PROTECT Applauds Passage of new Article XIV Constitutional Amendment and Enabling Legislation

June 29, 2017

New “Health and Safety Land Accounts” amendment will be on ballot in November 2017; enabling legislation sets out process for how this complicated amendment will be administered.

Protect the Adirondacks applauds passage last night by the State Assembly of “2nd passage” of the proposed “Health and Safety Land Accounts” amendment to Article XIV, Section 1 of the NYS Constitution. The Assembly also passed, as part of an omnibus bill, the enabling legislation that sets out how this complicated amendment will be administered. As part of a slew of session ending agreements, the State Senate will pass the enabling legislation in its session today.


This proposed amendment authorizes location of broadband, other utilities and bike paths along state highway corridors traversing the Forest Preserve, authorizes location of broadband and other utilities in county, town and village road corridors that traverse the Forest Preserve, and authorizes the creation of a 250-acre “health and safety land account” for the Adirondack and Catskill Parks principally for maintenance and management of local roads and for location of utilities. The “health and safety land account” can also be used for the location and construction of municipal water wells.

This new legislation meets the critical needs identified by Adirondack local governments for greater flexibility in management and maintenance of local highways and bridges, utilizing state and local highways for broadband, other utilities and bike paths. This new amendment also creates a new health and safety land account that provides Forest Preserve lands for approved uses for various highway maintenance projects and the construction of wells for public water supplies.

The text of the enabling legislation and amendment are both provided at the end of this post.

“Protect the Adirondacks salutes the strong work of Steven Englebright, the Chairman of the Assembly Environmental Conservation Committee. He provided principled leadership to uphold the forever wild clause while working to meet the needs of the rural communities of the Catskill and Adirondack Parks. We also commend the work of Assembly Members Billy Jones from northern Franklin County and Dan Stec from Warren County for helping to get these bills through the State Assembly. Senator Little played a key role on moving this legislation through the State Senate,” said Peter Bauer, executive director of Protect the Adirondacks.


“The new amendment will help to continue to build and develop communities throughout the Adirondacks. Extending broadband fiber cable to remote communities of the Adirondacks will help to expand educational and economic development opportunities. This amendment also makes it easier for local roads maintenance projects where roads are bordered by the Forest Preserve, siting of municipal water wells, and for building a network of bike paths between Adirondack communities,” said Peter Bauer.

The “enabling legislation” for this amendment sets out a process for how projects can be undertaken and reviewed by the Department of Environmental Conservation. It’s important to the basic functioning and management of the Forest Preserve that enabling legislation be passed at the same time as 2ndpassage of the amendment. Some larger projects will require legislative review after the DEC review in a process similar to a municipal parklands alienation process.

ARTICLE XIV, Section 1 Amendment to create new Health and Safety Land Account

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

1 Section 1. Resolved (if the Senate concur), That section 1 of article
2 14 of the constitution be amended by adding a new undesignated paragraph
3 to read as follows:
4 Notwithstanding the foregoing provisions and subject to legislative
5 approval prior to actual transfer of title, a total of no more than two
6 hundred fifty acres of forest preserve land shall be used for the estab-
7 lishment of a health and safety land account. Where no viable alterna-
8 tive exists and other criteria developed by the legislature are satis-
9 fied, a town, village or county may apply, pursuant to a process
10 determined by the legislature, to the health and safety land account for
11 projects limited to: address bridge hazards or safety on county high-
12 ways, and town highways listed on the local highway inventory maintained
13 by the department of transportation, dedicated, and in existence on
14 January first, two thousand fifteen, and annually plowed and regularly
15 maintained; elimination of the hazards of dangerous curves and grades on
16 county highways, and town highways listed on the local highway inventory
17 maintained by the department of transportation, dedicated, and in exist-
18 ence on January first, two thousand fifteen, and annually plowed and
19 regularly maintained; relocation and reconstruction and maintenance of
20 county highways, and town highways listed on the local highway inventory
21 maintained by the department of transportation, dedicated, and in exist-
22 ence on January first, two thousand fifteen and annually plowed and
23 regularly maintained, provided further that no single relocated portion
24 of any such highway shall exceed one mile in length; and water wells and
25 necessary appurtenances when such wells are necessary to meet drinking

