Petitioners commenced this CPLR Article 78 proceeding to challenge respondents' approval of amendments to the Unit Management Plan developed for the Gore Mountain Ski Center. The actions proposed as part of the challenged Plan include the construction of a number of new ski trails, including eight new trails connecting the Historic North Creek Ski Bowl to Gore and the addition of a new four season gondola to run between Gore and the Ski Bowl. The proposed new trails and gondola will be constructed on state land that adjoins privately-owned land that is proposed to be developed as the "Ski Bowl Village" (hereinafter, "FrontStreet" or, "FrontStreet project"). Respondents oppose the petition, arguing that the challenged amendments were rational and issued after a comprehensive and appropriate review.

The respondents Adirondack Park Agency (hereinafter, APA) and Department of Environmental Conservation (hereinafter, DEC), are statutorily responsible for the development of the Adirondack Park State Land Master Plan (hereinafter APSLMP [see www.apa.state.ny.us/documents/laws_regs/slmpPDF2001.pdf; Weber Affidavit Exhibit A; Caffry Reply Affidavit Exhibit H]), as well as for the development of individual management plans for each unit of land classified within the APSLMP (see Executive Law §816 [1]^[FN1]) . Each individual unit management plan (hereinafter UMP) must comply with the "general guidelines and criteria set forth in the [APSLMP]" (Id.).

The Gore Mountain Ski Center (hereinafter, Gore) is State-owned land located within the Adirondack Park Forest Preserve (see ECL 9-0101(1); Slutsky v. Cuomo, 114 AD2d 116).

The instant proceeding involves the 2005 Amendments to Gore's 2002 UMP. In March 2006, the respondent Adirondack Park Agency (hereinafter, APA) issued a resolution wherein it determined that the 2005 UMP Amendments (dated February 2006) "conforms with the requirements of the guidelines and criteria of the [APSLMP]" (see Return 20). Following the APA's resolution, the respondent Olympic Region Development Authority (hereinafter ORDA), as lead agency under the State Environmental Quality Review Act (SEQRA, 6 NYCRR Part 617), issued its approval of the 2005 UMP Amendment and accompanying environmental impact statement (see Return 19). DEC issued its approval on June 6, 2006 (Return 21).

By notice of petition and petition filed May 3, 2006, petitioners commenced a special proceeding seeking to annul the approvals of the 2005 UMP Amendments (Residents' Committee Protect the Adirondacks et. al. v. APA et. al, Supreme Court, Albany County Index No. 2946-06 [hereinafter, RCPA I]). The primary issue presented in RCPA I was whether the State respondents violated SEQRA because their review of the 2005 UMP Amendments failed to [*2]account for the cumulative impact of the Gore improvements and the Frontstreet "Ski Bowl Village" development planned for the adjacent property ^[FN2].

Following the filing of the petition in RCPA I, FrontStreet submitted its permit application to the APA. Consequently, on July 12, 2006, "Due to the fact that proposed Ski Bowl Village Project would be adjacent and/or near to the Gore Mountain Intensive Use Area and is related to the proposed ski trails and lifts on presently privately-owned land and town-owned land ...connecting Gore Mountain with the historic Ski Bowl", the respondent DEC rescinded its prior approval of the 2005 UMP Amendments and directed a supplemental SEQRA review (Return 22). Because the SEQRA process was not complete, by Decision and Order dated October 16, 2006, this Court (Lynch, J.) dismissed the petition in RCPA I as unripe. This Court noted, however, that, "petitioners would not be precluded from challenging DEC's final determination on the proposed amendment and are not bound by APA's March 9, 2006 approval..." (Residents' Committee Protect the Adirondacks et. al. v. APA et. al, Supreme Court, Albany County Index No. 2946-06 [October 16, 2006, Lynch, J.]).

On July 31, 2006, DEC re-established itself as Lead Agency on the supplemental review of the impacts of the 2005 UMP (see Return 25) and prepared a draft SEIS which was circulated for review and comment by the involved agencies and the public (Petition ¶ 93). After completion of the supplemental SEQR process, the respondent APA issued a resolution on October 10, 2008, finding that the 2005 UMP "conforms with the guidelines and criteria of the [APSLMP]" ( Return 50). On October 27, 2008 DEC issued its approval of the 2005 UMP (Return 51). ORDA issued its re-approval of the 2005 UMP amendments on January 20, 2009 (see Caffry Reply Affirmation ¶ 4, Exhibit A).

