Matter of Protect the Adirondacks! Inc. v New York State Dept. of Envt. Conservation

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Matter of Protect the Adirondacks! Inc. v New York State Dept. of Envt. Conservation 2013 NY Slip Op 32083(U) August 22, 2013 Supreme Court, Albany County Docket Number: 2137-13 Judge: George Ceresia Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY In The Mater of the Application of PROTECT THEADIRONDACRS! IN%., Plaintiff-Petitioner, For A Judgment Pursuant to Section 5 of Article 14 of the New York State Constitution and CPLR Article 78, NEW YORK STATE DEPARTMENT OF ENVIRONMENT& CONSERVATION and ADIRONDACK PARK AGENCY, Defendants-Respondents . Supreme Court Albany County Article 78 Term Hon. George B. Ceresia, Jr., Supreme Court Justice Presiding WZI # 01-13-ST4541Index No. 2137-13 Appearances: Caffry & Flower Attorney For Plaintiff-Petitioner 100 Bay Street G ¬ensFalls, NY 12801 (John W. Caffq, Esq., of Counsel Eric T. Scheideman Attorney Genera1 State of New York Attorney For Respondent The Capitol Albany, New York 12224 (Susan L. Taytor, Assistant Attorney General, and Lawrence A. Rappoport, Associate Attorney General, of Counsel) DECISION/ORDER George B. Ceresia, Jr., Justice [* 2] The plaintiff-petitioner (hereinafter Petitioner ) is a not-for-profit corporation dedicated to the protection and preservationof the lands of tbe Adirondack Forest Preserve. It has commenced the above-captioned combined actiodproceeding to halt construction and development of new snowmobile trails within the Forest Preserve. The complaint-petition contains three causes of action. The first, in the form of a plenary action, generally alleges that constructionand development of the snowmobile trails violates NY Constitution article XrV, 5 1, which requires that the Forest Preserve remain forever wild. The petitioner alleges that a substantial amount of timber is being removed, and that the trails being constructedare not consistent with the wild forest nature, dl in violation of NY Constitution article XTV, 6 1 The petitioner seeks declaratory relief and a permanent injunction to prevent damage to, and illegal use of the Forest Preserve. In the second cause of action, pursuant to CPLR Article 78, the petitioner objects to the practice of the New York State Department of Environmental Conservation (DEC) of issuing temporary revocable permits ( TRPs ) to towns within the Adirondack Park to allow towns to maintain and groom snowmobile trails with tracked vehicles known as snowcats; and to the practice of issuing Adopt-A Natural Resource agreements ( M other municipalities and snowmobile clubs to authorize with ) such entities to groom snowmobile trails within the Forest Preserve. It is argued that under the Adirondack Park Master Plan the only motor vehicles allowed within the Forest Preserve are snowmobiles. Petitioner s third cause of action, again pursuant to CPLR Article 78, alleges that the operation of snowcats and other such vehicles on Forest Preserve trails violates the rules and regulations of the DEC, specifically 6 NYCRR 0 196.1 (a). The actiodproceeding was commenced by the filing of the summons, notice of 2 [* 3] petition and complaint on April 15, 2013. The respondents made a motion to convert petitioner s fmt cause of action to a special proceeding under CPLR Article 78, and to dismiss the petitioner s second and third causes of action. The motion was rejected by the petitioner a untimely, prompting the respondents to make a motion to compel acceptance s of the fmt motion. The petitioner has cross-moved for a default judgment against the respondents or, in the alternative, for a preliminaq injunction to halt construction of the snowmobile trails, Petitioner s Cross-Motion For A Default Judgment and Respondent s Motion To Compel Acceptance of Its Motion To Convert and For Dismissal It is undisputed that, pursuant tu CPLR 307, DEC was served with the summons, notice of petition and comp1ainVpetition on April 17,2013, the Adirondack Park Agency APA was served on April 18,2013, and the Attorney General was served on April 19, 20 13. The petitioner maintains that the respondents were required to serve an answer with respect to the surnmom and the first cause of action of the complaint/petition on or before May 9,2013, even though the notice of petition