EXPLANATION–Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD89016-01-7

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1 water quality standards and are located within five hundred thirty feet
2 of state highways, county highways, and town highways listed on the
3 local highway inventory maintained by the department of transportation,
4 dedicated, and in existence on January first, two thousand fifteen, and
5 annually plowed and regularly maintained. As a condition of the creation
6 of such health and safety land account the state shall acquire two
7 hundred fifty acres of land for incorporation into the forest preserve,
8 on condition that the legislature shall approve such lands to be added
9 to the forest preserve.
10 § 2. Resolved (if the Senate concur), That article 14 of the constitu-
11 tion be amended by adding a new section 6 to read as follows:
12 § 6. Where state, county, or town highways listed on the local highway
13 inventory maintained by the department of transportation, dedicated and
14 in existence on January first, two thousand fifteen, and annually plowed
15 and regularly maintained, traverse forest preserve land, public utility
16 lines, limited to electric, telephone, broadband, water or sewer lines
17 as defined in law, may, consistent with standards and requirements set
18 forth in law, and following receipt of all permits or authorizations
19 required by law, be buried or co-located within the widths of such high-
20 ways as defined in law, and bicycle paths may, consistent with standards
21 and requirements set forth in law, and following receipt of all permits
22 or authorizations required by law, be constructed and maintained within
23 the widths of such highways, as defined in law; provided, however, when
24 no viable alternative exists and when necessary to ensure public health
25 and safety, a stabilization device for an existing utility pole may be
26 located in proximity to the width of the road, as defined in law;
27 provided further, that any co-location, burial, maintenance or
28 construction shall minimize the removal of trees or vegetation and shall
29 not include the construction of any new intrastate natural gas or oil
30 pipelines that have not received all necessary state and local permits
31 and authorizations as of June first, two thousand sixteen.
32 § 3. Resolved (if the Senate concur), That the foregoing amendment be
33 submitted to the people for approval at the general election to be held
34 in the year 2017 in accordance with the provisions of the election law.

ENABLING LEGISLATION

PART L

24 Section 1. Article 9 of the environmental conservation law is amended
25 by adding a new title 21 to read as follows:
26 TITLE 21
27 FOREST PRESERVE HEALTH AND SAFETY LAND ACCOUNT AND PUBLIC UTILITY
28 IMPROVEMENTS
29 Section 9-2101. Health and safety land account creation and use.
30 9-2103. Highway right of way public utility improvements.
31 9-2105. Department reporting.
32 § 9-2101. Health and safety land account creation and use.
33 1. Definitions. For purposes of this section:
34 a. “eligible project” means a public health or safety-related project
35 necessary where no viable alternative exists, limited to the following:
36 (i) address bridge hazards to improve public safety on county highways
37 and town highways;
38 (ii) elimination of the hazards of dangerous curves and grades on
39 county and town highways to improve public safety;
40 (iii) relocation, maintenance, and reconstruction of county highways
41 and town highways, including associated culverts, for the purpose of
42 addressing public safety provided that no relocation of any single relo-
43 cated portion shall exceed one mile in length;
44 (iv) water wells and necessary appurtenances when such wells are
45 necessary to meet drinking water quality standards and are located with-
46 in five hundred thirty feet of state highways, county highways and town
47 highways; and
48 (v) stabilization devices for an existing utility pole adjacent to, or
49 no more than the minimum distance from the width of highway necessary to
50 comply with standard safety practices.
51 Eligible projects shall not include the use of chemicals/herbicides
52 for clearing state land; the removal of trees and vegetation shall be
53 minimized and the area shall promptly be restored to pre-project condi-
54 tions to the maximum extent practicable.

