PARCELS AT RISK ...
Someone’s been working on the railroad at the site of the old Pilgrim State Psychiatric Facility railroad spur and the members of the Friends of the Edgewood Oak-Brush Plains Preserve are vowing to stop them in their tracks.
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| Edgewood Oak-Brush Plains Preserve |
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| Springtime in the Edgewood-Oak Brush Plains Preserve |
Since 2008, the New York and Atlantic Railway Company (NY& A) has been clearing trees, using plant defoliants and even burning rare plants approximately 2000 feet north from the southern end of the spur, according to residents who documented the activity and notified the Office of Parks, Recreation and Historic Preservation (OPRPH) and the New York State Department of Environmental Conservation (NYSDEC) in May of 2009. NY&A has been in business since 1994 and has an agreement with the Long Island Railroad (LIRR) to run freight trains on Long Island since 1997.
Patricia Burkhart, the President of the Friends of the Edgewood Preserve’s Board of Directors insists that no one should be doing any work on the railroad spur on the property which is contiguous to the Pilgrim parcel which is also contiguous to the Edgewood Preserve. The Edgewood Preserve is an 843 acre-wildlife habitat tucked neatly into one of the most developed and densely populated areas in Western Suffolk, located just off Old Commack Road between three Long Island towns, (Islip, Babylon and Huntington) Friends of the Edgewood Preserve are also fighting to get the 118 acre Pilgrim parcel designated part of the Edgewood Preserve. The land in question is a critical groundwater protection area for Long Island's drinking water.
“We first discovered the destruction on the spur in 2008 at the Southern end when they were spraying the defoliants. Then it was about 1500 feet lost. Last summer we discovered more and as of August 2010, the total is approximately 3500 feet destroyed.’ Ms. Burkhart told Freelance Investigations.
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| Mat Oppen legal intern for Friends of Edgewood Preserve looking South to main RR switch. |
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| Pitch pine and scrub oaks were removed to this point. Up to two years ago most of the spur was covered completely. |
In 1987, then Governor Mario Cuomo, officially turned the grounds of the old Edgewood State Hospital into the Edgewood Oak-Brush Plains Preserve. “It is a rare, globally imperiled wildlife habitat in the State and it is the only pitch pine scrub oak habitat on Long Island.” according to Ms. Burkhart.
“Chapter 635 of the Laws of 1987” as it became known; was intended to preserve unique lands on Long Island, for the people of New York State and is the law cited by those claiming the land should revert to the Edgewood Preserve and then be under jurisdiction of the DEC.
This is not a new issue. Senator John Flanagan (East Northport) weighed in on it as far back as November 2008, when he responded in a letter to a Dix Hills constituent concerned about the fate of the Pilgrim parcel.
Section 7 of Chapter 635 of the Laws of 1987 clearly provides that the Commissioner of the Office of General Services (OGS) "shall" arrange for the transfer of lands now or hereafter not necessarily for use by Pilgrim State Hospital into Oak-Brush Plains State Preserve. On October 27, 1998, OGS transferred 86 acres of land into the Preserve in fulfillment of the commitment made in Chapter 635. Despite the presence of approximately 118 additional acres of vacant land that currently exist adjacent to the Preserve and which are no longer needed by Pilgrim State Hospital, it would appear that Commissioner of OGS has failed to fulfill his responsibility under Chapter 635 by not transferring this property into the Oak-Brush Plains State Preserve.
Senator Flanagan then wrote, despite the veto by Governor Patterson of Senate bill (6728 A) which would have forced the OGS to immediately transfer the land to the State:
It is the opinion of Senate Majority Program and Counsel that the Commissioner of OGS still maintains the authority granted under Chapter 635 of the Laws of 1987 and must fulfill that commitment by transferring the property described in the Senate bill into the Oak-Brush Plains State Preserve. 11/6/08
Legislation Gets New Life in Assembly and Senate
Recently, Senator Owen Johnson (West Babylon) has re-introduced a bill (S-2734) to return the 118 acre Pilgrim parcel to the State DEC, where it can be protected. The bill was introduced with co-sponsors Senator Flanagan and the newly elected, Lee Zeldin (Shirley). It is a bill very similar to the one introduced earlier this year by Assemlyman Phil Ramos (Brentwood). This bill A3836 also demands the land revert to the State DEC and is co-sponsored by: Congressmen Andrew Raia (Northport), Steve Englebright (East Setauket); the Chair of the Committee on Tourism, Parks, Arts and Sports Development, Robert Sweeney (Lindenhurst); former Chair of the State Committee on the Environment and James D. Conte (Huntington).