contained a return date of June 28,2013 (which, the Court observes was adjourned, on consent, to July 26,2013). Counsel for the respondents maintains that generally, i hybrid actions/ proceedings, n the plaintifflpetitioner and the defendadrespondent usually come to an agreement with respect to a schedde for service of responsive papers, so that a single answer can be served in response to the complainvpetition. In furtherance of the foregoing, defense counsel indicates that he contacted the attorney fur the petitioner on May 15 or 16,20 13, in an effort to discuss such a schedule, but was unsuccessll. After it became apparent to defense 3 [* 4] counsel that such an agreement would not be possible he, on June 2 1,201 3 made the motion to convert the fmt cause of action to a special proceeding, and to dismiss the second and third causes of action. In response, the attorney for the petitioner indicates that the respondents, under CPLR 320, had twenty days (until May 9,2013) to serve an answer tu petitioner s first cause of action; and that when respondent s attorney attempted to contact him on May 15 or 16,2013, the respondents were atready i default i serving an answer. n n Counsel maintains, inferalia, that the respondents have presented no excuse for their default i serving an answer, and therefore the petitioner is entitled to a default judgment. n Supreme Court possesses the discretion to permit late service of an answer upon a showing of a reasonable excuse for the delay and a meritorious defense to the complaint (Puchner v Nastke, 91 AD3d 1261, 1261-1262 [3d Dept., 20121, citing CPLR 3012 Id]; WilUams v Charlew Constr. Co.. Inc., 82 AD3d 1491,1492,918 NYS2d 764 [20 1 1I; Kostun v Gower, 61 AD3d 1307,1308 [2009]; Huckle v CDH Cop., 30 AD3d 878,879 [2006]). Moreover, CPLR 2004 permits a court to grant an extension of time upon such terms as may be just and upon good cause shown, whether the appIication for extension is made before or after the expiration of the time fixed. (Saha v Record, 307 AD2d 550,551 (3d Dept., 20031). Factors to be considered on an appIication for an extension include the stated reason for the delay, the length of the delay, any prejudice to the opposing parties, whether the moving party was in default prior to seeking the extension and, finally, whether an affidavit of merit has been proffered @.). The CPLR does not address the procedure to be folIowed with regard to a hybrid actionlproceeding. The use by a plaintiff/petitionerof a combined complaintlpetition affords 4 [* 5] the p1aintiWpetitioner the advantage of preparing a single pleading, while requiring the defendantlrespondent to prepare two separate answers, which must be served at different times. The respondents have demonstrated that the very brief delay was inadvertent, unintended and not willful. There is a smng ppblic policy in favor of resolution of cases on the merits. To the extent that the default here may be attributable to Saw office failure, the Court finds that the brief default should be excused i the &teres& of justice n & CPLR 2005; Watson v Potlacchi, 32 AD3d 565, 565-566 [3rdDept., 20061). In addition, the respondents have demonstratd a meritorious defense to the cornpiaidpetition. Moreover, there has been no showing of prejudice to the petitioner by the datively modest delay. Based upon all of the foregoing, the Court finds that petitioner s motion for a default judgment against the respondents should be denied, and respondents motion to compel the petitioner to accept their motion to convert and dismiss be granted (E Matter of Russo v Jorling, 2 14 AD2d 863 13d Dept., 19951 lv denied 86 NY2d 705 [19951; see also CefaIa v 95 AD2d 839 [3d Dept., 14831). Because the petitioner has addressed said motion on the merits, by affidavit and memorandum of law, the Court finds that it is now fully submitted for purposes of determination. Respondents Motion To Convert Petitioner s First Cause of Action to A CPLR Article 78 Proceeding Petitioner s h t cause of action, i sum and substance, argues ,thatthe actions of the n respondents, i causing snowmobile community connector trails to be conkructed, have n violated, and are continuing to violate New York Constitution artick XIV, 5 5 I because: [* 6] (a) a substantial amount of timber will be cut and destroyed in the constructionof these