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1 b. “county highway” shall have the same meaning as defined in subdivi-
2 sion four of section three of the highway law.
3 c. “forest preserve expansion fund” shall mean the fund established
4 pursuant to section ninety-seven-e of the state finance law.
5 d. “project sponsor” means a town, village, or county located in the
6 counties of Clinton, Delaware, Essex, Franklin, Fulton, Greene, Hamil-
7 ton, Herkimer, Lewis, Oneida, Saratoga, Saint Lawrence, Sullivan,
8 Ulster, Warren and Washington.
9 e. “no viable alternative” means that no other option exists for the
10 eligible project to address ongoing public health or safety concerns
11 other than through the use of state lands.
12 f. “state highway” means a state highway as defined in subdivisions
13 one, two and three of section three of the highway law.
14 g. “state lands” means lands owned by the state in forest preserve
15 counties that are under the jurisdiction of the department.
16 h. “town highway” means a town highway, as defined in subdivision five
17 of section three of the highway law, in existence as of January first,
18 two thousand fifteen, listed on the local highway inventory maintained
19 by the department of transportation, and annually plowed and regularly
20 maintained.
21 i. “width of the highway” shall have the same meaning as paragraph k
22 of subdivision one of section 9-2103 of this title.
23 2. Following approval by the legislature of two hundred fifty acres of
24 land to be added to the forest preserve, a health and safety land
25 account of not more than two hundred fifty acres is created for use by
26 project sponsors for eligible projects necessary to protect health and
27 safety where no viable alternative is available. The account will be
28 administered by the department.
29 3. A project sponsor with an eligible project may apply to the health
30 and safety land account to receive fractional or whole acreage for an
31 eligible project. Such application shall include:
32 a. a resolution from the governing body of the project sponsor that
33 includes:
34 (i) attestation that the project is necessary to address public health
35 or safety and no viable alternatives exist;
36 (ii) attestation that such lands will only be used for eligible
37 purposes and that any real property acquired shall not be sold, leased,
38 exchanged, donated or otherwise disposed of or used for other than the
39 eligible purposes for which it was approved without the express authori-
40 ty of an act of the legislature.
41 b. a detailed summary of the proposed eligible project, including the
42 whole action and all related activities, a detailed summary of the
43 alternatives the project sponsor explored prior to arriving at the
44 conclusion there were no viable alternatives;
45 c. specific metes and bounds, including total proposed acreage;
46 d. a narrative about the project, including a justification that the
47 size of the fractional or whole acreage sought for such eligible project
48 from the health and safety land account is the minimum amount required;
49 e. monies at least equivalent to the fair market value of the state
50 land proposed to be conveyed;
51 f. any necessary permits and authorizations; and,
52 g. an accurate survey.
53 4. Immediately upon determining that an application is complete, the
54 department shall cause a notice of application, which shall also include
55 the time period for public comments, to be published in the next avail-
56 able state register and environmental notice bulletin as well as in a

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1 newspaper having general circulation in the area in which the eligible
2 project is proposed to be located. Newspaper publications shall be
3 provided by the project sponsor.
4 5. The department shall hold a public hearing on each eligible project
5 at which the public shall be given an opportunity to be heard.
6 6. The department, following consultation with the department of
7 transportation to determine that any required authorization has been
8 provided, shall only deem a project sponsor eligible to receive frac-
9 tional or whole acreage from the health and safety land account follow-
10 ing a determination that:
11 a. the project meets the eligible project criteria, is necessary to
12 protect public health or safety and the eligible project has no viable
13 alternative on land not owned by the state;
14 b. the project minimizes adverse environmental impact to the maximum
15 extent practicable;
16 c. the project will not adversely impact viewsheds or lands with
17 historical, ecological, environmental or recreational value, as deter-
18 mined by the department based on a resource inventory and assessment;
19 d. the monies to be paid by the project sponsor into the forest
20 preserve expansion fund, are at least equivalent to the fair market
21 value of the state land proposed to be conveyed; and
22 e. the project minimizes the fractional or whole acreage from the
23 health and safety land account to the maximum extent practicable.
24 7. Once an application has been approved the commissioner shall cause
25 to be prepared an accurate survey map showing the boundaries of all
26 state land proposed to be conveyed and shall notify the legislature.
27 8. a. Prior to the actual transfer of title or issuance of letters
28 patent for an eligible project that is longer than one quarter mile that
29 has been approved by the department, the legislature shall approve each
30 eligible project and the monies to be paid into the forest preserve
31 expansion fund equal to or greater than the fair market value of the
32 acreage to be conveyed from the health and safety land account. Once
33 approved by the legislature, title to the land shall be approved and the
34 deed to the people of the state of New York of any lands dedicated shall
35 be approved by the attorney general as to form and manner of execution
36 and recordability prior to its delivery.
37 b. Prior to the actual transfer of title or issuance of letters patent
38 for an eligible project that is less than one quarter linear mile total,
39 which shall run and be measured parallel to the county highway or town
40 highway, and which runs no more than ten feet perpendicular beyond the
41 width of the highway which shall mean three rods or the deeded, recorded
42 municipal or state right of way or municipal or state easement in the
43 existence as of January first, two thousand fifteen and, which has been
44 approved by the department, title to land shall be approved and the deed
45 to the people of the state of New York of any lands dedicated shall be
46 approved by the attorney general as to form and manner of execution and
47 recordability prior to its delivery.
48 9. Real property acquired, developed, improved, restored or rehabili-
49 tated by or through a project sponsor pursuant to this section shall not
50 be leased, exchanged, donated or otherwise disposed of or used for other
51 than the eligible project for which it was approved without the express
52 authority of an act of the legislature. When the project sponsor deter-
53 mines such eligible project is no longer needed, the lands shall revert
54 to the state for inclusion in the forest preserve. The department shall
55 prescribe the terms and conditions for the removal of any improvements
56 to the land and restoration of the land to a natural, vegetative state.

