Thursday, May 18, 2017

A Whiteface Mountain Zip Line Faces Article 14 Test

Whiteface Mountain Courtesy WilmingtonPeople Town Facebook PageOne project hyped in Governor Andrew Cuomo’s budget announcements early in 2017 was a zip line that would run in three stages from near the summit at Whiteface Mountain, near where the gondola brings passengers, to the base of the mountain. This was proposed as a way for Whiteface to rival zip lines at other ski areas in the northeast U.S. that were trying to expand summer tourism and resort operations.

One of Governor Cuomo’s press releases billed the Whiteface zip line as “one of the longest zip lines in North America.”

The budget approved last month includes $20 million in funding for capital projects for the Olympic Regional Development Authority (ORDA), which has no shortage of projects to expand and improve existing facilities as well as simply to maintain three ski areas, one cross country ski area, the ski jumps and Olympic Arena. For ORDA there are always roofs to replace, infrastructure to rebuild, and new code items to meet.

In promoting the zip line at Whiteface, Governor Cuomo never mentioned any constitutional hurdles to surmount. He never mentioned any issues with Article XIV, Section 1, the forever wild provision of the NYS Constitution. This is a key omission by the Governor because in my reading of the NYS Constitution a zip line is not authorized in the amendment for the construction of the Whiteface Mountain Ski Center.

Article XIV, Section 1, of the NYS Constitution is a covenant between the governed and their government for the management of the Forest Preserve. Major decisions for the Forest Preserve are not to be made by state government leaders or state agency bureaucrats, easily swayed by political influences and special interests, but are to be directly made by the people of the State of New York. Simply put the people of the state make the big decisions over the people’s lands. It appears to me that when the people of the State of New York approved the amendment for the Whiteface Mountain Ski Center in 1941, they did so to approve a downhill ski area and not a summertime amusement park.

Article XIV, Section 1 states “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.”

Article XIV, Section 1 was amended in 1941 to include “constructing and maintaining not more than twenty-five miles of ski trails thirty to two hundred feet wide, together with appurtenances thereto, provided that no more than five miles of such trails shall be in excess of one hundred twenty feet wide, on the north, east and northwest slopes of Whiteface Mountain in Essex county.”

“Appurtenances” has consistently been taken to mean only the infrastructure that supports downhill skiing. The phrase “together with appurtenances thereto” is used not only for Whiteface Mountain, but also for similar amendments for the Gore Mountain and Belleayre Mountain ski areas that were similarly approved. The infrastructure to support downhill skiing has been taken to include ski lifts (from T bars to chair lifts to gondolas), snowmaking systems of pumps, sprayers, and water pipes, base lodges, maintenance buildings, ski racing association buildings, and parking lots.

Merriam Webster’s Collegiate Dictionary, 10th ed., says an appurtenance is (a) “an incidental right (as a right-of-way) attached to a principal property right and passing in possession with it,” (b) “a subordinate part or adjunct,” and (c) “accessory objects.”

A zip line can hardly be considered a subordinate part or accessory object of a downhill ski area. Using it does not require skis, nor is it part of the sport of skiing. A zip line at Whiteface Mountain is not covered under the 1941 constitutional amendment. As with the proposed bobsleigh run that was found to be unconstitutional in Association for the Protection of the Adirondacks v. MacDonald, 253 N.Y.2d 234 (1930), a zip line would violate Article XIV, Section 1. The only way that a zip line could be constructed at Whiteface Mountain would be through a new amendment to Article XIV, Section 1.

Before it undertakes any expense for planning, engineering or design for a zip line on Whiteface Mountain, ORDA should request a formal opinion from the New York Attorney General about the constitutionality of a zip line. New York Attorney General Eric Schneiderman should step up the plate and issue an opinion on Governor Cuomo’s zip line on Whiteface Mountain.

ORDA’s top priorities for its new $20 million for capital projects in the budget are to rebuild base lodges at Gore and Whiteface as well as to improve the kids ski schools at each facility, undertake a complete rebuild of the Saddle Lodge at Gore Mountain, convert the old gondola building at the top of the Straight Brook Chair on the summit of Gore Mountain into a warming hut/restroom facility, as well as other key infrastructure needs at the Mount Van Hoevenberg Ski Area and Olympic Arena.