trails; (b) these trails are not consistent with the wild forest nature of the Forest Preserve; and (c) the construction of these trails will result in the creation of a manmade setting in the Forest Preserve. (Combined Complaint and Petition, 7 82). Petitioner seeks a declaration that the respondents actions violate NY Constitution article XIV, 0 1, and an injunction to prevent further such violations. Indeed, NY Constitution article XIV, § 1, entitled: [Forest preserve to be forever kept wild; certain highways and ski trails authorized] contains the following provision: The lands of the state, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed. N Constitution article XIV, 8 5, entitled [Violations of article; how restrained] , Y authorizes a citizen suit to enjoin a violation: A violation of any of the provisions of this article may be restrained at the suit of the people or, with the consent of the supreme court in appellate division, on notice to the attorney-general at the suit of any citizen. (NY Const art X W , § 5) It has been held that a declaratory judgment action is the appropriate vehicle to seek review of a continuing policy or practice of a State Agency (Zuckerman v Board of Education, 44 W 2 d 336,343-344 [1978]; Allen v Blum, 58 NY2d 954 [1983]; Williams v Bhm, 93 AD2d 755 [l Dept., 19831). In this respect, the petitioner alleges that the respondents have implementeda broadly applied policy to cut down thousands of trees within 6 [* 7] the Forest Preserve and to construct snow mobile trails, in furtherance ofrespondents god to expand the Snowmobile Connector Trail system throughout the State, all in violation of NY Constitution article XTV, § 1. The petitioner s first cause of action, being addressed to respondents poky and practice, need not be converted into a CPLR Article 78 proceeding [see Zuckerman v Board of Education, s u p ;Allen v.Blum, supra; Williams v Blum, supra; see also, B a l s q Lake Anders Club v Department of E n d . Conservation, 199 ADZd 852 [1993I). As such, the motion must be denied. Petitioner s Cross-Motion For A Preliminary Injunction The petitioner seeks a preliSninary injunction %njdnhg [respondents] fkom cutting or othetwise destroyingtrees i the AdirondackForest Preseme for the construction of Class n 11 Community Connector snowmobile trails and other trails having similar characteristics, and from otherwise clearing, excavating or filling land for such trails, during the pendency ofthe First Cause of Action (petitioner s notice of crossmotion dated July 19,20 13). The petitioner alleges that the cutting of trees to construct the proposed Community Connector Snowmobiie trails requires the removal of trees within the Adirondack Forest Preserve in violation of NY Constitution article XIV, 0 1. In support of its argument, the petitioner indicates that DEC acknowledges having removed 2,085 trees of three inches or more i n diameter at breast height ( dbh ) for construction of the new Seventh Lake Mountain Connector Trail; 666 trees for the Wilmington Connector Trail (with 56 trees remaining to be cut); and 30 trees from the new portion of the Gilmantown Snowmobile Connector Trail (with 123 tree remaining to be cut). Taking into accclunt all snowmobile community 7 [* 8] connector trails which DEC plans to cons&ucti the futurethroughout the AdirondackForest n Preserve, the petitioner estimates that 8,223 trees have, or will be destroyed. A preliminary injunction may be granted under CPLR article 63 when the pasty seeking such relief demonstrates: (1) a likelihood of dtimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of the equities tipping i the moving party s favor (Nobu Next Door. LLC v Fine Arts Horn., Inc., n 4 NY3d 839,840 [20051; Confidential Brokexae Services, h .v Confidential Planning c Corporation, 85AD3d 1268, 1269 f3d Dept., 20111; Emerald Green Propertv owners Association, Inc. v Jada Developers, LLC, 63 AD3d 1396,1397 [3d Dept., 20093; SYNC Realty Group. Inc. v Rotterdam Ventures. Inc., 63 AD3d 1429,1430- 1431 [3d Dept., 20091; Green Harbour Homeowners Association Inc. v Ermiger, 67 AD3d I 116, I 117 [3rd Dept., ZOOS]). It is a drastic remedy, which should be used sparingly (Clark v Cuomo, 103 AD2d 244,246 [3rd Dept., 19841; Welcher v Sobol, 222 AD2d 1001,1002 [3d Dept., 19951). The party seekingthe preliminary injunction has