From the Senate Bill:
More than twenty years have elapsed since Chapter 635 of the laws of was enacted and the Pilgrim State Hospital land has not been annexed to the Preserve. In recent years, however, the Pilgrim State Hospital land had been considered as a possible site for the New York State Department of Transportation to construct a large commercial multi-modal project known as the long Island Truck & Rail Inter Modal (LITRIM) Facility. The Region 10 Staff of the New York State Department of Transportation dedicated a tremendous amount of time and energy into the planning of the LITRIM project with the goal of reducing long haul truck traffic on the roads of long Island. While the sponsors recognize and support the need for the development of alternative methods of freight movement on and off long Island in order to reduce the burden of long haul trucking on the highways of long Island, the Pilgrim State Hospital location, due to recent substantial commercial development in the surrounding areas, is unsuitable for a multi-modal facility. Today, the area immediately surrounding the land is so vastly different than it was just a few years ago when the LITRIM project was first proposed. The recent approval of three major construction projects by town officials has so overburdened this area with traffic congestion that the State should not support yet another project that would further exacerbate the traffic congestion problem in this area. Consequently, this area should not undergo further development and the subject land should be transferred to the Edgewood Preserve as originally called for in 1987, thus ensuring more green space and mitigating future traffic congestion.
Ms. Burkhart claims that in the 1920’s the Gardiner Family, (also owners of Gardiner's Island) who originally owned the land, gave portions of their property for the construction of the Sagtikos State Parkway. Approximately 100 acres of forest was to remain on either side of the Parkway (60% on the east side and 40% on the west side) and designated to be state park land for public use only.
Then in 1929, the Office of Mental Hygiene requested permission of the Gardiner family to build a railroad spur to enable easier delivery of supplies and materials to the Pilgrim State Psychiatric Hospital, then under construction. The Gardiner Family agreed and wrote the sidetrack agreement that is now in the middle of a tug of war over its' purported purpose.
In March 2010, more destructive activity took place on the spur and once again the NYS-DEC and the OPRHP were notified by the Friends of the Edgewood Preserve, that approximately 2000 feet of mature forest had been cut down. In some places whole trees were pulled out by their roots and rare plants, including “wild pink” which had just been identified in 2008, by Steve Young of the New York State Natural Heritage Program, were destroyed within months of the finding the rare plants.
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| "Wild Pink" |
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| Trees tossed on the side after being ripped out by the roots |
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| Trees pulled out by their roots (Photos by P. Burkhart) |
Ms. Burkhart claims all Freedom of Information requests turned up no permits and/or agreements allowing NY&A to store and/or use heavy equipment on state land (including a back hoe with no identifying information) and to destroy wildlife seven or eight feet on either side of the spur and along approximately 2000 feet of what she believes is public land.
Calls to the New York State Department of Environmental Conservation (DEC) were responded to by Citizen Participation Specialist, Aphrodite Montalvo, who wrote in response to questions sent by Freelance Investigations:
DEC conducted an exhaustive investigation regarding the pesticide and clearing use and determined that the herbicide was applied by a contractor working for New York and Atlantic. The DEC investigation concluded that the commercial application of herbicide at issue was performed by a NYS-registered pesticide business, using NYS-registered pesticides in accordance with pesticide label directions. DEC staff investigating the matter did discover a record keeping violation. The violation was: "ECL 33-1205(1) requiring all commercial applicators to file at least annually a report on or before February first for the prior calendar year containing information for each pesticide application including EPA Registration number, product name, quantity of each pesticide used, date applied, and location of application. (A. Montalvo NYS/DEC)Recently, Aslplundh Tree Expert Company, Railroad Division, paid a thousand dollar fine to the DEC for the 2008 violation after an order on consent signed by DEC LI Regional Director, Peter Scully was issued in December of 2010.
