Tuesday, May 29, 2012

Phil Brown: APA Replies to Tupper Lake Suit

Much of the lawsuit over the Adirondack Club and Resort boils down to a dispute over what kind of development is appropriate on land designated Resource Management, the Adirondack Park Agency’s (APA) strictest zoning classification for private land.

The developers want to build eighty homes on 4,740 acres of Resource Management (RM) lands in Tupper Lake, including thirty-five “Great Camps.” Protect the Adirondacks and the Sierra Club contend that the resort would be incompatible with the purposes of RM lands as spelled out in the Adirondack Park Private Land Use and Development Plan.

Like most RM lands, the resort’s property is forested and has been logged for years. The land-use plan says the “primary uses” of RM include forestry, agriculture, game preserves, and “open-space recreation.” The plan lists single-family dwellings as a “secondary” use.

The plan states that that residential development is allowed on RM land “on substantial acreages or in small clusters on carefully selected and well-designed sites.”

That appears to be an either/or proposition, or at least so I thought. After the APA board approved the project in January, I asked agency officials which of the two criteria was met. Would the lot sizes amount to “substantial acreages”? Or would the homes be arranged in “small clusters”? Or perhaps some of both?

I could not get a clear answer from the APA. Protect and the Sierra Club, however, contend that the project meets neither criterion. “There is nothing optional about this statutory language,” they assert in the lawsuit. “It is not conceptual guidance. It is a mandate.”

But the APA and the developers, Preserve Associates, are arguing in their answers to the lawsuit that the either/or language does not constitute a legal requirement. The APA denies the complainants’ assertion without elaboration. The developers quote extensively from the project-hearing testimony of Mark Sengenberger, the former deputy director of regulatory programs at the APA.

In his testimony, Sengenberger calls the two criteria “important considerations for reducing impacts rather than as inflexible mandates that may or may not make sense in a given factual context or for a given applicant.”

What’s more, there is no agreement on what “substantial acreages” and “small clusters” mean. The terms have never been defined, and APA’s attempt to spell out their meanings was aborted several years ago (while the Tupper project was under review).

Protect and the Sierra Club contend that, in the context of Adirondack Great Camps, “parcels of thousands of acres could be substantial.” This is in line with a memo written by George Outcalt, an APA staff member, in 2005. “Great camps are often found in private parks that encompass thousands of acres,” Outcalt wrote. “… Statistically, many commercial forestry tracts are more than 1,000 acres. It is not uncommon for recreation leases to involve parcels in the 1,000+ acre range.”

The APA staff that reviewed the project, however, came to a far different conclusion. Agency regulations allow fifteen homes per square mile on RM land, which works out to one for every 42.7 acres. Eight of the Great Camps will be built on lots averaging 336 acres. The APA staff wrote that these lots “could be fairly considered to constitute ‘substantial acreage’ for purposes of RM compatibility, since they all substantially exceed the 42.7 average lot size for RM lands.”

The other Great Camps would be built on lots smaller than 42.7 acres. The APA staff concluded that these Great Camp lots “do not comprise ‘substantial acreage’ nor … are they ‘in small clusters.’”

And then there is the business about “primary” versus “secondary” uses. All sides agree that primary uses such as forestry and game preserves are presumed to be compatible with the objectives of managing RM lands. In the suit, Protect and the Sierra Club argue that secondary uses, such as residential development, do not enjoy this presumption: “an applicant must prove that they are compatible.”

Again, the APA and Preserve Associates disagree with the environmental groups. In its answer, the APA states that “all new single family dwellings are presumptively compatible with the character description, purposes, policies and objectives of ‘resource management’ areas because they are on the ‘resource management’ list of compatible uses.” Preserve Associates accuses the complainants of “manufacturing a distinction between ‘compatible uses’ and ‘secondary uses’ when no such distinction exists in the statute.”

