Rockefeller Institute of Government President’s Note:
Every 20 years, New Yorkers have the chance to vote on whether to hold a constitutional convention (known as a ConCon). The next vote will be held this November. If the voters approve a convention, delegates will be elected in November 2018, and the convention will open in April 2019. As the vote fast approaches, the Rockefeller Institute will continue to provide New Yorkers with information in various forms: public education sessions, publications, and debates. Please follow on Twitter or sign up on our website for all the latest information.
Next in the series of ConCon blog posts, guest writer Jessica Ottney Mahar describes an alternative path to amending the constitution outside of a constitutional convention.
With all the talk of this year’s vote on a constitutional convention, there’s little attention being paid to another ballot measure that voters will be asked to approve. This is an amendment to Article XIV of the New York State constitution known as the “Forever Wild” Clause, which establishes the Forest Preserves in the Adirondack and Catskill mountains and now includes more than three million acres. State land within these delineated areas is constitutionally protected: they are required to be kept in perpetuity as wild forest land, and may not be leased or sold, nor is timber removal allowed.[1] Many believe that New York’s constitutional protections for the wilderness are some of the strongest in the world.[2]
While these uniquely protected areas of the state are clearly defined by bright blue lines on maps, there is something unique about New York’s giant Forest Preserve parks: they are home to thousands of New Yorkers living in 16 counties and more than 100 towns and villages. The Adirondack and Catskill Parks are each a patchwork of public and private lands, intermixing wildlands with homes, schools, businesses, hospitals, infrastructure, and all the other things that you find in Upstate New York communities. The Adirondack Park, for example, is roughly six million acres, but less than half of it, or about 2.6 million acres, is public land.[3]
This blend of private and public lands in a constitutionally protected area creates an unusual problem — in order for some development and improvements to take place that everywhere else would be a matter of course, within communities that host Forest Preserve lands those activities require an amendment to the state constitution. Accordingly, since the enactment of the “Forever Wild” amendment in 1895 (the amendment was a result of the 1894 constitutional convention), there have been various amendments adopted that create carve-outs from the constitutional restrictions for various purposes such as the construction of the Piseco airport, the expansion of the cemetery in the town of Keene, and siting new drinking water wells for the town of Raquette Lake. At the core of each of these amendments has been the question of how to balance the strong and important protections for wilderness provided by the “Forever Wild” Clause and the needs of communities located within the blue lines.
Generally speaking, the New York State constitution can be amended in two ways. One, which there is much discussion about this year, is a constitutional convention. Every 20 years there is a requirement that New Yorkers be asked on the ballot if they want to hold a convention. This is one of those years. A constitutional convention would open the entire document up for revision.
The other way to change the state constitution is through a legislative/public referendum process. That might sound like it is not a big deal — after all, scores of bills pass in Albany every year. What is different about a constitutional amendment is that it requires passage of legislation in the state Senate and Assembly by two consecutively elected legislatures.[4] First, the bill must be introduced by members of the legislature and receive an opinion from the state attorney general. The the bill authorizing the amendment to be placed on the ballot must pass in both houses, and then, rather than being sent to the governor’s desk for signature, it is referred to the next legislature. An election must take place (which occurs every two years for New York State legislators), and then the same bill must be introduced and passed again by both houses in the exact form it was passed the first time. Following that second legislative passage, the amendment is placed on the ballot and must be approved by a majority of voters.[5] In addition, there is usually separate “implementing” legislation that must be passed as well, which does require approval by the governor. This is separate legislation that outlines how the amendment will be operationalized, and must only pass one time.
There are challenges to meeting this high bar for success, which is by design. Amending the constitution is serious business, and is not supposed to be something that can be done easily, or in haste. This process, by virtue of the requirement that two legislatures (separated by an election) approve the proposal, necessarily takes multiple years. Additionally, it can require newly elected members of the legislature to enter discussions without having input on the content or the language of the amendment, which can lead to tension during negotiations about the second passage or the language of the implementing legislation. These challenges are in addition to the “normal” challenges one faces when working to pass legislation in Albany, which is no easy feat. It involves negotiations with stakeholders of various political stripes and ideologies such as local governments, community organizations, academia, state agencies, the governor’s office, and legislators; votes in various Assembly and Senate committees; and work to ensure the bill is scheduled for a vote from the entire house.
