BILL NUMBER:  S8026A

 TITLE OF BILL :  CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY
proposing an amendment to article 14 of the constitution, in relation
to allowing public utility lines and bicycle paths on certain state
lands in the forest preserve and establishing a forest preserve health
and safety land account

 PURPOSE :

The purpose of this bill is to amend Article XIV of the Constitution
to allow the use of state lands for the burial of public utilities and
to establish a land bank for public projects and utilities in the
Adirondacks and Catskills.

 SUMMARY OF PROVISIONS :

This resolution adds a new section 6 to Article XIV of the New York
state constitution to allow utility lines to be buried on certain
lands in forest preserve counties and construction of bike paths
within the width of highways that traverse state lands. It would also
establish a land bank of no more than 750 acres of state lands in
forest preserve counties, which could be allocated to projects by
towns, counties and public utilities which promote public, health,
safety, and welfare where no feasible alternative exists. An
individual project would be limited to no more than five acres and 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 town, county or public utility that uses land from
the land bank would be required to pay an amount equal to the value of
the state lands into an account for acquisitions to the forest
preserve. Any public utility project would have to be approved by the
town or towns where the project is proposed.

 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 aeneral 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.

This amendment and the 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 :
The amendment authorized by the concurrent resolution would not take
effect until second passage of an identically worded concurrent
resolution and subsequent voter approval at a general election.