer lines. However, the town discovered late in the process that the lines would cross a small area of forest preserve land. The town did not have the resources necessary to advance an amendment allowing the lines to cross the preserve lands. Moreover, there was a three year limit on federal grant funds for the project and, because first and second passage of the joint resolution by the legislature requires passage in two separate sessions of the legislature and then a vote of the people, an individual, site-specific Constitutional Amendment could not be secured before funding for the project expired. Therefore, federal funding for the project was lost and the needed sewer line project has yet to be completed.

A second example of where the anti-alienation provisions in Article XIV have prevented an important public health and safety project from moving forward is the relocation of the Middleton Bridge in the Town of Horicon. The existing bridge crossing the Schroon River was closed due to structural problems and a new replacement bridge is needed. However, the new bridge needs to be located upstream from the existing bridge because the road leading to the existing bridge is subject to periodic flooding of the river. The best location for the new bridge would cross the river where the state owns both river banks, and the state land is subject to Article XIV's anti-alienation provisions. As a result, the bridge cannot be constructed without a constitutional amendment. The Town of Horicon lacks the resources to secure first and second legislative passage of an amendment and to produce the educational materials necessary to inform the voters of the State as to the need for the bridge. Consequently, a replacement bridge has not been built. Access to the residences on the east side of the river is currently by a lengthy, indirect route, creating an unreasonable emergency responder response time.

Since 1894, a small handful of amendments to Article XIV have been passed to address public health, safety and welfare issues. These amendments have normally been site specific and required land exchanges whereby the State receives, for inclusion in the forest preserve, land that is greater in value and acreage than the land that is being taken out of the forest preserve:

In 2007, the voters approved an amendment allowing the Town of Long Lake to acquire one acre of forest preserve land for the siting of drinking water wells to provide potable water to the hamlet of Raquette Lake in exchange for not less than 12 acres of land at least equal in value to the acre conveyed to the Town. Raquette Lake had been using unfiltered water from the local reservoir, built on Forest Preserve land under Article XIV Section 2 of the Constitution, which allows not more than three percent of Forest Preserve land to be used for surface reservoirs for municipal water supply and canals. However, the water failed drinking water standards and the State Department of Health ordered the town to either filter the water or find an alternative ground water supply. By 2005, the water supply became a serious health and safety problem, elevating levels of potential carcinogens and causing the Department of Health to warn residents to boil their drinking water. The only feasible location for a new water supply was wells on Forest Preserve land; the town could not afford a filtration plant. Due to the severity of the water problem, the wells were constructed on Forest Preserve land prior to the adoption of an authorizing constitutional amendment.

In 2009, the voters approved an amendment authorizing a land exchange between the State and National Grid, for the construction of a new 46 kV power line across six acres of Forest Preserve land adjoining State Route 56 in St. Lawrence County. Due to chronic power outages in Lake Placid, Saranac Lake and Tupper Lake, National Grid was under a Federal Energy Regulatory Commission (FERC) order to provide a redundant power line to service the communities. First legislative passage of a joint resolution occurred, but after the legislature adjourned it was discovered that the resolution contained a fatal flaw and first passage would need to be secured in the next legislative session. This delay in the amendment process meant that the amendment could not be passed in time to meet a deadline set forth in the FERC order. The power line was then constructed without constitutional authorization, which was subsequently acquired.

It is unreasonable that these basic projects cannot move forward without individual amendments to the state constitution. Similar amendments authorizing the use of State land are not required anywhere else in the state.

The proposal should not, however, result in the widespread misuse of state lands. All projects will need to be approved by DEC after public review and comment, and any project can be denied by DEC if a feasible alternative to the use of state land exist, environmental impacts aren't minimized by the use of state land, or the state land has critical environmental or recreational value.

The acreage contained in the land bank is also limited: 250 acres in the Catskill region and 500 acres in the Adirondack region. No individual project may use more than five acres of land. Without specific authorizing legislation, no town could utilize in total more than ten acres, and no county could utilize more than 15 acres. Moreover, the proposal requires that the integrity of the forest preserve be protected: project proponents would be required to pay the State the appraised value of the state land to be utilized, which payment would be deposited in the existing forest preserve expansion fund. And the State will acquire land that will be classified as wilderness - the most restrictive land classification - in advance of allowing the land bank to be used, in addition to forest preserve acquisition using the funds received for utilization of the land bank.

The amendment and this accompanying implementing legislation would only serve to eliminate constitutional restrictions on the siting of certain types of projects on State lands in Forest Preserve counties; other applicable law is not being overridden. The State Environmental Quality Review Act, the wetlands act, the rivers act, the Adirondack Park Agency Act, the Clean Water Act, and all other laws which are not inconsistent with the provisions of this constitutional amendment will continue to apply to all projects.

Legislative history

This is a new bill.

Fiscal implications

This would result in increased funding to be available for the acquisition of new lands for the Forest Preserve.

Effective date

This act shall take effect on the same date and in the same manner as a "CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing an amendment to article 14 of the constitution, in relation to establishing a forest preserve land bank for public projects" takes effect, in accordance with section 1 of article 19 of the constitution.