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1 § 9-2103. Highway right of way public utility improvements.
2 1. Definitions. For purposes of this section:
3 a.”county highway” shall have the same meaning as defined in subdivi-
4 sion four of section three of the highway law.
5 b. “eligible project” shall mean burial or co-location of a public
6 utility line or construction and maintenance of bicycle paths by a
7 project sponsor within the width of a highway of a town highway, county
8 highway or state highway that traverses state forest preserve land.
9 c. “project sponsor” shall mean a village, town, a county, located in
10 the counties of Clinton, Delaware, Essex, Franklin, Fulton, Greene,
11 Hamilton, Herkimer, Lewis, Oneida, Saratoga, Saint Lawrence, Sullivan,
12 Ulster, Warren and Washington or, for:
13 (i) bicycle paths, the department of transportation,
14 (ii) for water lines, a public water supplier; or
15 (iii) for electric, telephone or broadband lines, a public utility
16 company.
17 d. “public utility company” shall have the same meaning as such term
18 is defined in section two of the public service law; provided, however,
19 that for broadband projects a person subject to article eleven of the
20 public service law shall be included.
21 e. “public utility line” shall mean only electric, telephone, broad-
22 band, water or sewer lines, including any necessary conduit used to
23 protect such lines. Public utility line shall not include the
24 construction of any new intrastate natural gas or oil pipelines that
25 have not received all necessary state and local permits and authori-
26 zations as of June first, two thousand sixteen.
27 f. “public water supplier” shall mean a county or town water improve-
28 ment district, village, New York city, public benefit corporation or
29 public authority established pursuant to state law and empowered to
30 construct and operate a municipal water management facility, as defined
31 in section twelve hundred eighty-one of the public authorities law.
32 g. “state highway” shall mean a state highway as defined in subdivi-
33 sions one, two and three of section three of the highway law.
34 h. “state lands” shall mean lands owned by the state in forest
35 preserve counties that are under the jurisdiction of the department.
36 i. “town highway” shall mean a town highway, as defined in subdivision
37 five of section three of the highway law, in existence as of January
38 first, two thousand fifteen, listed on the local highway inventory main-
39 tained by the department of transportation, and annually plowed and
40 regularly maintained.
41 j. “water supply projects” shall mean drinking water wells.
42 k. “width of the highway” shall mean three rods or the deeded,
43 recorded municipal or state right of way or easement in existence as of
44 January first, two thousand fifteen.
45 2. Pursuant to approval by the department and the department of trans-
46 portation and following a public hearing on each eligible project at
47 which the public shall be given an opportunity to be heard, a public
48 utility line may be co-located within or buried beneath the width of the
49 highway of any state highway, county highway, or town highway.
50 3. A project sponsor for an eligible project within the width of the
51 highway shall submit an application for a permit to the department that
52 at minimum shall include:
53 a. a resolution from the governing body of the project sponsor, or in
54 the case of a public utility seeking to utilize the width of highway of
55 a town highway, the governing body of the town, or the width of highway
56 of a county, the county governing board, that includes:

