Boondocks No. 49

Thursday, December 27, 2007

Horricon's ATV Trails Struck Down in 3rd Dep't. Not too surprisingly the 3rd Department Appellate Division ruled against Horicon's attempt to establish an ATV trail system. The Appellate Division basically restated the problems with the law that the Supreme Court previous stated.

The decision rested on two clear issues with the local law being incompatible with state law, stating that:

• The town failed to fully search out the environmental impact of the trail system.
• That Horicon could not ignore Highway Law Sec 180 (prohibiting ATVs on public highways)
• Most importantly the Town of Horicon didn't have a claim to the roads they where trying to legislate as they belonged to the DEC.

Interesting parts of the decision:

Shortly thereafter, petitioners commenced this combinedproceeding pursuant to CPLR article 78 and action for declaratoryjudgment seeking, among other things, a declaration that LocalLaw No. 2 was unconstitutional and violative of various statestatutes and a judgment annulling respondents' adoption thereofbased upon their failure to comply with, among other provisions,the State Environmental Quality Review Act (ECL art 8)(hereinafter SEQRA). Discovery ensued and petitioners thereaftermoved for summary judgment. Respondents opposed the motion,invoking Highway Law § 189 and contending that the public hadused and respondent Town of Horicon had maintained the subjectroutes for decades. In the interim, petitioners sought andSupreme Court issued a preliminary injunction suspending LocalLaw No. 2 based upon the adverse environmental impacts ATV usagewas having upon the routes and surrounding forest.

Ultimately, Supreme Court granted petitioners' motion forsummary judgment, finding that petitioners demonstrated that thestate owned the land underlying the routes in question and thatrespondents, in turn, failed to tender sufficient proof to raisea question of fact as to whether the subject routes were"highways by use" within the meaning of Highway Law § 189. Uponfinding that route Nos. 1 through 6 and that the portion of routeNo. 7 that was subject to a prior Department of Transportationclosure order in 1972 constituted forest preserve lands withinthe exclusive jurisdiction of the Department of EnvironmentalConservation (hereinafter DEC), Supreme Court annulled Local LawNo. 2 in its entirety.1 This appeal by respondents ensued.

We affirm, albeit for somewhat different reasons than thoseexpressed by Supreme Court.2 While we have no quarrel with Supreme Court's resolution of which entity has jurisdiction overthe routes traversing the state lands, we are of the view thatLocal Law No. 2 should be annulled in its entirety due torespondents documented failure to comply with the provisions ofSEQRA and/or Vehicle and Traffic Law § 2405 (1).3

The adoption of a local law that "may" affect theenvironment constitutes an "action" within the meaning of therelevant statute and accompanying regulations (see ECL 8-0105[4]; 6 NYCRR 617.2 [b]) and, as such, it was incumbent uponrespondent Town Board of the Town of Horicon to exercise duediligence in ascertaining "whether the action may involve one ormore other agencies" and to make a "preliminary classification"thereof (6 NYCRR 617.6 [a] [1] [iii], [iv]). Once thatdetermination was made, a "lead agency" had to be designated tocoordinate the ensuing review process (see 6 NYCRR 617.6 [b])...

...Moreover, even assuming that no procedural infirmitiesexisted here, we nonetheless would agree with petitioners thatrespondents failed to take the requisite "hard look" at thevarious environmental impacts and/or provide a "reasonedelaboration" for the negative declaration issued (see e.g. Matterof New York City Coalition to End Lead Poisoning v Vallone, 100NY2d 337, 347-348 [2003]). The review process undertaken byrespondents, which charitably could be described as perfunctory,was devoid of any studies or analyses. While we acknowledge thatin the absence of such studies, the impact of opening the routesto routine ATV use upon soil erosion, drainage patterns, airquality and noise levels – to name but a few potential impactscannot definitively be ascertained, it simply strains credulityto suggest, as respondents summarily concluded, that openingforest lands to ATV usage would have no impact whatsoever uponany of these areas. Simply put, the review process undertakenrespondents falls far short of both the letter and the spirit ofSEQRA.