Petitioners now challenge the state respondents' October 2008 and January 2009 determinations to approve the 2005 UMP amendments. Specifically, petitioners contend that the approvals were "arbitrary, capricious, and an abuse of discretion, and affected by error of law" (Petition ¶¶ 108 and 109) because the UMP violates Executive Law §816 and the APSLMP (Petition ¶¶ 99-109). Further, petitioners contend that the 2005 UMP amendment violates the APSLMP, Executive Law §816 and the New York State Constitution Article XIV because the "level of development" approved therein exceeds and contravenes the guidelines set forth in the APSLMP and improperly promotes commercial and private business development (see Second COA - Petition ¶¶ 110-117)^[FN3].

The APSLMP directs that UMPs

must apply the general guidelines and criteria in the master plan and cannot amend the master plan itself. Unit management plans shall be regarded as a mechanism to refine and apply the general guidelines and criteria in the master plan to specific conditions on the ground, at a level of detail appropriate to administration and management"

(APSLMP p. 12). Further, as relevant to the instant dispute, respondents do not dispute that generally, in order to ensure that UMPs comply with the APSLMP, each must include:

...

- an assessment of the physical, biological and social carrying capacity of the area with particular attention to portions of the area threatened by overuse in light of its resource limitations and its classification under the master plan";

This Court should defer to an agency's interpretation of its own regulations as long as it is not irrational or unreasonable (Matter of IG Second Generation Partners L.P. v. New York Division of Housing and Community Renewal, 10 NY3d 474, 478; Campion v. New York State Adirondack Park Agency, 188 AD2d 877, 878). An agency's interpretation of a statute or regulation should be, "consistent with the spirit, purpose and objects of said [regulation]" (Brown v. Glennon, 203 AD2d 846, 849). In its first cause of action, petitioner alleges that the respondents' determinations to approve the 2005 UMP are not entitled to deference because respondents failed to (1) assess the "physical, biological and social carrying capacity of the area" and (2) state the "management objectives for the protection and rehabilitation of the area's resources and ecosystems and for the public use of the area, consistent with its carrying capacity" (Petition ¶¶ 99-103). Respondents acknowledge that they, "did not use the term carrying capacity' in their determinations" (Sur-Reply Letter Brief) but contend that it was "amply" addressed in both the 2005 UMP Amendment/SEIS and the September 2008 SEIS. Upon review of the record and the challenged documents, this Court agrees.

Indisputably, neither the APA Act (see Executive Law §802) nor the APSLMP (p. 16) includes an express definition of the term, "carrying capacity".Petitioners contend, with reference to its dictionary definition, that it is a "well-recognized concept" (Caffry Affirmation ¶¶19, 25)^[FN4]. Petitioners do not explain how the "specific" definition of the term applies in the [*3]context of an UMP Amendment drafted in accordance with the APSLMP.

In the Court's view, the general definition of the term, "carrying capacity" is best defined contextually. For example, the APSLMP provides that the State lands must be classified, "according to their characteristics and capacity to withstand use'" (APSLMP p. 14)^[FN5], based on physical, biological, and social considerations (Id.). With regard to the first factor, the APSLMP provides that the, "fundamental determinant", of classification is the

"physical characteristics of the land or water which have a direct bearing upon the capacity of the land to accept human use...For example, the fertility, erosiveness and depth of soil, the severity of slopes, the elevational characteristics reflected in microclimates, the temperature, chemistry, volume and turnover rate of streams or lakes, all affect the carrying capacity of the land or water both from the standpoint of the construction of facilities and the amount of human use the land and water itself can absorb"

The APSLMP also explains how biological factors are applicable to the classification of State land. For example, biological considerations include not only those associated with the physical characteristics of the area (e.g. the presence of sub-alpine, alpine or boreal plants that are "less able to withstand trampling than species associated with lower elevation life zones" and/or the presence of wetland ecosystems that are "finely balanced and incapable of absorbing material changes resulting from construction or intensive human use"), but also the presence of wildlife or wildlife habitats that "may determine whether a particular kind of human use should be encouraged or prohibited" (e.g. the effect of snowmobiles on deer wintering yards, hikers near nesting habitats, or motorized boats on bodies of water inhabited by wild trout) (Id., p. 14).

