TO: Batchellerville Bridge Action Committee Members
FROM: Peter Van Avery
DATE: April 27, 2012


At the April 10 board meeting of the Hudson River-Black River Regulating District, the Governance Committee considered a vaguely worded "Resolution to Authorize Modification of Front-Lot Access Permit Widths" that would give the District more flexibility in dealing with "inequities" in its operation of the access permit system at Great Sacandaga Lake.

The resolution's title alone ought to give you pause. Giving the District new powers to modify access permits is an emotional subject that should set the warning flags fluttering.

Specifically, this document, drafted by the District, would provide certain exceptions to "the continued prohibition regarding realignment or other modification of front-lot access permit areas." That prohibition was imposed by the board in January 2010 in a "Resolution to Acknowledge Certain Past Practices Pertaining to the Permit System Rules."

As an example of an "inequity," District Executive Director Michael Clark pointed out that not all affected property owners may agree that front-lot permits have been laid out fairly in areas where the reservoir has an extremely irregular shoreline, such as within a cove. (My take: But some of those property owners may be delighted with the status quo.)

Another example cited by Mr. Clark: the fact that some back-lot access permits have been laid out in the middle of a front-lot access permit, instead of along one of the sides. The front-lot permit holder might prefer to have the back-lotter moved. (My take: But the back-lotter, for a variety of reasons ... a better beach? ... might prefer to stay where he is.)

So this proposed resolution is controversial.

In a March memo to the Governance Committee, Mr. Clark put a very positive spin on the proposed changes. I will focus on two of them. He says they would allow the District's staff to:

The wording in this memo sounds pretty bland, doesn't it? The two sentences say that nothing is going to happen unless all parties involved agree to a proposed change. But the proposed resolution says something different.

The resolution states that the current ban on modifying front-lot permits, including the assigned width, shall not apply in instances involving:

The big change is the addition of that word "reasonably." Who decides what it means? Obviously, what's "reasonable" to Permit Holder A is quite likely to be considered "arbitrary and capricious" by Permit Holder B. It's also obvious that the District and the board plan to set themselves up as judge and jury in applying the "reasonably" screen on a case-by-case basis.

Let's be clear about what's at stake here. Suppose your neighbor goes to the District and requests that the boundary of your permit be changed. Suppose also that you oppose this change. Under the proposed resolution, the District could rule that you were not acting "reasonably" and could award the change to your neighbor.

Are you willing to put this expanded power in the hands of a state authority whose alleged misdeeds and incompetence periodically prompt investigations by the NYS Comptroller's Office? What about those persistent claims that the District has played favorites over the decades in laying out permit boundaries?

There may be inequities in the access permit system, but a substantial revision to a practice prohibiting modifications of access permit widths should not be implemented by a fuzzily worded board resolution. Such a proposed major change should be submitted to a formal rule-making process, conducted in the public spotlight, in which the District reaches out to all interested parties and seeks their views on whether a change is necessary and, if so, how to draft it.

Apparently, this proposed resolution will be taken up again by the Governance Committee at the May 8 board meeting. Worst case: The committee could approve the resolution in its present form and forward it to the full board with a recommendation for passage, which then happens.

I found the documentation for the proposed resolution quoted above on pages 51-54 of the 250-page packet of background material that the District posted on its web site prior to the April 10 board meeting. This is the same monthly informational packet, minus certain documents dealing with legal and personnel matters, provided to board members.

A recent ruling of the Department of State's Division of Administrative Rules now requires the District -- and other public bodies -- to post such informational packets in advance of their sessions. The ruling was designed to allow attendees at public meetings to follow the proceedings more closely.

As people who have attended past District board meetings -- or who have watched the webcast -- can attest, it has been extremely frustrating to look on as board members referred one another to specific passages (such as paragraph 3 on page 72) in the monthly informational packet that they had but the public didn't. From now on, the packet will be available on the District's web site for the 10-day period leading up to the next board meeting.

If you'd like to see the four pages in the packet related to the proposed resolution, let me know, and I'll email them to you.

The next meeting of the Regulating District's board will be held at 10:00 a.m. on Tuesday, May 8, 2012, at Johnstown Town Hall, 2753 State Highway 29, Johnstown, NY.

The lake is at 761 feet above sea level. In spite of the recent heavy rain, this still leaves it about 2 feet below target. The May 31 goal is 768, the maximum target level.