the burden of proof of demonstrating his or her entitlement to such relief lsee SYNC Realty Group. Inc. v Rotterdam Ventures. Xnc., sums; Schulz v State, 217 AD2d 393 [3rd Dept., 19951; Aetna Ins.Co. v Capasso, 75 NY2d 860 [19901). In support of the cross-motion, the petitioner has submitted the affidavit of Peter Bauer, petitioner s Executive Director. Mr. Bauer indicates that hevisitedthe SeventhLake Mountah Snowmobile Connector Trail on October 18,2012, November 12,2012, January 8 [* 9] 21,2013 and June 28,2013.' He annexes sixteen photographs to his affidavit to show that the trail is being widened up to twenty feet (far beyond the eight foot limit which he maintains applies). The photographs also depict ruts i the trails causedby heavy machiney. n They show two bridges under construction. They show cut timber along the side of the trail, tree stumps (recently cut), side cutting andor bench cuts into sloped terrain, a natural rock ledge which has been partially removed, excavation work, wood planks placed upon a portion of the trail surface, and damage to the forest floor. He indicates that the bridges are designed and constructed to accommodate snowcats, vehicles weighing several tom, used to groom snow mobile trails. Respondents indicate tkat work on the Seventh Lake Connector Trail commenced in September 2012. They indicate that the construction work is practicalZy complete. This includes all treecutting, gradingand bench cutting. 1,924 live trees have been cut. The work remaining includes construction of six bridges, access ramps to five bridges already constructed, installation of railings on two forty foot bridges, and trail restoration work (improving drainage, removal of tree stumps & wood piles, seeding, removal of debris at bridge sites, and elimination of ruts). DEC maintains that trail surface is currently deemed adequate for snowmobiling by reason that i the winter the trail is frozen and covered With n snow. The respondents have submitted the affidavits of DEC employees Tate Comor, Robert J. Ddey and Eric Kasza i support of their various arguments. Tate Connor, whose n 'There is no evidence that Mr. Bauer visited and/or made observatiom with regard to the Wilmington Connector Trail or the Gihantown Connector Trail. 9 [* 10] title is Forester I, was assigned to oversee construction of the Seventh Lake Mountain Community Connector Trail C'Seventk Lake ConnectorTrail"), located in the Moose River Plains Wild Forest, between Raquette Lake and M t New York. Mi. Connor indicates that e, construction of the Seventh Lake Connector Trail was commenced in September 20 12. As of December 2012 all &e cutting, grading and bench cutting along the t r d had been completed. 1,924 live tsees were cut over st distance of.ll.9miles. He indicates that the trail is generally 9 feet wide. He indicates tbat although the trail is currently adequate for snowmobiling (and was open to snowmobiling during the winter of 20 12-2013), additional work is necessary to render it useable for hiking and m u t i biking. This work includes onan constructionof:(1) six bridges and a bridge/walkway over a wetland area; (2) access ramps on five bridges already constructed; and (3) milings over two 40-foot bridges. Mr. Connor indicates that the bridges are necessary to prevent public use f o disturbing the bed and rm banks of streams, and damaging a wetland area along the trial. He avers that issuance of a preliminary injunction would prevent completion of the trail. Robert J. Daley, whose title is Forester 1 , is land manager for the Wilmington Wild 1 Forest. He was assigned to oversee construction of the Wilnzington Community Connector SnowmobileTrail (c'Wihbgton Connector Trail"). Mr. Daley indicatesthat the Wilmington Comector Trail, which is 7.6 miles long, connects the community of Wilmhgton with the Northern Adirondack Trail System. DEC approved construction of the Trail i October n 2005. Construction commenced in 2008. The Trail was constructed with an 8 foot wide 2Benchcuttug is the process of constructing a trail across the side. slope of a hill. 10 [* 11] trail tread. 