Tuesday, January 24, 2012

Dave Gibson: 10 Votes Gave Away the Park

The outcome to approve the Adirondack Club and Resort was not a surprise. The ten to one margin of the vote was a surprise. Nor was it surprising that Commissioner Richard Booth assembled the reasoned arguments why this massive, speculative real estate subdivision should be denied. He has an excellent mind, an articulate voice, and a logician’s ability to arrive at the kernel of a matter in relatively few words, readily dispensing with the “dead wood” of an argument to arrive at the heartwood at its core.

The vote went in alphabetical order, so Mr. Booth went first. Here is what he forcefully and passionately argued, in ascending order of importance:

1. Independent experts testified at the hearing that the project sponsor’s sales projections and real estate valuation estimates were completely unrealistic. Since it is the Agency’s job to take into consideration the possible economic and community benefits of an application in judging whether or not there are undue adverse impacts to the Park’s sensitive ecological and physical resources, the failure of the applicant to come up with even remotely reliable quantitative figures (it was shown in the hearing that the applicant derived the projections himself without aid of a professional appraiser or market analyst), means that the Agency must in rendering its judgment, as a matter of the law, largely discount the claims of large or even significant economic benefit;

2. Despite numerous requests to do so by the Agency, the project sponsor failed to conduct a wildlife inventory and assessment, something that is rather routinely done for smaller development projects elsewhere in the state. This failure, in and of itself, is not the central problem. The central problem is that such an inventory and assessment is crucial to judge whether the proposed project design poses adverse impacts to wildlife habitats and migratory pathways. If you don’t know what lives on the site, and where their habitats are, how can you determine the impacts? That is the “big hole” in the application that “never got filled.” This hole can not be corrected with project conditions, he said. To emphasize his argument, he reminded his colleagues that a single hearing expert (Dr. Michael Klemens) who was never invited to tour the property found in a matter of one day and night in a very small section of the project area more species than the project sponsor identified in seven years;

3. Most importantly, the project is not consistent with the description, purposes, policies and objectives of Resource Management land because it spreads houses across thousands of forested acres contrary to the letter and intent of the law. The ecological integrity of Resource Management, and the paramount importance of protecting its delicate biological and physical resources under the APA Act, is violated. A yes vote would send a negative message to other applicants that this type of development on Resource Management is acceptable. Furthermore, given the acreage involved there are many alternative ways to design the project which would avoid this violation, alternatives that the applicant failed to analyze.

The other Agency members followed, many either agreeing with Mr. Booth or sympathizing with his arguments, but concluding that “the process had worked,” the numerous project conditions would adequately protect natural resources, while a permit would lead to a better future for Tupper Lake. “It’s been an education for me,” said Mr. Lussi. “The sponsor has been receptive to some of the sensitive issues, and removed a number of upland developments. The plan is thoughtfully done.” Ms. McCormick of the State’s Economic Development Corporation gushed: “I am happy to vote yes. We’ve protected the land, and achieved tremendous economic benefit.” This is all in line with Governor Cuomo’s program for job growth, she noted. Mr. Wray was the last vote, and he “agonized” over his decision, nodded to Mr. Booth’s arguments, then concluded that “notwithstanding my discomfort, we can justify this.” How he justified it remained unsaid.

Mr. Booth’s logical arguments failed to carry the day because other members largely ignored the hearing evidence (upon which their decision was to rely on) and the law in order to fall into line with one or more of the following leaps of faith:

a. the project sponsor’s assertions of great economic benefit, hearing evidence to the contrary notwithstanding;

b. the feeling that our staff are the experts, we trust them and they say this is OK. Staff concluded that numerous project conditions would satisfactorily protect the park’s delicate physical and biological resources, and that this is an “ever so carefully regulated design” (to quote APA Chair Ulrich);

c. this development seems to fall into line with Governor Cuomo’s economic development program, the APA law and hearing evidence notwithstanding.

There is a large cultural sympathy for Tupper Lake that must also be acknowledged as a factor. “We have to do something for Tupper” is an undercurrent from many in that town and beyond it which, while hardly constituting evidence justifying ten votes in favor, does play with an Agency that craves public acclaim. Tupper Lake does need and deserve plenty of help to develop as a community, I readily agree. However, in this case the fact that “doing something for Tupper” may actually mean taking the same speculative gamble with the community’s resources, services and taxpayers that Mr. Foxman and Mr. Lawson and the project boosters are taking did not seem to overly concern these members.

A critical factor in the outcome of the vote, in my opinion, is that the APA staff performed badly (I could use a stronger word) in their summaries of the adjudicatory hearing evidence for the Agency’s members. On numerous occasions the staff downplayed what they considered “bad” evidence, and emphasized what they saw as evidence favoring the project. For instance, bad evidence that the project posed undue risk to the area’s natural resources from Drs. Glennon, Kretser and Klemens, was often given a sentence on a summary slide, and then members were invited to read the relevant pages of testimony for more. Good evidence, for example staff conclusions that deed covenants adequately constituted project alternatives and satisfactory resource protection, were spelled out in their entirety on a slide.

