BERNE — If Berne’s ATV law were to be adopted in its current form, it appears unlikely it would withstand a legal challenge.

Various municipalities across the state that passed similar laws have successfully been sued by residents because they failed to meet certain conditions, such as proving the necessity of ATV-friendly roadways and that the laws don’t negatively impact the environment. 

Some Berne residents are already reportedly ready to file a legal challenge if Berne’s law opening up its roadways for ATV use is passed. Former supervisor Kevin Crosier, who opposes the law, wrote on Facebook that funds and counsel have already been secured. 

However, it’s likely that the bill, which has faced considerable community pushback, will undergo serious changes before it goes to a town board vote. Deputy Supervisor Anita Clayton said at a town meeting this week that the proposed law was merely a “rough draft.”

She spoke at a session that was scheduled as a public hearing on the bill but that was postponed because the meeting hall had reached maximum capacity.

New York State Vehicle and Traffic Law says that municipalities can designate their roads as ATV-operable so long as those roads connect to trails to which “it is otherwise impossible for ATVs to gain access.” 

Berne officials have said that the purpose of the law is to provide greater access to trails that they hope will be established by the organization Hilltown Riders, in cooperation with local landowners. 

But state judges have interpreted that clause strictly, requiring municipalities to not just state that they believe the roads will provide access, but show proof of it. 

None of the Berne Town Board members nor planning board Chairman Joe Martin, who spearheaded the bill, immediately responded to an Enterprise inquiry about existing ATV trails in the town. 

However, no official has mentioned roads in the draft list provided by the town connecting to any trails, and it is not clear how the roads on that list were chosen.

In the 2004 case Hutchins v. Town of Colton, in which petitioners argued against the legality of an ATV law like Berne’s, Justice David Demarest rejected the town’s argument that, because state law allows the designation of the full length of a road, it’s allowed to designate those roads “simply for the the convenience, or even the caprice, of ATV users.”

“Any after-the-fact legislative interpretation which supports a reading of the statute which would provide municipalities with wholesale permission to designate the entirety of its paved highway surfaces for use in lieu of ATV trails/areas fails to address the fact that ATV manufacturers regularly warn against operation of these types of wheeled devices on paved surfaces,” Demarest wrote. 

“The fact that these vehicles are designed, primarily, for off-road use supports a reading of the statute which would limit their operation on paved surfaces to discrete areas/sections necessary to permit access to ATVappropriate riding trails or areas.”

That case was decided in St. Lawrence County Supreme Court, the lowest level in the state’s three-tiered court system.

The Enterprise reported earlier this month that, even at speeds less than 35 miles per hour, ATV use on paved surfaces is hazardous due to their design, and that several ATV and consumer groups warn against their use on pavement.

Demarest also argues that a broader interpretation of that clause would render it useless, and thereby contrary to the state legislature’s intention when it wrote the law. 

“While the Court understands the economic development and ease of use arguments to be made in favor of such a plan, it is nevertheless constrained to apply the law as written,” he wrote.

In 2007, a separate appeals case — the middle level in the state’s three-tiered system — involved the Town of Horicon, which had also passed an ATV law that was struck down because there was no evidence that it provided access to trails. The appellate justices unanimously agreed that, although the law “indeed contains a recital to this effect, there is absolutely nothing in the record to substantiate the Town Board’s findings in this regard.”

In 2018, Justice Peter A. Schwerzmann wrote that the village of Constableville also failed to prove that its ATV law provided access to trails, saying, “If this type of conclusory finding were allowed to stand, any section of public highway subject to being opened under VTL [Vehicle and Traffic Law] 2405 could in fact be so opened by simply including a determination that unless the public highways were so opened ATVs could not gain access to trails.”

“There must be fact finding following an investigative process which then concludes with the required determination,” he also writes. “Quite frankly, clearing the ‘otherwise impossible’ hurdle seems like a daunting, if not impossible task. However, modifying or eliminating that hurdle is a matter for the Legislature.”

Most recently, in 2021, the town of Clare was able to beat a similar challenge by providing a map showing that the roadway they designated connected with a trailhead, and showing how that trailhead would otherwise be impossible to access because of a river and land that prohibits ATVs.

That case also addresses the safety issue, with Judge Mary M. Farley writing that, because the state law allowing municipalities to designate roadways had “the safety and well-being” of ATV riders in mind, “the Town need not further consider the general health and safety concerns relied upon by the Council.” 

“Simply stated, the Legislature has already addressed and resolved this question,” she wrote, adding later that any issue with safety must be addressed with the legislature.

Environmental review

It also appears that towns must submit a law designating roadways for ATV use to a state environmental quality review, or SEQR, as this issue also pops up in litigation. SEQRs are required by New York State law for any “Type I” or “unlisted action” — more simply, any government action that may have an impact on the environment. 

Berne officials did not respond to an Enterprise inquiry about their intent to undertake a SEQR.

In the Town of Horicon appeals case, Justice D. Bruce Crew chastised the town for conducting too superficial of an analysis.

“Even assuming that no procedural infirmities existed here, we nonetheless would agree with petitioners that respondents failed to take the requisite ‘hard look’ at the various environmental impacts and/or provide a ‘reasoned elaboration’ for the negative declaration issued ... The review process undertaken by respondents, which charitably could be described as perfunctory, was devoid of any studies or analyses,” he wrote.   

“While we acknowledge that in the absence of such studies, the impact of opening the routes to routine ATV use upon soil erosion, drainage patterns, air quality and noise levels-to name but a few potential impacts-cannot definitively be ascertained, it simply strains credulity to suggest, as respondents summarily concluded, that opening forest lands to ATV usage would have no impact whatsoever upon any of these areas. Simply put, the review process undertaken by respondents falls far short of both the letter and the spirit of SEQRA.”

The SEQR Act was also addressed in the town of Clare case, with the town having been found to meet its burden of proof.

“It identified relevant areas of potential environmental concern; conducted a sufficient review of the ATV Use Law and its impacts; took the requisite ‘hard look’ at these concerns; and, made a reasoned and detailed elaboration of the basis for its determination,” Farley wrote.

Stakes

A successful legal challenge may be the only way that Berne residents opposed to the proposed ATV law can have it nullified should the board adopt the law without serious consideration of concerns being raised by residents and without adjusting it to meet the legal standards, since it does not appear possible for residents to petition for a referendum. 

The Department of State told The Enterprise this week that permissive referendums are allowed “only if expressly authorized in state law.”

Vehicle and Traffic Law does not appear to make this authorization, nor does Municipal Home Rule Law.

Clayton did, however, say that the board could potentially hold an informal vote at a public hearing by handing out ad hoc ballots to residents at the hearing, or by some other means. 

When asked whether he or any other resident were interested in holding a referendum in the event that it’s allowed, Crosier told The Enterprise that there would be no point holding a referendum on a law he believes to be illegal.