When asked what happened to soil samples collected- had they ever been tested? The DEC response was:
The purpose of collecting the samples was to determine what herbicides were responsible for the vegetation control. Because the investigation has already determined the name of the pesticide, as well as the quantity, no additional information would have been gained in analyzing the samples. ( A. Montalvo NYS/DEC)
"Since they went to the trouble and expense of going to the site and taking the soil samples, we believe an agency meant to protect our air land and water would actually test the soil to make sure of what it contained. They trusted a company who failed to keep proper records. Testing the soil would have been in the publics' best interest." according to Ms. Burkhart.
Ms. Montalvo pointed out the fact that the land in question does not belong to the DEC and that the State Parks Department has made the following determination regarding the spur:
State Parks has advised other state agencies that the activities this spur was originally used to service the Pilgrim State Psychiatric Center. According to Parks, the spur was to be used by the State, and if the spur was not used for state purposes, it was agreed that the Rail Road could utilize it for their needs. According to Parks, no additional permits were required for use of the spur by New York and Atlantic. (A. Montalvo NYS/DEC)Peter Scully, the Director of the Long Island Region of the NYSDEC was asked about his opinion on whether or not the land belongs to the State or if the LIRR can let NY&A use it. He declined to respond.
In an August 5, 2010 letter from Carol Ash, then Commissioner of NYS OPRHP, Commissioner Ash wrote a response to Senator Owen Johnson (R-4th Senate District) who has championed the cause of the Preserve as far back as 2006 and had written to her about the renewed activity on the spur.
Dear Senator Johnson:
Thank you for your letter of July 19, 2010 regarding the Edgewood/Sagtikos Parkway Right-of-Way Rail Spur. As you know we are aware of the renewed activity on the spur and in response our Long Island Regional Director Ron Foley met on July 21, 2010 with Bob Clark of New York & Atlantic Railway (NY&AR) as well as Lou Sullo from the LIRR.
At that meeting Mr. Clark explained that a total of 3600’ of rail was recently cleared to temporarily store railroad cars. While we had hoped to examine documentation that describes the conditions under which NY&AR uses the State Park land, no such documents were produced. Since we cannot locate any agreement that may have been executed by the Office of Mental Health (DMH, now OMH) that would afford the LIRR or NY&AR any rights to use the siding we asked both Mr. Clark and Mr. Sullo to provide any documents that would establish their right to use this siding as soon as possible.
They were informed, regardless of what agreements may exist, State Parkland, including the parkways (on which this site is located) is held by OPRHP in trust for current and future generations of New Yorkers as recreational, scenic and natural lands. No work of any kind may take place on State Park property without submitting a plan for approval. That includes, but is not limited to clearing; and the use of pesticides and herbicides is strictly forbidden. The only permission given NY&AR at this time is for clean up of railroad debris and all other litter throughout and adjacent to the siding corridor and that care should be taken for the protection of endangered plant species.Commissioner Ash gave them an end of August deadline to produce the requested documents or discontinue using the track for any purpose other than the completion of the clean up and Ms. Ash also informed the Senator that “the DEC has two open investigations underway at the site for removal of plants without the permission of the landowner (Parks).”
(Carol Ash, Commissioner of Parks August 5, 2010 )
Within two months of sending this letter challenging the LIRR, Carol Ash was out as Commissioner and Andy Beers was in as Acting Commissioner of OPRHP for the State. Ms. Ash now works in an advisory role for the Alliance for New York State Parks.
Dan Keefe, Deputy Public Information Officer for the NYS OPRPH, provided Freelance Investigations with a copy of both the 1929 sidetrack agreement between the Gardiner family and the Long Island Railroad and the 1996 transfer agreement between the LIRR and NY&A. According to OPRHP they have concluded that these documents do give NY&A the rights to do maintenance on the spur.