A particularly egregious example is that in the final project permit order APA staff chose to illuminate a positive April, 2007 letter from the Franklin County Industrial Development Agency “taking official action toward the issuance of PILOT bonds on behalf of the Project Sponsor finding that the Project constitutes an appropriate ‘project’ within the New York State Industrial Development Agency Act.” The staff ignored “bad” evidence in the form of an FCIDA communication dated Feb 1, 2011 which so clearly makes its 2007 letter irrelevant and dated: “It has been four years since ACR’s application to the IDA in February 2007, and nearly that long since an inducement resolution was passed in April, 2007. The board that approved the project has since turned over four times and the project has changed….we have not determined the legal basis, precedent or workability of it (the PILOT) (emphasis mine)…it is premature for the IDA to provide testimony or opinion in the case of the ACR.” Why wasn’t this 2011 letter quoted in the final project order?

Another badly flawed project “finding” that the staff reached is this: “Site investigations to evaluate wildlife and wildlife habitat on the project site followed standard Agency guidelines and procedures.” This statement is utterly at variance with the hearing evidence. APA’s witnesses Sengenberger and Spada, along with outside experts, all found that the applicant failed to do what the Agency asked it to do, repeatedly, and that it was the applicant’s burden and responsibility to conduct the wildlife studies, not APA’s. At the last moment in the Agency’s deliberations this week, staff distributed to the members a 1993 APA staff memorandum titled “Guidelines for Biological Survey” which had not been disclosed during the hearing. Staff described the memorandum as supporting their finding that standard Agency guidelines and procedures with respect to wildlife and habitat had been performed. In fact, a close reading of this memorandum and its tables satisfies me that the Adirondack Club and Resort easily reached the threshold required for a comprehensive, quantitative biological survey – precisely the opposite conclusion reached by the staff. Agency members did not have adequate time to study this memo, and made no objection to the way staff characterized it.

I conclude:

1. The hearing’s evidence, upon which the members were legally and solely bound to consult in rendering their decision, actually played a relatively insignificant role in that decision. Witness Mr. Lussi’s closing comment that the land has been heavily logged, and is therefore not pristine – seemingly deaf to abundant hearing evidence, even from the Agency’s staff, that a history of logging in no way compromises the ecological integrity and functioning of this Adirondack landscape, while housing development can and does.

2. The facts emerging from the hearing that the applicants failed to carry their burden of proof on wildlife, alternatives and fiscal and economic impacts, and that this did not sufficiently bother more of the members calls into question how and why this Agency performs adjudicatory hearings;

3. The staff was not impartial in the way they chose to present the evidence, and in the evidence they chose to emphasize for the members;

4. Too many staff findings of fact and conclusions of law were not faithful to the hearing evidence and official record;

5. Many if not all of the “significant changes” to the original site plan (applauded by the members as something new) had been decided four years ago.

6. The Agency’s press release issued shortly after the vote was self-congratulatory to an extreme, cited all of the economic and employment benefits shown in the hearing to be highly exaggerated (Mr. Lussi even lectured the applicant about these exaggerations), and could have been written by the applicant himself.

7. There are some good project conditions, such as the after-the-fact wildlife studies and the independent environmental monitors, but these are wholly inadequate to correct such a deficient and defective project application.

I have interacted with the APA for twenty-five years. I readily admit to a point of view. I also have had and expressed great respect for the Agency and its staff over the years, and stood up for the Agency’s mission, budget, policies and staffing levels on many occasions. My final conclusions are, therefore, hard ones for me to express: they are that the Agency voted to give away the park, failed in its duty, failed the public’s confidence, and deserves to be chastised and investigated in the way it is currently performing its statutory mission to protect the “unique scenic, aesthetic, wildlife, recreational, open space, historic, ecological and natural resources of the Adirondack Park” (Sect. 801, APA Act).

Photo: From the summit of Mt. Morris and Big Tupper Ski Area looking down at the ACR site, Tupper Lake in the distance.

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David Gibson

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 Preserve

During 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.




17 Responses

  1. Heather E says:

    Well said and bravo for putting it in writing.

  2. Dan Gibson says:

    It is a sad day. I would love to understand how 10 people who’s jobs are to understand the rules and evaluate the evidence, to protect our park, voted as they did. Did they shirk their duty? Were they unduly influenced? Or if they understood the rules and evaluated the evidence, how did they each justify a “Yes” vote? David thank you for your honest reporting. Dan Gibson (no relation, just an appreciative reader)

  3. loradk says:

    Thanks for expressing so well how many of us view the results and the process which lead to this unfounded decision. APA Commissioners, APA staff, and government officials need to read and contemplate this wonderful article.

  4. Paul says:

    “a history of logging in no way compromises the ecological integrity and functioning of this Adirondack landscape”

    Dave, this is contrary to what many environmentalists seems to believe. Do you really agree with this statement?