A zip line at Whiteface Mountain is hardly a burning priority. ORDA should not only seek a formal opinion from the New York Attorney General but also from the Department of Environmental Conservation (DEC) and Adirondack Park Agency (APA). These agencies should go on record with their assessments. If the Cuomo Administration resolves to move ahead with a zip line regardless of constitutional implications, ORDA will need to undertake public comments and environmental impacts under the State Environmental Quality Review Act and develop an amendment to the Whiteface Mountain Unit Management Plan, which will then need to be reviewed and approved by the APA.

Photo: Whiteface Mountain courtesy the Wilmington Facebook page.


Peter Bauer

Peter Bauer is the Executive Director of Protect the Adirondacks.

He has been working in various capacities on Adirondack Park environmental issues since the mid-1980s, including stints as the Executive Director of the Residents' Committee to Protect the Adirondacks and FUND for Lake George as well as on the staff of the Commission on the Adirondacks in the Twenty-First Century and Adirondack Life Magazine. He served as Chair of the Town of Lake George Zoning Board of Appeals and has served on numerous advisory boards for management of the Adirondack Park and Forest Preserve.

He lives in Blue Mountain Lake with his wife and two children and enjoys a wide variety of outdoor recreational activities throughout the Adirondacks.




29 Responses

  1. Jim S says:

    Coumo is treating the Adirondacks like Trump treats the EPA.

    • Paul says:

      Well the governor adding thousands of acres to the Forest Preserve with many new Wilderness parcels in the works doesn’t seem to me to meet your judgment here?

      • Jim S. says:

        He seems to ignore public sentiment and the laws that govern classifications. The zip line might not be bad.

  2. Larry Roth says:

    Anyone following the railroad issues should know by now that the Cuomo administration is seldom bothered by legal niceties when they come between the governor and something he’s embraced.

  3. Wren Hawk says:

    How appalling. Tourism is an important part of the economy of the park, no doubt, but it is not a silver bullet. Diversification is essential to vibrant, resilient communities. Why can’t we find a way to invest in green infrastructure and technology and take some pressure off the overuse of the parks natural resources for things like zip lines? Recreation here should be compatible with conservation of our forests, waters, mountains and wildlife.

  4. Jack Spula says:

    Never underestimate Cuomo’s capacity for bullying. To stop this silly, potentially harmful project (pipe dream?), one or more lawsuits may be necessary.

  5. pjjmunn@gmail.com says:

    Whiteface has a highway on it, it has a castle on it, it has a weather station on the summit, it has bike trails all over the ski hill, it has bike trails at the base of it… How is a Zip Line any different… Get a life folks.

    • Jack Spula says:

      You’ve made the opposition’s point nicely: Whiteface already has more than enough “improvements.” It’s time to preserve what’s left of its wildness, not add any clutter.

    • Heather Swinyer says:

      Bring on the zipline!!! I’m down! Woooooo hoooooo!

    • Jim S says:

      I am not necessarily against the zip line, just the disregard of the laws to protect.

    • Wren Hawk says:

      There could be impacts on species like Bicknell’s Thrush. While winter activities take place when the birds are at southern migration points, a zip line would be used in breeding and nesting season, possibly disrupting there and other wildlife reproductive success, access to habitat etc…

  6. Boreas says:

    Perhaps zip-lines could be used in the HPW to reduce erosion. You could string them peak-to-peak, or just from the summit down. Think of completing the 46 in a couple hours! Leave the black-flies, skeeters, and mud behind!!

    • Kathy says:

      Well can you imagine the lines and traffic for that!! But if there were no waiting I might try to be a 46 er….
      The money from that could provide tour buses to the Boreas ponds and pay for the 4 ☆☆☆☆ glamping sites with hot showers!

  7. Balian the Cat says:

    No fan of the Gov, I am not sure his individual personality/philosophy has anything to do with it. If he believed his base was for purist preservation, that’s what he’d install. If he thought making purple hair mandatory would garner votes, we’d all be on our way to the salon. If he was briefed that dolphins made nice sammitch’s then we’d see subsidy’s for seafood. The day of the public servant is long gone (presuming it ever existed) contemporary politicians are in it for ego (run amok), money, and ambition, pure and simple.

  8. UNHOLY says:

    You are the reason – i am not up’ing my subscription.
    Your extreme, tree hugging, holier than thou opinions make me sick.
    I read your articles like some one views a train wreck – you just can’t look away.
    It’s a ski area with existing man-made infrastructure — who cares if there’s a zip line running around existing developed land. The zip line isn’t causing anymore “un-natural disturbance” than already exists. It’s a no brainer to get more revenue in the area. The area should develop as much as they can in existing developed zones to maximize it’s use. Whiteface is already there – already an eye sore in your pristine Adirondacks – a zip line it not going to make it any “worse”. Get a grip.

