Tuesday, May 3, 2011

Dave Gibson: Reform APA Project Review

The Adirondack Club and Resort (ACR) adjudicatory public hearing is finally underway. The ACR project was first introduced as a conceptual Adirondack Park Agency (APA) application in 2004. Seven years later, it is still massive, involving 719 dwelling units spread over 6,200 acres near Tupper Lake.

Hearing witnesses gave ample evidence last week that show APA’s staff decision to deem the ACR application complete in the fall of 2006 to have been premature. In reference to the applicant’s repeated failing to produce any kind of serious wildlife or natural resource studies, a key witness for APA, retired director of regulatory programs Mark Sengenberger, noted that APA can only ask for additional information and not receive it so many times. Wildlife habitat was a key piece of that missing information, Sengenberger said. As other witnesses revealed, also missing was any rigorous assessment of alternative designs of the development.

The costs of not requiring comprehensive data before deeming such a complex and controversial application complete are considerable. Between the applicant, the APA and the hearing parties, millions of dollars have been spent over six years in pre-hearing phases of the ACR without arriving at any deep understanding of the site to be developed. There are also big gaps in understanding the reliability of infrastructure and financing data in the application. Countless person hours have been spent at APA struggling to get information out of this applicant. I suspect that several legitimate requests from citizens to send other Park projects to hearing were denied, in part, because APA is such a small agency and ACR has consumed too much of its human and economic resources since 2004.

Dr. Michael Klemens, a conservation biologist and witness for Adirondack Wild: Friends of the Forest Preserve, stated last week at the hearing: “we are forced to spend time at this hearing debating the lack of biological data, which should have been compiled and assessed before deeming the application complete, while instead this hearing should be discussing the implications of a robust set of ecological information that actually informs how and where to site development.”

In characterizing the proposed layout of development on the ACR site, Dr. Klemens stated “this is classic sprawl on steroids.” The ACR spreads negative ecological impacts out across the landscape, he stated. He added that by compacting the design to be less fragmenting of the landscape, many objectives would be met, both economic and ecological. Less money would be spent simply reaching the site with infrastructure, for example, while the impact or zones of influence of development on sensitive areas would be smaller. His testimony revealed a well known process to successfully build housing in sensitive landscapes that involves developing a complete understanding of the project site first, mapping that information, and only then developing plans for housing which avoids the most sensitive areas and maintains the integrity of ecological processes.

This could have happened for ACR, but unfortunately this application does the very opposite, he noted. Only the APA can determine why they allowed this to happen, he stated. Asked whether or not there is sufficient biological and ecological information in the application for the APA to reach a determination of no undue adverse impact, Dr. Klemens stated “there is insufficient data to make such a determination.”

Asked whether the APA could merely place conditions on a defective application which purport to “mitigate” adverse impacts, Dr. Klemens said “a defective application should never be conditioned. It should simply be denied without prejudice, and the applicant given time to develop that information, and resubmit the application.”

Dr. Klemens is the Planning Board chairman for a town in Connecticut. In that capacity, he said he often imposes expectations on developers working within a complex, ecologically important site to identify and map sensitive resources prior to laying out development sites. “Understand the site first, and from that understanding develop plans for housing or other development.” In fact, he noted, in his experience fast-tracked applications are those that have developed good biological and natural resource data. That way, conflict is reduced, development occurs in the less sensitive places, and money is saved. The “train wrecks” result when a process does not allow for understanding natural systems in the first place, like the ACR.

In responding to cross examination, Dr. Klemens took time to explain his view that his testimony is not about whether or not development should or can take place on the ACR site. It is very likely that development is compatible with areas on the site, he said. The “real issue involved in this hearing is the amount, intensity and lay-out of that development. That’s the key.”

How can the APA use the ACR experience to improve its project review? One way is to mimic the way its sister agency, DEC, as well as many town and county planning boards utilize the State Environmental Quality Review (SEQR) Act. After determining that a project may have one or more significant environmental impacts, a step known as a positive declaration of impact, the lead agency in SEQR must require an environmenal impact statement (EIS) of the developer. Project scoping invites the public to comment on the proposed topics to be covered by the EIS. “The purpose of scoping is to focus the EIS on the most relevant issues and potential impacts, including means to avoid or minimize those impacts; the lead agency may thereby ensure that the draft EIS will be a concise, accurate and complete (emphasis mine) document adequate for public review” (from: www.dec.ny.gov).

Think of the APA application process as a version of SEQR, and the APA’s review as a kind of EIS. Before deeming an application complete, the agency could invite the public to help APA undertake project scoping in order to ensure that an application actually and thoroughly answers key questions, and provides the information required for a comprehensive review of impacts. If that process were used, there might be more meaningful constituent participation with APA and fewer “train wrecks” like ACR, where so much time is spent at an APA hearing debating the paucity and reliability of information and data needed by the commissioners to reach a sound, post-hearing decision. In fact, I remember several APA commissioners suggesting this very reform of their own project review of large projects in 2008, following their approval of the FrontStreet application in North Creek. I have yet to see positive results from their suggestions.

Photo: Dr. Michael Klemens points to a map of ACR during his testimony at the public hearing last week.

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Dave Gibson, who writes about issues of wilderness, wild lands, public policy, and more, has been involved in Adirondack conservation for over 30 years as executive director of the Association for the Protection of the Adirondacks, executive director of Protect the Adirondacks and currently as managing partner with Adirondack Wild: Friends of the Forest PreserveDuring Dave's tenure at the Association, the organization completed the Center for the Forest Preserve including the Adirondack Research Library at Paul Schaefer’s home. The library has the finest Adirondack collection outside the Blue Line, specializing in Adirondack conservation and recreation history. Currently, Dave is managing partner in the nonprofit organization launched in 2010, Adirondack Wild: Friends of the Forest Preserve.




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