666 trees were removed fiom the Forest Preserve portion of the Trail. h additional 56 trees will need to be removed. Completion of the Trail requires installation of: (1) five bridges; (2) four short re-routesto improve t!ae trail; ( 3 ) construction of a 300 foot re-route;and (4) installation of a bog walkway to divert public use away &om a wetland area. The Trail is open to snowmobile use when there is suficient snow cover. Eric J. Kasza, having the title Forester 11, is land manager for the Jessup River Wild Forest. He was assigned to oversee construction of the Gihantown Community Connector Snowmobile Trail ( Gilmantown Connector Trail ). The trail will be 3.3 miles long, connecting the Town of Wells and the Village of Speculator. Mr. Kasza indicates that 2.4 miles of the 3.3 mile long trail will be located within the Forest Preserve. Approximately 2.1 miles of the Forest Preserve portion will incorporateexisting forestry haul roads with .3 miles being new consbxction. Thirty trees were removed along the new, .3 mile section ofthe Trail during the winter of 2012-2013. Approximate ninety- three trees remain to be removed. Four bridges will be constructed on the 2.1 mile portion of the Trail. Although no bridgework has begun, bridge materials were hauled to the bridge sites during the 2012-2013 winter. All of the DEC employees maintain that the trails are beginning to show signs of revegetation. They maintain that installation of the bridges is necessary to protect the beds and banks of stream and wetland areas from damage caused by public use. It is also indicated that upon completion of construction,work is performed by hand to restore the wild forest character ofthe Iand crossed by the trail. This work includes improving drainage along the trail, removaI of some of the tree stumps, removal of piles of wood along the hail, 11 [* 12] seeding of sections of some bench cuts, removal of debris at bridge sites, and eliminatingruts caused by machines, In general, the material facts with regard to constructionof the trails to date, removal of trees, and the amount of work which will be required to. complete the trails m derived from information supplied by the respondents, which is not factually controverted i any n R meaningful way. The leading case with respect to article XIV of the New York Constitution is Association for Protection of Adirondacks v MacDonaId (253 WY 234 [1930]), which involved an enactment of the state legislature (L 1929, c 417)to autho~ze construction of a bobsled run on State lands within the Forest Preserve. The purpose of the legislation was to provide a bobsled facility for the 1932 Winter Olympicsheld i Lake Placid. The bobsled n structure itself was to be approximately six and one half feet in width, one and onequarter miles h length, with a return road. The land on which it was to be constructed w s to be a between sixteen and twenty feet i width. It was estimated that approximately2,500 trees n would need to be removed within an aggregate area of four acres of land. The Court noted that NY Constitution article XIV,5 1 (then, NY Const art VII, 8 7) w s adopted in 1394 to a prevent the cutting, destruction and sale of timber to the injury and ruin of the Forest Preserve . As the Court stated, To accomplish the end in view, it was thought necessary to close all gaps and openings in the law, and to prohibit any cufAng or any removal of the trees and timber to a substantial extent. The Adirondack Parkwas to be preserved, not destroyed. Therefore,a11things necessary were permitted, such as measures to prevent forest fires,the repairs to roads and proper inspection, or the erection and maintenance of proper facilities for the use by the public which did not call for the removal of the timber to any material degree. (id.,at 233-239) 12 [* 13] The Court of Appeals heldthat by virtue of NY Constitution articleXIV,4 1, the trees could not be cut and removed to construct the bobsled run. Subsequently,the Third Department Appellate Division had occasion to rule upon the issue i Balsam Lake Anglers Club v Department of Envt!. Conservation (199 AD2d 852, n m.In Balsam Lake Anglers Club, DEC had issued a negative declaration (pursuant to Environmentd Consewation Law article 8) with regard to a project within the Catskill Forest Preserve that included construction of five parking lots, the relocation of two trails, the construction of a new hiking trail, and constructionof a cross-country ski trail loop, on lands within the CatskilI Forest Preserve. The construction plans called for the removal of