Finally, as to the "social" factor, the APSLMP explains that it involves,

intangible considerations that have an inevitable impact on the character of the land. Some of these are social or psychological — such as the sense of remoteness and degree of wildness available to users of a particular area, which may result from the size of an area, the type and density of its forest cover, the ruggedness of the terrain or merely the views over other areas of the Park obtainable from some vantage area

Accordingly, even if an area has physical or biological elements that would ordinarily warrant limitations, if it lacks these "intangible" characteristics, then a "wilderness" classification (with its attendant limitations) would not be appropriate (Id.).

Based on the foregoing, the Court finds that in the context of a Unit Management Plan developed in accordance with the APSLMP, the term, "carrying capacity" means, basically, the extent to which an area can withstand use and access without endangering its identified physical, biological, or social characteristics.In response to the petition, the state respondents submit an affidavit by Richard Weber, the Assistant Director of Planning at the APA. He avers that, "staff [*4]believe the 2005 and 2008 UMP Amendments provided an adequate inventory of the unit's physical and biological resources as well as an inventory and assessment of potential impacts related to the existing and projected uses of the area" (Weber Affidavit ¶ 20).

The record submitted by respondents includes the challenged 2005 UMP (Return No. 8). The UMP includes, with occasional reference to the 2002 UMP (not at issue in this proceeding), an , "Inventory of Existing Resources, Facilities, Systems, and Use" that documents the area's (1) physical resources (geology, soils, topography and slope, water, wetlands, and climate and air quality); (2) biological resources (vegetation, wildlife, fisheries, and unique areas); and, (3) visual resources (identifying, with photographs the locations from which the new trails/lifts are, "potentially visible") (see Return 8, Section 2, pages 2-1 - 2-3)The Inventory also includes an assessment of human resources available to those that reside in and visit the area (transportation, community services, local land use plans) (Id., p. 2-4) as well as the existing and proposed, "man-made facilities" (ski slopes, mountain biking trails, lifts, parking, access and maintenance roads, snowmaking and grooming equipment, water supply and sewage treatment facilities). (Section 2 pages 2-5 - 2-8). The 2005 UMP, with reference to the 1995 UMP and 2002 UMP for the Area, also sets forth a detailed description of the project (Proposed Management Actions) and expected public use of the area (Section 4). Thereafter, it describes the "Potential Impacts and Mitigation Measures" proposed as part of the 2005 UMP Amendment (Section 5).

Among the "potential impacts" identified within the 2005 UMP is a "vegetation impact" inasmuch as tree clearing will occur over 88 acres. The document includes, "tree cutting data" (e.g. the number, type, and size of trees to be cut) and confirms that all tree clearing will be done in accord with DEC policy. Further, though it states there is a "noticeable lack of invasive plants", the UMP recommends that the introduction of such species to the area be prevented through adoption of specific management practices such as the use of appropriate methods of erosion control (e.g. straw and erosion control blankets instead of hay), equipment maintenance, and continued monitoring and training (See pages 5-1 - 5-5).

The UMP also addresses the impact of the Gore Mountain project upon water and wetland resources, soils, visual resources, fish and wildlife, and air resources and management practices intended to address any impacts. For example, though either minimal or no impact to wetlands, groundwater flow or quality, stormwater runoff, or water quality of the streams on the mountain is noted, the UMP requires that certain measures be taken, including the installation of bridges and culverts, and the implementation of sediment and erosion control practices and Stormwater Pollution Prevention Plans during construction.With respect to soils, potential impacts are identified and the UMP requires adoption of erosion control methods and replanting "as soon as practicable". Further, noting that the area has historically been used for alpine skiing and winter sports, the UMP advises that there will be no impact to visual resources, thus, no mitigation measures are required.