So to sum up:

  • It’s unclear whether there is a meaningful distinction between primary and secondary uses.
  • It’s unclear whether the language allowing residential development “on substantial acreages or in small clusters” is a mandate.
  • It’s unclear what “substantial acreages” and “small clusters” mean.

The Adirondack Club and Resort is the largest development approved by the APA. It’s a shame we didn’t have answers to all these questions before the decision was made.

Photo by Phil Brown: a Tupper Lake resident demonstrates outside APA offices in January.

Phil Brown

Phil Brown

Since 1999, Phil Brown has been Editor of the nonprofit Adirondack Explorer, the regional bimonthly with a focus on outdoor recreation and environmental issues, the same topics he writes about here at Adirondack Almanack.

Phil is also an energetic outdoorsman whose job and personal interests often find him hiking, canoeing, rock climbing, trail running, and backcountry skiing.

He is the author of Adirondack Paddling: 60 Great Flatwater Adventures, which he co-published with the Adirondack Mountain Club, and the editor of Bob Marshall in the Adirondacks, an anthology of Marshall’s writings.

Visit Lost Pond Press for more information.


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12 Responses

  1. Paul says:

    “on substantial acreages”? 4740 acres falls under this definition doesn’t it?

    Phil, what would you define as “substantial acreage” if this isn’t? I think almost anyone would.

    I don’t think this is an open question.

    Hot debate. What do you think? Thumb up 7 Thumb down 4

  2. Paul says:

    Also there are SFD’s all over RM lands, seems like a clear precedent if you are looking for answers to these questions.

    Like or Dislike this comment: Thumb up 3 Thumb down 4

  3. Phil says:

    Paul, it depends on how many houses you build on those 4,740 acres.

    Like or Dislike this comment: Thumb up 3 Thumb down 0

    • Paul says:

      Phil,

      The number of dwellings is well defined in the statute isn’t it? I don’t think that is an open question.

      Like or Dislike this comment: Thumb up 1 Thumb down 1

  4. Pete Klein says:

    What you love and hate about lawyers is how they play with words. It means this. No it means that.
    If you look at 4,740 acres from 20,000 feet up in the air, it doesn’t amount to much. If you compare it to 6 million acres, it amounts to .00079% of the Adirondack Park.
    Do I care? If the APA and the people of Tupper Lake don’t care, why should I?
    But lawyers do like to have fun and they do look for ways to be paid more than $100 for them to have fun with words.

    Like or Dislike this comment: Thumb up 2 Thumb down 1

  5. Paul says:

    It seems like the real beef here is that the density of development that was agreed to in the 70′s when the law was written is now no longer acceptable to some parties.

    Like or Dislike this comment: Thumb up 1 Thumb down 1

    • Bob says:

      The science behind “green” development has changed. Back then they wanted homes far flung and on large lots. Now it’s all about clustering.

      Like or Dislike this comment: Thumb up 1 Thumb down 0

  6. Mike S says:

    Is it just my computer or is this article garbled together with other text making it almost unreadable?

    Like or Dislike this comment: Thumb up 1 Thumb down 0

    • John Warren John Warren says:

      Hi Mike,

      Does that still happen when you reload the page? If so, can you send me a screen shot to adkalmanack@gmail.com?

      Thanks for letting us know.

      John Warren
      Editor

      Like or Dislike this comment: Thumb up 0 Thumb down 0

      • Phil says:

        I’m having the same problem, and with other articles on the site as well. I am using FireFox as my browser.

        Like or Dislike this comment: Thumb up 0 Thumb down 0

  7. Mike S says:

    John, It still happens even if I reload the page. Sorry I’m an unsavy tech dinosaur, don’t know how to send you a screen shot.

    Like or Dislike this comment: Thumb up 0 Thumb down 0

    • John Warren John Warren says:

      Hi Mike,

      That’s OK. We’re looking into it, but it would help if we knew what version browser and operating system you’re using.

      Thanks again for your help.

      John

      Like or Dislike this comment: Thumb up 0 Thumb down 1