    In the very least all of this slamming of the APA should move environmentalists and local government groups closer together.

    If the law was followed and it looks by almost all counts (save a few here) that it was it leads to at least one conclusion.

    The bottom line is that these groups need to figure out how to get around one big problem that they now have. When the APA act was drafted and made into law environmental groups strongly supported the act and the restrictions that it placed on private land development in the park. Now they feel that those restrictions are not restrictive enough.

  5. Mick says:

    What could possibly be a better plan for smart growth in the Adirondacks?

    Dave, let’s hear some suggestions.

  6. Paul says:

    Mick, Dave’s group did make a number of suggested alternatives for this project. I think the bottom line there was that this was a “legal” project even if not what some wanted to see.

  7. Ellen Rathbone says:

    HM. Very interesting. Thank you for writing such a succinct piece. I’ve been following this development since its beginning, even now that I no longer live in NY, and will be interested to see how it plays out in the long run.

  8. rideadk says:

    Dave, well written,logical as usual. It is truly beyond comprehension the requirement that the APA held the Adjudicatory Hearing on this project. What a waste of time developing the record since it is obvious the commissioners didn’t read much of it. Even worse is the way the executive staff cherry picked certain favorable aspects(taken out of context) and fed it to the commissioners. It was equally amazing to listen to the commissioners statements that it was not the APAs job to consider the fiscal aspects of the project. Why did they bother to have it included in the Hearing as issues 5 & 6? Then when the final vote was taken almost every commissioner said they were voting yes partly because of the “economic” benefits of the project. WTF? The record clearly showed the economic benefits were dubious at best and more likely non existent. The APA is seriously broken and at this point meaningless.

  9. Dan Crane says:

    This is an unfortunate development (pun intended), but not completely surprising. From the very beginning this project appeared to be a done deal.

    One thing concerns me with regard to all the discussion of a wildlife inventory. Why just a wildlife inventory? Why wouldn’t there be a plant inventory as well? It seems as if plants, fungi, and all the other organisms are continually being discriminated against in these matters.

  10. Will Doolittle says:

    Well, I guess no one need try to protect the Adirondack Park any longer because it’s been “given away.”

  11. Paul says:

    I think Dave’s reaction here is maybe a little bit melodramatic based on the title.

    If this has “given away the park” then something must be done. The only remaining option is litigation.

    The problem is that the APA act always leaves that door open. The legal strategy based on these comments might be to argue that the staff in some way misled the board. But still at the end of the day you have to determine if there is “undue impact” totally a judgment call. All development even the smallest and most well designed project could have meet the definition just like a larger (yet still within the confines and precedent of the agency) could have not.

    I think you can bash the law but I think that bashing the folks who did the work is just sour grapes in this case.

  12. Paul says:

    “From the very beginning this project appeared to be a done deal.”

    Dan, what makes you say that?

  13. Big Burly says:

    a lot of really dedicated folks spent years and a lot of money to deliver a balanced decision.

    A very large number of us privileged to live within the blue line think this is the right decision.

    It gives hope that our kids will be able to continue to live here too and raise their kids in a comfortable and dignified way.

    Thank you APA staff and commissioners. Thank you investors for your patience and vision.

  14. Dan Crane says:

    Paul,

    My statement was entirely based on my rather casual following of this issue and my own opinion; I have no inside information proving this though. Tupper Lake is a pretty depressed area and is in desperate need of something hopeful in their future. This situation set the stage for the project’s eventual approval.

    When it comes to choosing between a probable fantasy promising economic salvation and preserving some forest land and its furry and feathered denizens, I think we know which one wins more times than not.

    I just hope this project doesn’t end up to be the pipedream, although I suspect it might.

  15. Paul says:

    “This situation set the stage for the project’s eventual approval.”

    The evidence presented related to financial impacts (even if correct which appears unlikely) was not very compelling. Several commissioners seemed to understand that. Perhaps they felt strong pressure to approve, but they should have also felt strong pressure to NOT approve a project that would have negative economic impacts for the same reasons.

    The bottom line is that there were many pretty savvy and smart people involved and there is a good chance that they actually knew what they were doing and did a good job despite the pressure. Dave seems to think that isn’t the case but he is clearly in the minority.

    But despite the pressure I think the agency has to follow its regulations and they had little choice but to approve the project.

  16. Dave Gibson says:

    I greatly appreciate all these comments, including Big Burly’s response, which I respect. A lot of good folk have reason to applaud the decision and to have felt thoroughly included in the Agency’s deliberations. We stand strongly by our point of view, but thank you all for the lack of vitriol here.

  17. Paul says:

    Dave if you still strongly feel that this outcome has somehow “given away the park” then it seems like litigation is really your only next move. I guess the real question to consider is do you think that the process failed in this case or do you think that the restrictions need to be changes so that something like NO single family dwelling should be allowed to be built on RM lands under any circumstances?

    Even those of us that think these regulations are sufficient (or perhaps even too prohibitive) can always use more clarity in the rules. With some clarification much of the permitting process could also be done away with.

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