August 4, 2009

Notes from the Public Hearing held Tuesday, August 4, 2009, at 7:00 PM, at Keene Central School in Keene Valley. The following Town Board Members were present: William B. Ferebee, Supervisor, Paul R. Martin, Robert M. Biesemeyer, Marcy A. Neville and Lawrence Jaques, Members of Council. Also present were: 34 interested citizens, Debra Whitson, Town Attorney and Ellen Estes, Town Clerk.

Mr. Ferebee called the Public Hearing to order at 7:00 PM and made introductions of the Board.

He explained the purpose of tonight’s hearing was to discuss the Old Mountain Road and to get direction of what the people want to do with it.

Mr. Ferebee gave a brief history of the road saying the road is 3½ miles long and that the last maintenance done on this road by the Town was in 1996. He said that in 2005, the Town Board authorized a Resolution of Qualified Abandonment, but explained that this resolution was never drawn up and filed by the Town Attorney so it was never validated.

Debra Whitson explained that this road was created in 1810 by the State and a right of way was turned over to the Town, which obligates the Town to maintain the road for public use. She said the 2005 resolution Mr. Ferebee spoke of was an ineffective resolution.

She said there are two ways of abandoning roads and went on to explain.

She said if the State abandoned the road through qualified abandonment using Highway Law Section 212, the Town would be relieved of their obligation to maintain the road, however, she also said that doing this would extinguish the public easement entirely. She said this option could be used because of non-use over time due to being impassable for passenger cars.

She said another option was for the Town to use a qualified abandonment under Highway Law 205-2 which would abandon the road to motorized vehicles, absolving the Town of liability, while not extinguishing the public easement for pedestrian, ski, etc. traffic. She said this option can be used if for the preceding two years there has been less than 2 motorized vehicles per day using it.

She said the Town Board is here today to solicit public input.

Mr. Ferebee responded to a question asked by Wendell Wells, saying there are no Town roads designated for snowmobile use and that ATVs are not allowed on any roads in New York State.

Mr. Wells said he disputed that.

Spen Nye asked about the usage of utility vehicles (UTVs) similar to tractors.

Mr. Jaques compared these vehicles to a gator and said there didn’t used to be laws governing them, but saying he wasn’t sure anymore.

Mr. Nye responded saying whether snowmobiles, UTVs, horses or bikes, either stop everything from using the trail or let everything go. He also asked about using ATVs during hunting season.

Mr. Biesemeyer stated that the Town Board realized after the Court ruling on the McCauley case that the Old Mountain Road was still deemed a Town road. He said that was why this public hearing is being held to hear the public and move forward.

Mr. Nye referred to a past conversation he had with Mr. Biesemeyer, they did not seem to agree on its content. Again, Mr. Biesemeyer said the road has been deemed a road and he would like to see the issue put to referendum.

Mr. Martin asked Ms. Whitson, ”If this is a Town road can the Town control the road by allowing motorized vehicles during hunting season and then closing it to them and opening it to other venues?” Ms. Whitson said that in general, yes, the Town can control it.

Robin Lawrence asked if it was a Town road, why it was not taken care of, she asked if it was the Highway Superintendent’s choice.

Mr. Martin said that in his 28 years on the Town Board money has not been budgeted for that road.

Mrs. Lawrence asked for confirmation that the Town had been stipulated to maintain it.

David Thomas-Train asked if it was Town land or State land.

Ms. Whitson explained that in 1810 the State created an easement over privately owned land which later became State land, saying though, that the Town owns the easement.

There was a gentleman in the audience who offered the information that Keene can not abandon their side of the road unless North Elba also abandons their side.

Mr. Ferebee responded that North Elba is planning to do this concurrently with Keene.

The gentleman asked what would be done with the road after the qualified abandonment.

Mr. Ferebee responded the Town will decide its use.

The gentleman then asked if the Town knew that the laws in 1810 said that any roads that were created had to be 4 rods wide.

Mr. Ferebee said he was sure the State would not step up to that fact and admit it was 4 rods wide.

Mr. Biesemeyer said if it was 64/66 feet wide maybe it was wide enough for both activities.

Mr. Wells said he remembered reading in the Judge’s decision that that road is 66 feet wide.

Ms. Whitson said that an Administrative Judge’s decision is not binding in a higher court and this could end up in the NYS Supreme Court.

Roy Sheasby said that road has not been used as a road for 50 years and why give up rights to its control now.

Mr. Ferebee said any resolution to abandon could be rescinded in the future.

Ms. Neville stated that a qualified abandonment would relieve the town from the liability of maintenance but doesn’t give up the easement.

Ms. Whitson read a statement of the law regarding repairs saying that using 205-2 relieves the Town of their obligation to repair and maintain but the easement continues to exist.

Mr. Biesemeyer said the issue right now is how to deal with the road.

Mr. Thomas-Train asked about the land being forest preserve, Ms. Whitson responded that changes could be made by the State Legislature who created the road.

Robin Lawrence asked if there will be a referendum on November’s ballot.

Mr. Ferebee said yes.

She asked what brought this on.

Mr. Biesemeyer responded that this was brought back due to the court during the McCauley case determining that it is a Town Road.

Tony Lucas shared the information that the road is being well maintained by the ski touring group.

Mr. Ferebee and Mr. Biesemeyer both responded that it is not being maintained by the Town.

There was a gentleman in the audience who contributed that the bridges may need to be maintained by the Town.

Chick Lawrence offered that this road used to be maintained by the North Country School who used to use it with their horses.