Although no impact to fish and wildlife either on or off mountain is identified, the 2005 UMP does address the potential impact to the Bicknell's thrush, a "species of special concern" in New York State. Specifically, it advises that there is a potential impact because the bird breeds in high elevation conifer forests and one new trail, the "Hedges" trail, will be located in a potentially appropriate habitat (i.e. it is above 2800 feet).It notes, however, that although the [*5]trail is above the elevation threshold, studies showed that the bird is not present in the area and, "the forest type is such that the habitat quality to the Bicknell's thrush is probably marginal" and that the trail is thus, "not expected to have an adverse impact" on the habitat. Notwithstanding these findings, the UMP states that, "where possible, the edges of the trail, "will be feathered to enhance potential Bicknell's thrush habitat" (see Section 5, p. 5-10). Additionally, the UMP adopts measures to address potential impacts to the species off-mountain, such as avoiding tree cutting during the breeding season, feathering trail edges, and developing informational displays and additional public awareness activities.

Finally, sections six, seven, and eight of the UMP describe the alternatives to the proposed changes, summarize the "unavoidable adverse environmental impacts", and identify the "irreversible and irretrievable commitments of resources" that will result, respectively. The unavoidable impacts are characterized as, "relatively minor and local in nature" that will be subject to mitigation measures as necessary (Section 7, p. 7-1).Noting that if the intensive use of the area were abandoned it would return to a natural state, "representative of those in the Adirondack Park", the UMP further states that the proposed improvements will not have any irreversible or significant impact to air, water and socioeconomic resources and no significant impact on any wildlife habitats (Section 8, p. 8-1).

Although petitioner does not specifically challenge the 2008 SEIS (see Petition ¶98), review of the latter document is warranted, inasmuch as petitioner does allege that the respondents' initial adoption of the 2005 UMP the subsequent adoption of the UMP in 2008 after completion of the SEIS both violated the APSLMP (see Petition ¶¶107 - 108). Indisputably, the determinations to approve the 2005 UMP as conforming to the APSLMP relied on findings set forth in both the 2005 UMP/FSEIS and the 2008 SEIS (see Return 50, 51).

Like the 2005 UMP Amendment, the 2008 SEIS (Return 41) details the "environmental setting" with respect to the area's physical, biological, and visual natural resources (Section 4 pp. 19-30). For example, with reference to prior UMPs and reports submitted with the 2006 FrontStreet permit application, it assesses existing geologic and groundwater conditions, soil types, topography, surface water, wetlands, and climate and air quality (Id., 19-25). It also details the species of vegetation present, the presence of fish and wildlife, unique sites in the area and the absence of any critical habitat in the immediate area ^[FN6] (pp. 26-29) . It also describes the general terrain and development within the area, the classification and use of bordering areas, confirms that there are no "Scenic Areas of Statewide Significance" located within the area, and notes that the ski area is not visible from the one, identified, "scenic vista area" nearby (p. 30). Also like the 2005 UMP Amendment, the 2008 SEIS details existing "human resources" such as local land use plans for development, traffic conditions, and community services such as fire, police, and ambulance services (pages 33-34).Further, the latter document, with reference to prior UMPs and the FrontStreet permit application, inventories the man-made facilities in the area, details the impact prior expansion has had on the number of skiers visiting the area, and details the availability and source of utility systems serving the area, including electric service, [*6]potable water supply, snowmaking water supply, wastewater disposal, solid waste management, and telephone service (see pages 60-66).

Unlike the 2005 UMP, and with reference to the 1995 UMP for the area and architectural and archaeological surveys submitted with the FrontStreet permit application, the 2008 SEIS, after an assessment of existing conditions, concludes that the site has, "no significant cultural resources" (p. 39). It also details the "Open Space/Recreation" resources in the area, noting that it is a "four season destination area" with opportunities for skiing, snowmobiling, white water rafting, hiking, mountain biking, swimming, fishing, and hunting. It also adds an assessment of the existing socio-economic conditions in the area (e.g. population, school enrollment, housing, and income and employment data) (pp. 41-47).

