Exclusive use still at question

To the editor,

Statement by Peter Van Avery, Batchellerville Bridge Action Committee, at Hudson River-Black River Regulating District Board Meeting, Johnstown, NY

May 10, 2011

I am Pete Van Avery, representing the Batchellerville Bridge Action Committee.

At last month’s Board meeting, Thomas Campanile made an impassioned plea for your assistance in dealing with trespassers on his access permit area. Like your 4,800 other permit holders, he pays you an annual fee that supposedly guarantees him “exclusive use” of his specific segment of the state-owned buffer zone around Great Sacandaga Lake.

I thought it might be useful if I traced the history of the “exclusive use” practice.

Almost as soon as the reservoir was flooded in 1930, the Regulating District was besieged by requests for permits for access to this attractive new body of water. The Board approved the first non-commercial access permits in December 1931.

Over the next few years, the Board created a formal process by which individuals could, for a fee, obtain an annual access permit. In addition, the District began to post a sign on each permit area displaying the name of the permit holder and stating specifically that he or she had “exclusive use.”

This practice functioned smoothly for decades. With the “exclusive use” principle in effect, people began to build increasingly luxurious homes along the buffer zone. The prices of these homes went in one direction — up. And so did property taxes. The lake became an economic bonanza for surrounding communities.

All went well until 2007, when the District was involved in a long and ultimately abortive attempt to update its rules for access permit holders. Environmental Conservation Law specifies that the District’s rules are subject to the approval of the state Department of Environmental Conservation. In preliminary discussions with that agency, the District was informed that since the buffer zone was state land, it should be open to the public.

Acting on this information and without seeking approval from the Board, Executive Director Glenn LaFave overturned 70 years of practice by declaring that the “exclusive use” phrase would be omitted from signs and paperwork beginning in 2008. Whether this unilateral decision by Mr. LaFave was appropriate or legal is debatable.

In May 2010, during the public comment period at that month’s Board meeting, an attorney for the Sacandaga Protection Committee made a compelling argument of why “exclusive use” should be restored to the District’s signs and documents. After discussion, the Board voted 5 -1 to restore the phrase. That was cause for celebration — but the joy was to be short-lived.

Just two months later, a back-lot property owner with a 10-foot-wide permit area contested the Board’s decision. He met with DEC Conservation Officer Lt. John Ellithorpe (now retired) to find out how DEC viewed the access issue. Subsequently, Lt. Ellithorpe sent him an email stating in part: “Pedestrian use of any access permit area is not restricted so long as the pedestrian traffic was legally gained.” The property owner displayed that sentence in large letters on a sign posted outdoors where it could be viewed by the public.

Lt. Ellithorpe’s email also stated: “Pedestrian traffic cannot trespass across private lands to gain access to the state-owned land.” Unfortunately, the buffer zone is riddled with rights of way. In addition, many miles of it run up against public highways. You can step right off the highway onto it. Nor is it a challenge to sneak across private property. Once you set foot on the buffer zone, how can someone prove that you reached it illegally?

On the basis of Lt. Ellithorpe’s ruling, Fulton County’s District Attorney advised the County Sheriff not to respond to complaints like Mr. Campanile’s about trespassers on the buffer zone. This has left Mr. Campanile in a hard place between two warring state organizations — the District and the DEC — both of which report directly to the Governor.

This is unfair. If “exclusive use” is a meaningless phrase, property owners who have paid a premium for lake property will suffer a tremendous financial loss. Property values could plummet by as much as 40 percent. As those values drop, so will tax revenues — which will have to be made up by property owners not on the lake.

I hope this history of the District’s “exclusive use” practice helps you to understand why the lake’s 4,800 access permit holders are following Mr. Campanile’s case so closely. If “exclusive use” no longer works for him, it no longer works for the rest of us.

Thank you.

Peter Van Avery

Batchellerville Bridge Action Committee