approximately 350 trees to accommodate the trail relocation, together with removal of an unknown number of additional trees for the proposed new trail and parking lots. The petitioner commenced a combined actiodproceeding to challenge the approval, arguing ( n i part), that the tree removal violated N Constitution article XIV, 6 1 , The Appellate Division Y quoted the Court of Appeats in commenting: Although Constitution art XIV,0 11 would appear, as petitioner argues, to prohibit any cutting or removal of timber from the forest preserve, the Court of Appeals, noting that the words of the NY Constitution must receive a reasonable interpretation, has construed this provision as prohibiting [the] cutting or [the] removal of * * * trees and timber tu a substantia2 extent (Association for Protection of Adirondacks v MacDonald, 253 NY 234,238, [emphasis supplied]). Thus, the court has indicated that only those activities involving the removal of timber to any materia ¬degree will m afoul of the constitutional provision ( id,. at 23 8 . Although petitioner may ) question the soundness ofthis interpretation,particular iyi view n of what it has characterized as the unambiguous and absolute prohibition contained i N Constitution, article XV, 8 1, we n Y elect, absent authority to the contrary, to follow the 13 [* 14] interpretation advanced by the Court of Appeals i Association n for Protection of Adironclacks v MztcDonald (suma). (Balsam Lake An~lers v Deparbnent of EnvtL Conservation, supra, Club at 853) The Court reviewed the proposed construction and commented: [tlhese proposed uses appear compatible with the use of forest preserve land, and the amount of cuttingnecessary is not constitutionally prohibited (a., Association for Protection of Adirondacks v MacDonald, suma). (Balsam Lake Anglers Club v Department of Envtl. Conservation, supra, at 854). While the petitioner tends to view the work on the three trails as a single project, the respondents have analyzed each trail separately. In viewing the work as a whole, the Court must indicate that it has serious concerns about the constitutionality (and administrative policy) of cutting down, now and i the future, thousmds of trees throughout the Forest n Preserve without any attempt to secure an amendment to NY Constitutionarticle XIV, 4 I. As the Court of Appeals stated i Association for Protection of Adirondacks v MacDonald n (253 NY 234, &, [t], cut down 2,500 trees for a toboggan slide or perhaps for m other y purpose, is prohibited (a., 238). at Addressing first the cutting of trees, the respondent argues that the petitioner has waited too long i seekingto obtain a preliminary injunction. As noted, respondent indicates n that work on the Seventh Lake Connector Trail commenced in September 20 12, and that all tree cutting on that T d I has been completed. They indicate that work on the Wilmington Connector Trail commenced in 2008, that 666 trees have been cut, and that fifty-six trees still need to be cut. Lastly, they indicate that the GiImantown Connector Trail commenced i n 14 [* 15] December 2012,30 trees have been cut, with 93 additional. trees planned to be cut. The respondents maintain that the petitioner has been dilatory i seeking to enjoin construction n of the snowmobile trails, They point out that although petitioner knew about the construction activity on the Seventh Lake Connector Trail i the Fall of 2012, and was n authorizedto seek an injunction by order of the Appellate Division dated March 28,2013, it did not immediately do so; that it failed to do so when the hybrid action was commenced (April 15,2013); and that it ultimately did not make tfie instant cross-motion until July 12, 2013. Notably, all trees which were planned to be removed from the Seventh Lake Connector Trail have already been removed. As pointed out by the respondent, an injunction Will not issue to prohibit a f i accompli (E.F.S. Ventures Corp. v Foster, 71 at NY2d 359,372 [1988]). With regard to tree cutting on the Seventh Lake Connector Trail, there is nothing to enjoin. With regard to tree cutting on the WiImington and Gilmantown Connector Trails, whether considered separately or together, the Court finds that they fall within the parameters of the BaIsam Lake Anders Club case (Balsam Lake Anglers Club v Department of Envtl. Conservation, 199 AD2d 