Following the above inventory of conditions, the 2008 SEIS evaluates the, "Potential Significant Cumulative Environmental Impacts". It states, for example, with reference to the 2005 UMPs for the adjacent Siamese Ponds Wilderness and Vanderwhacker Mountain Wild Forest areas, that the carrying capacity of these adjacent areas will not be exceeded by the proposed projects. Further, with reference to the mitigation efforts set forth in both the 2005 UMP and 2006 FrontStreet permit application, it concludes that "there are no anticipated significant cumulative impacts on plants or animals as a result of the combined implementation of the two projects" (p. 69). Also with reference to the erosion prevention, sediment control measures and "detailed information" with regard to the stormwater pollution prevention plans set forth in the 2005 UMP and the Frontsteet permit application, the SEIS concludes that the projects will avoid any adverse impacts to water quality or availability. Further, with reference to the 2005 UMP, it states that the expansion will not impact air quality; and, although short term impacts during the construction phase of the FrontStreet project are expected, the projects are, "not expected to result in violations of New York State or National Air Quality Standards" (p. 73).

Also with reference to the 2005 UMP and 2006 FrontStreet permit application, the 2008 SEIS concludes that, "with the implementation of mitigation measures for the individual projects, there would be no cumulative adverse impacts on aesthetics" (P. 74) and no impact on historic or archaeological resources (p. 75). The document also addresses the impact to "Open Space and Recreation", concluding that the, "relatively small change" in population would result in no undue adverse impact, and that "undesired recreational activities are avoided" by the implementation of a "Master Agreement" by and between the Town and FrontStreet that restricts activities, including use of ATVs, on the ski trails (p. 75-76). No impact to any critical environmental area, traffic, use and conservation of energy, noise and odor, public health or solid waste management is identified (p. 76 - 79, 81). The document does, however, indicate a positive impact on, "Secondary Growth, Fiscal Impact and Character of Community or Neighborhood" (p. 79-80). Finally, it states, with reference to the 2005 UMP and 2006 FrontStreet permit application, that the projects, "would not result in significant irreversible or irretrievable commitment of resources beyond those specifically described previously" (p. 81). Notably, as set forth above, the 2005 UMP/FSEIS noted no significant or irretrievable commitment of resources (Return 8, p. 8-1).

The 2008 SEIS continues with a description of the measures recommended to mitigate the "potential cumulative impacts" of the projects (Section 7 - p. 81). These recommendations [*7]include limiting soil disturbance to five acres at any one time (p. 82) , expanding the water quality monitoring program (p. 82-84), widening the road to provide two exit lanes from the Gore Mountain Ski Center, and enhancing the golf course management protocol (p. 85). Finally, it recommends that the FrontStreet Homeowners Association perform site inspections and permit compliance audits and that it recommend and implement remedial measures if necessary (p. 85-86).

Based on the foregoing, the Court finds that there was a rational basis for the state respondents' determinations that the 2005 UMP complied with the APSLMP. Review of the 2005 UMP/FSEIS and the 2008 SEIS indicates that contrary to petitioner's argument, the UMP addressed "the physical, biological and social carrying capacity of the area with particular attention to portions of the area threatened by overuse in light of its resource limitations and its classification under the master plan".Notably, Gore is classified as an, "Intensive Use" area, thus, the area is expected to withstand "a significant number of visitors" for "intensive forms of outdoor recreation" (APSLMP 38).

In light of Gore's classification, the documents amply assessed the existing, natural, physical, (see 2005 UMP Section 2 pages 2-2 - 2-2; 2008 SEIS 19-25), biological (2005 UMP Section 2 pages 2-2 - 2-4; 2008 SEIS 25-29), and the social "intangible" characteristics of the Gore Mountain Intensive Use Ski Area, such as the visibility of the area from surrounding areas (2005 UMP Section 2 p. 2-4, 2008 SEIS p. 29), as well as the presence of man-made downhill ski slopes, trails, ski lifts, parking lots, buildings, maintenance roads, snow making operations, and the extent of public use of the facility (2005 UMP/FSEIS Section 2 pages 2-4 — 2-10; 2008 SEIS pp. 29-67) , that affect the "character of the land".Each document also addresses the extent to which the physical, biological, and social/intangible resources of the area would be adversely impacted by the proposed expansion of the ski area and development on the adjacent private and public property, and, in most cases, determined that there would be either no impact or that the impact could be avoided through the implementation of specific mitigation measures (2005 UMP/FSEIS, Section 5; 2008 SEIS pp. 67-81).