We reach a similar conclusion with regard to Vehicle andTraffic Law § 2405 (1), which permits agencies to open highwaysin their jurisdiction to ATVs "when in the determination of thegovernmental agency concerned, it is otherwise impossible forATVs to gain access to areas or trails adjacent to the highway."Although Local Law No. 2 indeed contains a recital to thiseffect, there is absolutely nothing in the record to substantiatethe Town Board's findings in this regard. Accordingly, weconclude that respondents failed to discharge their obligationsunder Vehicle and Traffic Law § 2405 (1) and, as such, Local LawNo. 2 was enacted in violation thereof. Respondents' remainingcontentions, to the extent not specifically addressed, have beenexamined and found to be lacking in merit.

The second to last part is particularly interesting—the Court simply overturned the SERQA review done by the town. That seems a bit unfair, because the standards they are holding Horicon is higher then your run of the mill housing or road construction project—figuring the trail system is on existing roads.

• Read Decision in State of New York v. Town of Horicon

Horicon as you may know includes the hamlet of Brandt Lake, many camps, and is just east of Exit 24 of the Adirondack Northway. P'Link

Don't Get Caught with Those Chux Sticks. It looks like since 1947, they've banned a device in New York State that is essentially two wooden sticks tied together by a strip of leather that can be used strangle or beat someone:

So there was a big stand-off and ordeal about siezing these sticks. There is a webpage of a lawyer who is trying to overturn the law.

Apparently this all started when some residents where complaining about one of the neighboorhood kids carrying a scary looking semi-auto riffle that resembles an AK-47. They felt it was offensive to their egos.

This is essentially what the gun looks like:

And here's what happened:

The Solvay incident began about 9:30 a.m. Nov. 30 at 104 Stanton Ave., where Pyke lives. Pyke was considering buying an assault rifle and Terpening brought over his assault rifle to show him, Pyke said.

"I never saw one before up close," Pyke said. "It looked pretty mean."

It looked mean but it turns out it was a pretty crappy riffle to start out with except if you want something that sucks for target pratice. But it looks cool—and scary.

Caza said he used it for target practice and bought it because he was looking for a reliable gun.

"It's reliable, but it's not very accurate," Caza said.

Because of that, it's perfectly legal to have one, even if it's offensive to some people who have nothing better to do but get offended and then go into bedroom and start making some hand-motions to summon the politicians.

The AK-47 had its birth during World War II, when Mikhail Kalashnikov designed a machine gun for Soviet troops to use against the Nazis. It is cheap, simple and reliable in all conditions and is meant to be fired from the hip in a sweeping motion.

The knockoff found in Solvay is a Romanian-made, semiautomatic rifle model number RI1163-N, distributed by Century International Arms, of Florida. It came with two banana-style clips, each capable of holding 30 rounds of ammunition.

On Nov. 18, 2006, the gun was bought for about $400 by Dustin Caza, 22, of Cicero, from Cataldo Electric of Lyons Falls in Wayne County.

Robert Cataldo, a gun dealer and owner of Cataldo Electric, said he sold the gun to Caza and that he doesn't sell too many. He declined to answer any more questions.

So we now have some editorials calling for a ban on semi-automatic riffles that could offend people, and not the sensible opposite—calling for a repeal of a ban on chux stikcs—of all things.

But then what would the people for Hand Gun Violence be able to do all day? Claim that every semi-automatic gun is a AK-47 or try to confuse the facts like they do in that news article?

The Brady Center to Prevent Gun Violence bristles at the idea the assault rifle is a sport gun. "The AK was designed to kill people and is very good at killing people," said Doug Pennington, assistant communications director for the Brady Center. "The whole point of an AK is to kill people, not animals."

Now if I make a cool looking handle to my BB-gun does that make it an AK-47? Probably in the minds of the People for Hand Gun Violence. But they're delusional. P'Link

Saturday, December 29, 2007

More then A Memory. I don't own a TV or have cable so I can watch CMT. But for the record here's Garth Brooks's new music video on CMT:

This is what I'm missing. P'Link