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1 (i) approval of the project;
2 (ii) attestation that such width of highway lands will only be used
3 for eligible purposes;
4 (iii) attestation that the project will minimize the removal of trees
5 and vegetation and restore the area to pre-project condition to the
6 maximum extent practicable.
7 b. specific metes and bounds, including total proposed acreage of the
8 width of highway land sought;
9 c. a narrative about the project, including a justification;
10 d. any necessary permits and authorizations; and,
11 e. an accurate survey.
12 4. Immediately upon determining that an application is complete, the
13 department shall cause a notice of application, which shall also include
14 the time period for public comments, to be published in the next avail-
15 able state register and environmental notice bulletin as well as in a
16 newspaper having general circulation in the area in which the eligible
17 project is proposed to be located. Newspaper publications shall be
18 provided by the project sponsor.
19 5. The department shall hold a public hearing on each eligible project
20 at which the public shall be given an opportunity to be heard.
21 6. The department, following consultation with the department of
22 transportation to determine that any required authorization has been
23 provided, shall only approve an application for an eligible project
24 permit following a determination that:
25 a. the eligible project meets the eligible project criteria;
26 b. the eligible project minimizes adverse environmental impact to the
27 maximum extent practicable; and
28 c. the eligible project will not adversely impact lands with environ-
29 mental, ecological or recreational value, as determined by the depart-
30 ment based on a resource inventory and assessment.
31 7. After a hearing and opportunity to be heard, if the commissioner
32 determines that a project sponsor is utilizing land for a purpose other
33 than as authorized by the department, the commissioner may require
34 removal of any improvements to the land and restoration of the land to a
35 natural, vegetative state.
36 8. The department is authorized to promulgate such rules and regu-
37 lations as may be necessary to implement and administer the provisions
38 of this article.
39 § 9-2105. Department reporting.
40 1. The department shall issue an annual report to the legislature
41 detailing the use of the health and safety land account and the highway
42 right of way public utility improvement permits including: the number of
43 applications received; the number of eligible projects applications
44 approved and denied; the project description, narrative and acreage of
45 eligible projects; the cumulative total of eligible projects listed by
46 project sponsor; total deposits by each project sponsor into the forest
47 preserve fund; annual disbursements from the forest preserve fund and
48 the amount of land acquired with such disbursements; total number of
49 public utility improvement permits issued; and the cumulative total and
50 project type of permits issued listed by project sponsor.
51 2. The information contained in such report shall also be made avail-
52 able on the department’s website and updated no less than annually.
53 § 2. Section 97-e of the state finance law, as amended by chapter 637
54 of the laws of 1960, is amended to read as follows:
55 § 97-e. Forest preserve expansion fund. 1. There is hereby established
56 in the state treasury a special fund, to be known as the forest preserve

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1 expansion fund, which shall consist of and into which shall be paid all
2 moneys derived from the sale of certain forest preserve lands specified
3 in section twenty-four of the public lands law, monies received from a
4 project sponsor of an eligible project for a health and safety land
5 account transaction pursuant to section 9-2101 of the environmental
6 conservation law and such other moneys as may be paid into said fund
7 pursuant to law. The moneys in such fund shall be expended only for the
8 acquisition of additional lands for the forest preserve within either
9 the Adirondack or Catskill park as now fixed by law. Upon appropriation
10 by the legislature, the [conservation] department of environmental
11 conservation may use such moneys or any portion thereof for the acquisi-
12 tion of such additional lands subject to the approval of title thereto
13 by the attorney general. All payments from such fund shall be made by
14 the department of taxation and finance after audit by and upon warrant
15 of the comptroller, on vouchers approved by the [conservation] commis-
16 sioner of environmental conservation.
17 2. The [conservation] commissioner of environmental conservation is
18 authorized to accept, in the name of the people of the state of New
19 York, any gift or bequest of moneys to be paid into such forest preserve
20 expansion fund and to be expended and disbursed as provided in subdivi-
21 sion one of this section.
22 § 3. The enactment of this legislation shall be deemed to meet the
23 legislative approval requirement pursuant to subdivision 8 of section
24 9-2101 of the environmental conservation law, for an eligible project as
25 defined in section 1 of section 9-2101 of the environmental conservation
26 law, that consists of the relocation of a county-owned highway structure
27 taken out of service in 2009, which spans the Schroon River in the town
28 of Chester in the county of Warren. Such authorization is conditioned on
29 the receipt by such project of all required permits and approvals and
30 compliance with all the other criteria identified in section 9-2101 of
31 the environmental conservation law.
32 § 4. This act shall take effect on the same date and in the same
33 manner as a “CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing
34 an amendment to article 14 of the constitution, in relation to allowing
35 public utility lines and bicycle paths on certain state lands in the
36 forest preserve and establishing a forest preserve health and safety
37 land account” takes effect, in accordance with section 1 of article 19
38 of the constitution.

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