In a letter dated November 4, 2010 from Andy Beers to Senator Owen Johnson, Mr. Beers appeared to change the opinion OPRHP had taken earlier, in August under Commissioner Ash. He wrote, “State Parks has received several documents that establish NY&A’s right to utilize the Pilgrim Spur.”
When the spur was first established it was used mostly for passengers, coal and some light supplies, but it was not a freight operation per say, according to Ms. Burkhart.
Mr. Beers insisted that the 1929 agreement entered into between the State and the LIRR giving rights to the LIRR still held- and that the LIRR had assigned those rights over to the NY&A.
Ms. Burkhart insists this is their mistake, the agreement was between the Pilgrim State Hospital (Office of Mental Hygiene) and the LIRR with the permission of the Gardiner family, not with State Parks. "There never was an agreement between State Parks and the LIRR, it was between the hospital and the LIRR, therefore Parks could not give permission." Ms. Burkhart added.
“The NYSDOT has reviewed those documents and concurs that they provide the LIRR and NY&A authorization to operate and conduct maintenance activities on the spur.” according to Mr. Beers’ letter. NY&A has agreed to clean-up debris along the spur and will “maintain good communications during the clean-up.” Andy Beers/NYS OPRHP
Ms. Burkhart claims that OPRHP had been in possession of these same documents as far back as last summer and did not consider them to be reasonable proof that NY&A had rights to the land. She points to the fact that Carol Ash was in possession of these same documents when she wrote her letter stating the land belonged to the State Parks and didn’t consider them enough for NY&A to claim the rights to regenerate the spur and destroy the trees and rare plant life in the process.
Ms. Burkhart believes the LIRR had no right to assign those rights to any other company or entity, according to the sidetrack agreement.
FOR HOSPITAL USE ONLY…?
The next piece of the story is currently the crux of the issue. According to Ms. Burkhart and other local environmental advocates, the permission was granted “FOR HOSPITAL PURPOSES ONLY” as per the sidetrack agreement, which was an addendum to the Gardiner’s will. Ms. Burkhart claims this shows that the LIRR had no right to confer rights to NY&A.
Ms. Burkhart said according to the addendum, it is "not for benefit of any other party not part of this agreement."
Since the hospital has not used the spur since 1980, it has regenerated back to a pitch pine scrub oak forest, which according to the interpretation of the will by Ms. Burkhart and other environmental groups, should be left to grow unfettered.
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| Pitch pine and scrub oak regenerate after being cut in 2008. |
Mr. Dick Amper, the Director of the Pine Barren’s Society spoke to Freelance Investigations regarding the issue in a recent interview and said “Burkhart is right, the Parks Department is wrong.”
Mr. Amper criticized the inaction on the part of politicians in such a serious matter. “It’s been dragging on too long. This is a critical groundwater protection area. The land is too valuable not to protect and we also need to preserve this critical habitat.”
The land and forest in question has regenerated over the spur. It is adjacent to the Pilgrim property and in order to establish a critical wildlife habitat corridor should become a contiguous area of the Edgewood Preserve according to Ms. Burkhart.
Attorney Karen Holmquist of the Mineola law firm of Klemanowicz, Holmquist &VandeStouwe LLP, agreed with Ms. Burkhart and called the Spur property use an "heir ship" issue. “The State hasn’t paid any attention to the Gardiner Will. It is ignoring the deeds transferring the rights, because the will was set up with reversionary rights to return it to the Gardiner Family Estate.” according to Ms. Holmquist.
Ms. Ash left the Parks department in October of last year and went to work as an advisor at the Alliance for New York Parks. According to published reports at the time, it was because she believed she could do more to keep the Parks open if she worked with the non-profit in an advisory position, rather than continue to try to work as Commissioner of Parks for New York, without the proper funding or necessary workers. OPRHP lost more than 1500 employees over the last two years under Governor Patterson- nearly 21% of the total State Parks workforce.
The fact that Carol Ash is still working on behalf of New York parks in any way gives rise to a sliver of hope for the environment on Long Island, according to Ms. Burkhart who believes that the DEC as well as OPRHP has been decimated by the loss of many of the most knowledgeable and ethical members of their agencies over the last few years- due to downsizing and severe budget cuts. Ms. Burkhart wonders "Who will protect the environment now?"