After years of work by my organization, as well as many other stakeholders, voters will have the opportunity to decide on not only whether to have a constitutional convention, but also whether to approve an amendment to Article XIV – the “Forever Wild” Clause. The amendment would create a Forest Preserve Health & Safety Land Bank.[6]
The concept of a land bank for the Forest Preserve is not new. There is a land bank for the State Department of Transportation (DOT) to use to construct and maintain state highways through a set amount of Forest Preserve acreage that the agency may draw from for specific purposes. The DOT land bank was established with 300 acres. To put this in context, the Forest Preserves in the Adirondacks and Catskills now encompass nearly three million acres.[7]
The amendment that received second legislative passage this year and will appear on the November ballot is aimed at enabling communities located within the Adirondack and Catskill Parks to address critical infrastructure needs and to site new, necessary facilities for public health and safety without having to make changes to the constitution each time. Due to the patchwork of public and private lands that exists in the two parks, there are instances where infrastructure abuts or even crosses the Forest Preserve, or where Forest Preserve lands are the only option for placing new infrastructure. An example is in Raquette Lake where several years ago the town needed a constitutional amendment to drill new drinking water wells. There are also instances where town or county roads, not covered by the previously mentioned DOT land bank, have dangerous curves or grades and, to fix them, Forest Preserve land may be impacted.
The Health and Safety Land Bank will be 250 acres, to be shared among all of the communities located in the Adirondack and Catskill Parks — 16 counties and more than 100 towns and villages. There are strict rules about the types of projects that can be undertaken using the new land bank, and there are limits on how much total acreage one county or town can utilize. The State Department of Environmental Conservation and the legislature will oversee the implementation of the amendment and, to use the land bank, the locality must show that the use of the Forest Preserve land is a last resort, and no other options exist. They must also pay fair market value for the land, which would be deposited into the state’s Forest Preserve Expansion Account to fund a future purchase of additional Forest Preserve land.
The idea for this legislation came out of a locally driven process called Common Ground in the Adirondacks, where local government leaders, conservation and community organizations, and state officials collaborate to think about issues related to the future of the Adirondack Park’s public and private lands. Despite its origins in a collaborative process, the negotiations around setting a new precedent with another land bank for the two Forest Preserves were complicated. This initiative involved a broad array of stakeholders, and legislators from not only the 16 counties that host the Forest Preserve, but many more who chair or serve on key committees through which the legislation needed to pass. Happily, the ultimate goal of creating a framework for ensuring greater sustainability of communities living within the blue lines, which in turn would make the permanent nature of “Forever Wild” more sustainable, was enough of a motivator for all sides to work through differences and come to an agreement that will benefit both people and nature in the Adirondack and Catskill Regions. Now, it’s up to the voters to determine if that agreement is acceptable when they head to the voting booth this fall.
Notes
[1] NYS Constitution Article XIV, Section 1.
[2] “The Adirondacks,” Adirondack Research Consortium, n.d., http://www.adkresearch.org/adirondacks.
[3] “The Adirondack Park,” Adirondack Park Agency, n.d., https://www.apa.ny.gov/About_Park/index.html.
[4] NYS Constitution Article XIX, Section 1.
[5]Ibid.
[6] S2414 (NYS Senate Sess. 2017-18), https://www.nysenate.gov/legislation/bills/2017/s2414/amendment/original; A8301 (NYS Assembly Sess. 2017-18), https://www.nysenate.gov/legislation/bills/2017/a8301; and S2608B (NYS Senate Sess. 2017-18), https://www.nysenate.gov/legislation/bills/2017/S2608/amendment/B.
[7] “New York’s Forest Preserve,” NYS Department of Environmental Conservation, n.d., http://www.dec.ny.gov/lands/4960.html.