    • Boreas says:

      UNHOLY,

      I don’t believe anyone is condemning the zip-line idea per se. But just like everything that has been done around Lake Placid WRT tourism infrastructure and Olympic infrastructure and Whiteface infrastructure – it all has to be legal. If every addition or change to the Whiteface area requires a variance or an amendment then so be it. That seems to be doable depending on the administration. The Adirondack Park is highly regulated. Nothing new here. Has nothing to do with tree-hugging – just existing regulations.

      • Jim S says:

        I am a tree hugger that would love to zip line down a ski hill as long as no additonal trees are harmed. I wouldn’t want to jeopardize the bicknell’s thrush either. All I want is for it to be studied, and if all is good, go for it. Dont bully it through.

  9. R. Carey says:

    Let’s see….
    It’s not a pristine wilderness, so that argument’s out.
    And I doubt the government appointed soothsayers foresaw ziplines, so while it takes some lawyerly dancing, I think it is possible to smooth the path.
    Is it worth the outlay? will it damage an already commercialized area? can it bring – J O B S – to an area that can use jobs?
    Sure, in the long run they aren’t hi-tech, hi-pay jobs, but what’s the return?
    And besides, it might be FUN!

  10. Bruce says:

    Gee, the legality of the rail ROW being used as a trail argument all over again. Let’s keep this out of the courts and just deal with the law and the facts as written, and not try to pass off our interpretations as law. I saw nothing in the law as Peter quoted it, prohibiting a zip line from being added, that’s his interpretation.

    • Boreas says:

      My understanding is the state ski areas and Olympic areas were made possible by amendments and variances to Article 14. These were very specifically-worded amendments about specific areas regarding specific infrastructure and specific uses. They weren’t approved for any use imaginable. Another example would be if Whiteface wanted to build an amphitheater and have loud concerts that could be heard a mile or more away. Or perhaps a dirt-track for motorcycles. Shouldn’t they come up for review? The amendments don’t necessarily give an area carte blanche authority to do anything it wants.

      I believe resistance to building a zip-line at Whiteface would ultimately be minimal if done with low profile/low impact placement. What we are talking about in this discussion is basically a simple review and approval of the proposal. The time to do the research is BEFORE building begins, not after.

  11. Dave says:

    If it adds to the summertime use of Whiteface Mountain & brings more people in to boost the local economy, so be it. As as long as the zip line is confined to the already developed ski resort, who cares if they add a new idea.

  12. […] Whiteface Mountain Zip Line Faces Article 14 Test […]

  13. Bruce says:

    I might add, the whole point of these efforts, going at least as far back as the rail/trail thing is because of one simple fact…the Adirondack Park is not doing well economically, and tourism may be the single biggest factor in the park’s overall health. The locals aren’t doing it on their own.

    I believe it’s time for environmental groups, the APA, the DEC, and the governor to get together and have roundtable type discussions which go beyond each entity doing little more than protecting it’s piece of turf, and blaming the others because what “WE” want is not happening.

  14. Charlie S says:

    Wren Hawk says: “Why can’t we find a way to invest in green infrastructure and technology and take some pressure off the overuse of the parks natural resources for things like zip lines?”

    Because we need entertainment to feel whole Wren. Without diversions from the real world our insecurities flourish. Pleasant hours to this society is having a family reunion around a big-screen tv whereas they used to be a walk out in the open air.

    • JohnL says:

      Charlie S: I don’t need ziplines, ski slopes, TV, or anything electronic for entertainment. All I need is to read your posts. Thanks for the memories Charlie.

  15. Geogymn says:

    Is there zip lines in Glacier Nat’l Park? I’m sure Montana could use a economical stimulus. How about a zip line from the top of El Capitan? Wouldn’t that be grand?

  16. anonymous says:

    Peter, I think you should also ask the question: should state money be used to directly compete with local small businesses? A zip line business was opened right here in lake placid just last summer. They are currently working on a couple expansion projects and should reopen sometime in the middle of this summer. Their biggest competitor should not be the state of ny.

    • Bruce says:

      Anonymous,

      Isn’t Whiteface competing with other businesses now, or is it a private concern?

      I might question two similar businesses as close together as Whiteface and LP, however.

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