Governor Andrew Cuomo recently named former Open Space Institute (OSI) President, Joe Martens, as the new Commissioner of the Department of Environmental Conservation for New York State and also just appointed Rose Harvey as the new Commissioner of the Office of Parks Recreation and Historical Preservation. Andy Beers is out. Friends of the Edgewood Preserve are hopeful there is now a chance that the OPRHP will reassess the situation.
Some say the Gardiner family is really the only one with standing, to challenge use of the spur by NY&A in court, but to date no legal action has been taken by the Gardiner family.
A letter was sent by Freelance Investigations directly to Mrs. Alexandra Creel Goelet, the Gardiner family heir, in an attempt to clarify the intended meaning of the sidetrack agreement, and ask if they intend to reclaim the land, but it was not responded to at time of publication. Attempts to contact her attorney, were also unsuccessful.
THE INTERMODAL...the Smoking Gun?
Others may try to take matters into their own hands anyway. Dick Amper said “Legally or legislatively we need to complete this to fruition in 2011.”
Mr. Amper said politics is the real reason this issue is stalled. He pointed specifically to Congressman, Jerold Nadler and Governor Paterson as two key political figures involved in this issue. “Congressman Nadler and Governor Paterson have been the key obstructionists in this matter because they are more interested in building the Intermodal than in protecting our drinking water.”
The intermodal is a project that has been proposed for the Pilgrim Site and is considered by some the true smoking gun in this story. The proposed intermodal on the Pilgrim State Property is a rail-truck hub facility being touted by Congressman Nadler and strongly opposed by environmental groups who say the increased truck traffic defeats the purpose of an intermodal and the fact that this land is a critical groundwater protection area, makes it the worst choice for the intermodal project.
Environmentalists including Ms. Burkhart insist this land is already protected by Chapter 635 of the 1987 law and so it is not only a bad idea for the intermodal, it is also illegal, based on this law.
“While we applaud the basic idea of an intermodal to alleviate truck traffic by increasing rail/freight capacity, not on this groundwater protection area and not in the magnitude they propose. You would want several smaller ones strategically located on Long Island, not one mammoth one in the middle, that may not even take the trucks off the road.”, according to Mr. Ampers.
FRIENDS OF THE FRIENDS
Environmental groups that support the Friends of Edgewood Preserve and oppose the development on this land include- but are not limited to:
Pine Barrens Society
Sierra Club
Citizens Campaign
Natural Resources Defense Council
Great South Bay Audubon Society
Seatuck Environmental Association
American Littoral Society
Long Island Botanical Society
CLIMB
Parks and Trails NY
Environmental Advocates of NY
Two groups that are not local, but supported the revival of the truck-rail plan (the intermodal) are: Environmental Defense Fund and the New York League for Conservation Voters.
Local environmentalists, charge that these groups have nothing to do with Long Island and ignore the issue of increased truck traffic and its’ impact on the Brentwood area which due to traffic, already suffers severe health problems with a higher than average percentage of persons, suffering from asthma.
After the veto of the original Senate bill by Governor Paterson, Patricia Burkhart wrote a 4-page booklet titled "Averting a Health Crisis and Environmental Disaster in Western Suffolk County". Written in English and Spanish it outlined the reasons why the intermodal is a bad idea...both for the water and the air. She personally developed, paid for and distributed the booklets in the local neighborhoods, including Brentwood, which began a ground swell of concern by residents and their desire for more information and education about this critical groundwater protection area, according to Ms. Burkhart who added it is in its' fifth printing.
(View below shows proximity of Brentwood High School to the proposed LITRIM Intermodal and Pilgrim Spur) |
| Front cover of Burkhart's Booklet... |
Though Ms. Bergin-Weichbrodt admitted the resolution had “no teeth”, she said the Board felt it was important to support the land transfer back to the State, as according to the resolution, “The land in question is already under public ownership and was previously ordered protected as part of the Oak- Brush Preserve.”
To read the entire Senate bill: http://open.nysenate.gov/legislation/api/1.0/html/bill/S2734-2011