852, 854, supra). If these are viewed as separate and distinct projects, the petitioner has failed to demonstrate that the tree cutting along these trails destroys the Forest Preserve to a substantid extent or in any material degree (Association for Protection of Adirondacks v MacDonald, 253 NY 234, suprq at 238; Balsam Lake Anglers Club v Department of Envtl. Consewation, sum& at 853). Conversely, were the Court to consider the three Trails in the aggregate as a single project, as pointed out by the respondents, well over ninety percent of the trees planned to be removed have already been 15 [* 16] removed and constitute a a t accompli (E.F.S. Ventures C o g .v Foster, supra). The factthat fi some portion of the construction work still needs to be done does not change the result (gg Manv v Village of Sharon Springs Bd, of Trustees, 234 AD2d 643,644 [3d Dept., 19961). One further point should be made, the petitionlcomplaint, citing the Adirondack Park State Land Master PIm3, allegesthat the respondents, i the future, intend to create hundreds n of d i e s of snowmobile connector trails throughout the Forest Preserve. In the Court s view there is insufficient evidence in this record to demonstrate that the removd of trees i n connection with construction of other snowmobile connector trails (other than those specificdly mentioned here) is imminent. For this reason, the Court is of the view that there is no showing of a necessity to issue a preliminary injunction at this time with respect to proposed snowmobile trails which may never be constructed. In the event that there is a change i circumstances, petitioner may re-apply for such relief! n Overall, with regard to the alleged unconstitutional removal of trees, and limiting its finding to the motion at bar, the Court concludes that the petitioner f d e d to satisfy its burden of demonstrating either a probability of success on the merits andor that the equities balance %e petitioner also cites the Final Snowmobile Plan for the Adirondack ParklFinal Generic Envirommtal Impact Statement , apparently adopted by DEC and the New York State Office of Parks, Recreation and Historic Preservation . 4 The Court is aware of the cases cited by the petitioner, namely, Green Harbour Homeowners Assn., h . Ermiger (67AD3d 11 16 f3d Dept., 2009]), Gramercv Cu.v cv Benenson, 223 AD2d 497 [I Dept., 1994]), Walsh v St. M q s Church (248 AD2d 792, [3 Dept., 1998]), and Wiederspiel v. Bemholz (163 AD2d 774 [3d Dept., 1990]), which hold that the threatened removal of Iarge trees constitutes irreparable harm. Again, the Court is of the view that petitioner must demonstrate i some fashion that the respondents plans pose an n immediate and present threat of a violation of NY Constitution article XlV, 5 1 in order to obtain a preliminary injunction. 16 [* 17] in its favor. The Court need not and does not, on this motion, reach the issue of inreparable injury i regard to removal of trees. n Turningto the issue with regard to the clearing, excavating andlor filling of trails, the petitioner maintains that the constructionwork violates M y Constitwion articleX V , 0 1 by creating a man-made setting within the Forest Preserve. However, other than .the observations of Peter Bawr, who has not been shown to possess expert qualifications wit4 regard to forestry3 forest habitat or a related field, no other evidence is produced to demonstrate a permanent, significant and detSimental impact upon the Forest Preserve. Nor is there evidence i admissible form to describe and quantify the specific damage allegedly n being done to the Forest Preserve. In contrast to activity hvolving renmval of timber, NY Constitution article XIV, 8 1does not expressly prohibit the constructionof tsails within the Forest Preserve. The petitioner s evidence fails to establish how, or i what respect, the n gradingand excavation work 30asubstantial extenf or mterial degred impakthe forever wild character of the Forest Preserve (Association for Protection of Adirondaclrs v MacDonald, 253 NY 234, suma, at 238; Balsam Lake Anglers Club v Department of bvtl. Conservation, supra, at 853). Moreover, the respondents have presentd evidence to demonstrate that (1) the unpaved trails me generally nine to twelve feet in width; (2) the I work includes post-construction remediation (and seeding) af the forest