The Court also rejects petitioners' argument that the state respondents' determinations are not entitled to deference because the document failed to state the "management objectives for the protection and rehabilitation of the area's resources and ecosystems and for public use of the area consistent with its carrying capacity" (APSLMP p. 10). To the contrary, as set forth above, after identifying the resources and the potential impacts to same, the 2005 UMP/FSEIS and 2008 SEIS stated the "management objectives" inasmuch as both identified the actions required to minimize adverse impacts to the area's physical resources (e.g. erosion control practices), wildlife and other biological resources (e.g. feathering trail edges to preserve potential Bicknell's Thrush habitat) and water resources (e.g. requiring the development and implementation of stormwater pollution prevention plans).

The Court's determination is not altered by the acknowledged fact that the 2005 UMP does not use the term, "carrying capacity" . Petitioners' insistence that the "well recognized concept" was not addressed because the term was not used, is an argument of form over substance.As noted above, the substance of the documents indicates that the area's carrying capacity was addressed inasmuch as the areas physical, biological, and social characteristics were reviewed and mitigation measures were identified such that the expected use of the area will not [*8]degrade the identified physical, biological, or social characteristics of the Gore Mountain Intensive Use Area.

The challenged documents evince that in most cases the state respondents determined that neither the Gore Mountain Ski Area project alone, nor the Ski Area project combined with the adjacent FrontStreet project would have a significant adverse impact on the physical, biological, or social conditions existing at the Gore Mountain Intensive Use Area. (See Return 50, 51). Accordingly, the Court declines to accept petitioners' rigid interpretation of the APSLMP. Such interpretation would not require the respondents to make additional or different findings, rather, it would merely require reorganization or, possibly, re-characterization of findings that have been adequately made and set forth in the 2005 UMP.

Petitioners second cause of action alleges that the 2005 UMP amendment violates the APSLMP, Executive Law §816 and the New York State Constitution Article XIV because the "level of development" approved exceeds and contravenes the guidelines set forth in the APSLMP and improperly promotes commercial and private business development (see Second COA - Petition ¶¶110-117). Petitioners' arguments focus on certain parameters of development of state land in the Adirondack Park that are set forth in the State Constitution, the APA Act (Executive Law Article 27) and the APSLMP, and the State Environmental Conservation Law. In particular, the New York State Constitution, in relevant part, provides:

§ 1. [Forest preserve to be forever kept wild; certain highways and ski trails authorized]

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. Nothing herein contained shall prevent the state... from constructing and maintaining not more ... than forty miles of ski trails thirty to two hundred feet wide, together with appurtenances thereto, provided that no more than eight miles of such trails shall be in excess of one hundred twenty feet wide, on the slopes of Gore and Pete Gay mountains in Warren county, ...

(NY Const. Art. XIV).The APSLMP developed pursuant to Executive Law §816(1) provides that, for "intensive use" areas such as the Gore Mountain Ski Area, the "primary" "basic [guideline] for management and use" is:

... to provide the public opportunities for ... downhill skiing, ... and similar outdoor recreational pursuits in a setting and on a scale that are in harmony with the relatively wild and undeveloped character of the Adirondack Park"

intensive use facilities should be ... managed so as to blend with the Adirondack

environment and to have the minimum adverse impact possible on surrounding state lands and nearby private holdings.

"[u]nit management plans will also address the administrative actions and the minimum facilities necessary on a site-specific basis, as may be pertinent to the area to attain the stated management objectives of the area"

Against this framework, petitioners contend that, (1) the "primary purpose" of the 2005 UMP is to promote development of the local economy (Caffry Reply Affirmation, ¶29); (2) the state respondents had no statutory authority nor any authority in the APSLMP to consider economic development as part of its UMP (Id., ¶¶ 44-58); (3) the forest preserve was not intended to be used to promote the local economy (Id., ¶¶ 59-65); (4) the Constitutional Amendment authorizing the Gore Mountain Ski Center does not permit, "its commercialization for the benefit of private property owners in the vicinity" (Id., ¶67); and, (5) the 2005 UMP Amendments exceed the "limits" on the use of intensive use areas set forth in the APSLMP (Caffry Affirmation ¶¶70-76). Accordingly, argue petitioners, the 2005 UMP Amendments "were ultra vires the powers of the respondents, lacked a rational basis, were arbitrary and capricious and should be annulled (Id., ¶¶58, 69, 77).