Anne Hurd said she lives at the end of Beede Road and her suggestion is to urge community consistency for usage and that signage be used to maintain it.

Wendell Wells gave a brief history of the road saying that he has used the road in the past for skiing and snowmobiling. He said he appreciated the fact that the Town Board offered a Public Hearing before taking action.

He said that in 2004 a Committee was formed to work on a solution but said that nothing was ever presented.

He said he is in favor of both skiing and snowmobiles and felt there is room for both.

He said it was his understanding that in season, snowmobiles can be operated on any road not maintained by the Town.

Brent Lawrence commented that at the Au Sable Lakes, snow machines are used to make the trails to get into camp.

Mr. Lucas said that you would have to be careful allowing both, skiers and snowmobiles on the trails, stating that in New Hampshire they are separated, he said there would have to be quidelines.

Teresa Palen told of an experience she had while skiing when 3 snowmobiles came along and she was forced to jump from the trail.

Brian Howzer spoke on the wider precedent saying that Commissioner Pete Granish had overstepped. He said there will be a departmental ruling and that the Town may want to delay their decision until this challenge ruling has been decided.

Ms. Whitson explained again that the 212 Law is not available to the Town, saying that if the State uses this it would extinguish the public easement and DEC would decide on the use.

Mr. Biesemeyer asked if as a Town Board, they could control the use like allowing motorized vehicles during hunting season for residents only.

Another gentleman asked what other ideas of good use would be.

Mr. Biesemeyer responded that his opinion would be to keep a skiing trail and not allow snowmobiles. He said he doesn’t understand who would want to use snowmobiles there since there is no where to go and no place to load and unload.

Rose VanWormer asked who would be responsible for the maintenance after a qualified abandonment.

Ms. Whitson said no one, it would be not be maintained.

Mr. Martin gave a brief history of the road saying the situation may be different if a lot of people used the road and said he would like to accommodate the people of the Town of Keene.

Melissa Eissinger spoke about safety, saying that small children use the Jack Rabbit Trail for skiing and that the road is very narrow. She said she uses this trail daily and would be very sad to lose that ability.

Brent Lawrence asked Ms. Eissinger if while skiing with children, one got hurt, what would be the quickest way to get them medical attention.

Tony Goodwin gave a history of the beginning of the Jack Rabbit Trail. He said they consulted with George Buysse, then the Highway Superintendent and Chuck Gillman, then the Supervisor, who both believed this to be a Town Road and were in favor of the maintenance being done for skiing. He said that in 1986/87, the Town crew helped one day and in 1991, when Tom Whitney was Superintendent and this was still considered a Town Road, prison labor worked on the trail.

He said that in the past, ATVs have been permitted to use the trail slowly during hunting season.

He said that after Bruce Reed was Superintendent, DEC had him go in with a crew, after a flood and fix a washout.

He said he felt because this area is forest preserve, that the two McCauley cased have been test cases.

Mr. Goodwin said that no matter how wide the easement is, he didn’t feel it was feasible to go any wider and said that he thought Mr. Reed would concur.

He said he would like to see the qualified abandonment having skiing occur on this road and snowmobiling allowed on the Bartlett Road so everyone could have a little enjoyment.

When asked why by a woman in the audience, Ms. Whitson responded saying the Board is just trying to keep the Town from being responsible.

Mr. Jaques said the Board is here tonight to hear what the people want, he said that he would like to see dual use.

Anita Sayers spoke about the peacefulness of human powered sports saying she felt that is why people come here, she also said as a preschool teacher, she would like to see the users take turns.

Mr. Lucas said he would not want to see children hurt by snowmobiles and encouraged safe rules.

Mr. Lawrence asked if the people were here tonight to decide if the Town should keep the road and then decide on the restrictions.

The Board said yes.

Dominic Eissinger said he would like to be on record saying that he strongly felt he would like to see the ski trail maintained.

Mr. Winterer spoke of snowmobiles not being allowed on Town roads, referring to Alstead Hill Lane and asked whose parking lot was at the end of the road.

Armand Lawrence said the parking lot at the end of the road has always been the turn around area for the Town trucks.

Mrs. Palen said she didn’t know about the turn around but said that the Town does not plow or maintain the parking lot.

Spen Nye said the road should be open for everyone or closed to everyone.

The gentleman who had been offering information said that the Town can decide to do a qualified abandonment preventing the State from closing it by section 212.

Richard Erenstone, who said he has been skiing on this road for 38 years, said he felt the road should be abandoned for reasons of health, safety and liability.

He spoke of the safety of having skiers and snowmobiles on this steep, narrow trail simultaneously.

David Thomas-Train said he was troubled over this skier versus snowmobile issue and said there is plenty of good and bad to go around. He suggested going ahead with the qualified abandonment and then looking into redoing the snowmobile plan suggesting that snowmobiles be used on the Bartlett Road and the Old Mountain Road be used for skiing.

Anne Hurd asked who would cover enforcement and suggested that the users co-exist until better choices are made for its designation.

Mrs. Palen said she also would like to see peaceful co-existence saying there should not be a match over which is better.

Brent Lawrence said the Whitneys, who have camps in that area and have always use this trail for hunting with ATVs, should have the right to continue.

Mr. Ferebee thanked everyone for coming and the meeting was adjourned at 8:31 PM.

Ellen S. Estes, Town Clerk

August 11, 2009

William B. Ferebee, Supervisor

Paul R. Martin, Robert M. Biesemeyer, Marcy A. Neville and

Lawrence Jaques, Members of Council