floor along the connector trails; and (3) i areas where the forest floor has been disturbed, it re-vegetates n relatively quickly. Again, for purposes of the instant motion the Court finds, i connection n with clearing, excavation,grading and filling of trails, that the petitioner failed i its burden n to demonstrate irreparable harm to the Forest Preserve, aprobabilityof success on the merits, 17 [* 18] or that the, equities bdance in its favor. For all of the foregoing reasons, the Court finds that the motion for a preliminary injunction must be denied. Respondent s Motion To Dismiss Petitioner s Second and Third Causes of Action5 As noted, in the second and third causes of action of the ComplainVpetition, the petitioner seeks an order annulling temporary revocable permits (TRps) that DEC issues E o municipalities and adopt a natural resouke agreements (AANRs) between DEC and snowmobile clubs, authorizingthe use of tracked motor vehicles to groom snowmobile trails i the Forest Preserve lands. The petitioner alleges that the use of tracked groomers are n prohibited under the Adirondack Park State Land Master Plan and DEC s regulation, 6 N Y C R R 5 196.1 (a). The respondents move to dismiss on grounds that the petitioner faiIed to join the municipalities and snowmobile clubs as parties to the action, since they will be inequitably affected if the W s and AANRs are WuIled. The respondents indicate, however, that the purpose of the TRPs and AANRS are to authorize municipalities and snowmobile dubs to maintain the snow mobile trails on DEC s behalf. Respondents fail to demonstrate specifically how or i what manner the rights of n either the municipalities or the snowmobile clubs would be inequitably affected by a judgment i t h i s proceeding n (see CPLR 1001 [a]). They are not, in the Court s view, necessary parties. For this reason, the motion to dismiss will be denied. Respondent has witkdrawn is motion to dismiss as it relates to the Gilmantown t Connector Snowmobile Trail, which was predicated on grounds of ripeness. 18 [* 19] Accordingly, it is ORDERED, that respondents motion to be relieved of its default and to compel the petitioner to accept its motion to convert and dismiss is granted; and it is ORDERFB, that petitioner s cross-motion fbr a default judgment, or i the n alternative for a preliminary injunction is denied; and it i s ORDEmD, that respondent s motion to convert petitioner s first cause of action pursuant to CPLR 103 (c) fiom a action to a CPLR Article 78 proceeding is denied; and it n is ORDERED, thatrespondents motion to dismiss petitioner s second and third causes of action be and hereby are denied; and it is ORDERED, that the respondents be and hereby is directedto serve and file an answer to the complaint and the petition within twenty (20)days of the date herme and it is further ORDERED, that respondentrenotice the CPLR Article 78 proceeding i conformity n with CPLR 7804 (f); and it is further ORDERED, that the proceeding- after being re-noticed, shall be referred to the undersigned for disposition. This shall constitute the decision and order of the Court. The original de&ion/oder is refund to the attorney for the respondents. A11 papers (other than Paper No. 1below) are being delivered by the Court to the County Clerk for filing. The signing of this decisionlgrder and delivery of this decisiodorder does not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved fiom the applicable provisions of that rule respecting filing, entry and notice of entry. 1 9 [* 20] ENTER August 22 ,2013 Troy, New York Dated: rge I . Ceresia, Jr, 3 I Supreme Court Justice Papers Considered: 1 Summons, Notice of Petition, and Combined Complaint and Petition Verified . ApriI 2. 3. 4. 5. 6. 12,2013 Respondent s Notice of Motion dated June 2 1,20 13, to Convert and Dismiss, Supporting Papers and Exhibits Respondent s Notice of Motion Dated July 1,2013 To Compel Acceptance of Respondent s Motion To Convert and Dismiss, Supporting Papers and Exhibits Petitioner s Notice of Cross-Motion Dated July 12, 2013 For a Default Judgment or Preliminary Injunction, and Supporting Afidavit Affidavit of Peter Bauer, sworn to July 15,2013 and Exhibits RepIy AfEmationofLamence A. Rappoport Dated July 19,2013, Supporting Papers and Exhibits 20

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