In response to petitioners' second cause of action, respondent contends that any private, economic benefit to either FrontStreet or the local municipalities is incidental or secondary to the public benefits derived from the Gore development and thus would not serve to invalidate the UMP Amendments (Mem. Law p. 12 [citing Murphy v. Erie County, 28 NY2d 80; Imburgia v. City of New Rochelle, 244 AD2d 44, lv. denied, 88 NY2d 815; Tribeca Community Ass'n. v. State Urban Development Corporation, 200 AD2d 536, lv. denied, 84 NY2d 805). Petitioner counters that the "forever wild" clause of the New York State Constitution (Article XIV) does not permit development on forest preserve lands where such development is intended, primarily, to serve a private interest (Caffry Reply Affirmation, ¶¶67-68 [citing 1947 NY Op. Atty Gen 171; 1996 NY Op. Atty. Gen. 5]).

Although the Court finds no support in the record for petitioner's assertion that economic development was the primary purpose of the 2005 UMP ^[FN7], there is no dispute that the economic impact of the Gore Mountain development on the surrounding community was considered as part of the 2005 UMP amendments. Indeed, the document states, with reference to a report by the New York State Comptroller entitled, "Economic Impact Study of the Gore Mountain Interconnect", that the interconnection between Gore and the North Creek Ski Bowl, "will help to establish Gore as a destination ski area" and with the interconnect, "the economic impact of Gore on the regional economy will be significant, and more than double revenues to the regional economy" (See Return 8, p. 1-1; Appendix 1). These economic benefits do not in any way detract from the stated "primary" and unchallenged purpose of the UMP, that is, to improve public access to the area. In the Court's view, the crux of petitioner's argument is that respondents did not have any authority to consider economic development as part of the UMP. [*10]

The Court disagrees with petitioners that there is any constitutional bar to the level of development approved within the 2005 UMP.The purpose of the "forever wild" provision of the Constitution was, "to prevent the cutting or destruction of the timber or the sale thereof, ...to the injury and ruin of the Forest Preserve" (Association for the Protection of the Adirondacks v. MacDonald, 253 NY 234, 238). In MacDonald, the Court of Appeals reasoned:

The Forest Preserve is preserved for the public; its benefits are for the people of the State as a whole. Whatever the advantages be of having wild forest lands preserved in their natural state, the advantages are for every one within the State and for the use of the people of the State. Unless prohibited by the constitutional provision, this use and preservation are subject to the reasonable regulations of the Legislature

The Forest Preserve and the Adirondack Park within it are for the reasonable use and benefit of the public, ... A very considerable use may be made by campers and others without in any way interfering with this purpose of preserving them as wild forest lands

Since MacDonald, Article XIV was amended to permit limited destruction of trees necessary for the development of Gore Mountain. There is no dispute that the proposed trail expansion will occur on State owned, forest preserve lands and that the trail acreage will not exceed the limitations set forth in Article XIV. The trails and lifts will be open to the public and are and will continue to be publicly owned and operated. The Attorney General's opinions cited by petitioner are distinguishable inasmuch as this is not a case where no public purpose nor any public interest is served (see 1996 NY Op. Atty. Gen. 5 [installation of an underwater electric cable and associated above-ground switchgear and transformers was constitutionally prohibited because the cable would serve only thirteen private residences]), nor is it a case where a private owner intends to construct, operate or maintain any portion of a ski area located on forest preserve lands (see 1947 NY Op. Atty Gen 171). Indisputably, any improvements at Gore Mountain will necessarily impact the both the state owned lands and the surrounding community. Here, the improvements to state owned lands are within the Constitutional limitations. Contrary to petitioner's thesis, the impact of such improvements on the surrounding non-State owned lands is not an unconstitutional "commercialization" of forest preserve lands simply because a positive economic impact is expected to result from the improvements.

The Court is also unable to discern any statutory basis prohibiting the state respondents from considering economic development when developing a unit management plan. The APA Act (Executive Law Article 27, §§ 801 et. seq.) specifically recognizes that the Adirondack Park is,

enhanced by the intermingling of public and private land. A unique pattern of private land use has developed which has not only complemented the forest preserve holdings but also has provided an outlet for development of supporting facilities necessary to the proper use and enjoyment of the unique wild forest atmosphere of the park.

basic purpose of this article is to insure optimum overall conservation, protection, preservation, development and use of the unique scenic, aesthetic, wildlife, recreational, open space, historic, ecological and natural resources of the Adirondack park.

The APA's oversight obligation, therefore, extends to both public and private development of the Adirondack Park.

Petitioners are correct that the APSLMP developed pursuant to the APA Act (Executive Law §816) does not explicitly direct the APA or DEC to consider the economic impact of a proposed UMP. The "unifying theme" of the APSLMP, however,

"is that the protection and preservation of the natural resources of the state lands wiithin the Park must be paramount. Human use and enjoyment of those lands should be permitted and encouraged, so long as the resources in their physical and biological context as well as their social or psychological aspects are not degraded".

should be managed so as to blend with the Adirondack environment and to have the minimum adverse impact possible on surrounding state lands and nearby private holdings. They will not be situated ... where they will have a negative impact on competing private facilities

As set forth above, this Court has determined that the State respondents' determination that the proposed development would not degrade the physical, biological and social resources of the area was rationally based.Based on express purposes of the APA Act and the terms of the APSLMP, the Court does not agree with petitioners that respondents are prohibited from considering economic impacts of the UMP on the surrounding communities or landowners. Indeed, the express purpose of the statute is not only to conserve, protect, and preserve the park but also to develop it with consideration to its unique resources, including the "unique pattern" of private land use. Further, specifically with respect to management of "intensive use" areas, the state respondents have to consider the impact of the proposed changes on the surrounding land . Here, the state respondents properly considered both environmental and economic impacts on State owned and adjoining privately owned property.

Finally, it must be noted that the UMP is not a stand-alone document. There is no dispute here that UMPs are subject to the State Environmental Quality Review Act (SEQRA) (New York State Environmental Conservation Law Article 8; 6 NYCRR Part 617) and petitioner does not challenge the State respondents' customary practice of merging the UMP document with the environmental impact statement (EIS) (see Petition ¶¶ 39-40). Indisputably, economic considerations are an integral part of the SEQRA review. The regulations explain, for example, that [*12]

It was the intention of the Legislature that the protection and enhancement of the environment, human and community resources should be given appropriate weight with social and economic considerations in determining public policy and that those factors be considered together in reaching decisions on proposed activities. Accordingly, it is the intention of this Part that a suitable balance of social, economic and environmental factors be incorporated into the planning and decision-making processes of state, regional and local agencies. It is not the intention of SEQR that environmental factors be the sole consideration in decision making.

The Court also disagrees with petitioners that the expansion approved by the 2005 UMP exceeds the "limits" on the use of intensive use areas set forth in the APSLMP because the expansion is not in " harmony with the relatively wild and undeveloped character of the Adirondack Park" and not located and designed to "have the minimum adverse impact possible on surrounding state lands and nearby private holdings". Indisputably, as compared to areas of the Adirondack Parks classified as Wilderness, Primitive, and Canoe (APSLMP pp 20-32), the "limits" on the use of an Area designated "Intensive Use" are minimal (APSLMP p. 41). Further, the APSLMP directs that Gore should be "modernized" to the extent physical and biological resources allow (Id.).

As set forth above, the Court rejects petitioners' thesis that the "primary goal" of the project was to "maximize economic development". Further, the "primary management guideline" for use of the area is not, as petitioners suggest to, "maintain the wild character" of the area (Caffry Affirmation ¶72), but to provide opportunities for skiing, albeit in a "relatively wild and undeveloped" environment. As set forth above, the findings set forth in the 2005 UMP and 2008 SEIS provide a rational basis for the State respondents' determination that the UMP complied with the APSLMP, and thus, that the "modernization" was within the limits of the area's physical and biological resources, and did not exceed the limits of use of the Gore Mountain Intensive Use Area. Accordingly, it is

ORDERED AND ADJUDGED that the Petition is dismissed, without costs.

This represents the Decision and Order/Judgment of this Court. This Original Decision and Order is being returned to the Attorney General. The below referenced original papers are being delivered to the Albany County Clerk.The signing of this Decision and Order/Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provisions of that rule regarding filing, entry, or notice of entry.

SO ORDERED!

Dated: Albany, New York

, 2009

_______________________________________ [*13]

Michael C. Lynch

Justice of the Supreme Court