Friday, July 20, 2012

PROTECT Responds to Tupper Resort Lawsuit Critics

What follows is an essay sent to the media today by Protect the Adirondacks! regarding recent criticism over a lawsuit filed by the group and the Sierra Club against the Adirondack Park Agency over its approval of the 700-unit Adirondack Club & Resort project in Tupper Lake.  

For several months boosters of the Adirondack Club & Resort (ACR) project have criticized and even ridiculed the lawsuit brought by Protect the Adirondacks! and others to challenge the Adirondack Park Agency’s (APA) approval of the largest subdivision/development ever authorized in the Adirondack Park. They have criticized the lawsuit as frivolous in numerous public statements, lobbied the Cuomo Administration against the lawsuit, and even held a press conference in Albany with Senator Betty Little. The news media have provided ample coverage of these activities, while giving relatively little information about the substantive issues raised in the litigation (somewhat understandable, given the lengthy and complicated documents now before the court).

PROTECT and others have been faced with a barrage of criticism about supposedly bringing a “frivolous” lawsuit for purposes of “obstruction.” This is nonsense. In July-August issue of the Adirondack Explorer Bob Glennon penned an excellent piece about the merits of the PROTECT lawsuit. Jim LaValley, a Tupper Lake realtor and local activist, penned an accompanying piece where he not only made things up to support his case (somehow tourism is down in Tupper Lake and donations to the Wild Center have dropped off due to the lawsuit) but never even attempted to deal with the merits of the PROTECT case. PROTECT has posted a thorough rebuttal to Mr. LaValley’s piece.

PROTECT was an official party to the long public hearing. We brought in expert witnesses. We supplied testimony and cross-examined witnesses. We worked with a coalition of local Tupper Lake residents who opposed this project. We were fully engaged and were stunned at how the APA conducted the hearing and arrived at its decision.

So, consider for a moment, What if the shoe was on the other foot? What if the APA had denied the ACR project and in doing so had illegally relied on information outside the official hearing record? What if the APA had engaged in illegal ex parte communications with project opponents? What if it had ignored clear and specific provisions in its own regulations in issuing the denial, and made up new standards for its decision? Or, what if the APA had misinterpreted its laws and regulations all in favor of the project’s opponents?

Had this happened, one could imagine that ACR supporters would have been outraged. Quite likely, an appeal of that denial decision would have been filed in court, exactly where questions about governmental actions are intended to be heard and decided.

PROTECT and its co-petitioners sincerely believe that the APA acted improperly and wrongfully approved the ACR project, violating the Adirondack Park Agency Act and Agency regulations in a number of ways. This lawsuit deals with very important and serious issues facing the APA. See PROTECT’s original petition, amended petition, and Reply. These documents detail and substantiate our claims.

We believe that the APA illegally based its decision, in part, on information that was not part of the adjudicatory hearing record, specifically a document (dating from 1993!) which no party to the long hearing ever saw. Yet, this document was the basis for the APA’s conclusion that the developer had adequately evaluated wildlife impacts on the project site, contrary to sworn testimony by expert witnesses, including the APA’s own staff.

We also believe there were illegal ex parte communications between ACR representatives and senior APA staff during the Commissioners’ deliberations, just before their final approval decision. We have provided the court with evidence we obtained through a Freedom of Information request, after waiting over three months for the APA to produce the documents. These communications show unprecedented collaboration between ACR and several attorneys on the APA staff on both the content of the hearing staff’s final brief – which is supposed to articulate the independent, professional opinion of the staff engaged in project review and testimony – and the content of the APA’s final approval decision.

We believe that, in approving the project, the APA ignored specific provisions in the Adirondack Park Act that establish requirements for the development of Resource Management land. In response to our allegation that the project does not conform to the legal requirement for “substantial acreages or small clusters on carefully selected and well designed sites,” the APA is arguing – for the first time in its 40-year history – that these words are simply advisory and “guidelines” with no legal significance.

These are only several of the 29 major issues addressed in this litigation.

Recent court filings have provided an opportunity to substantiate allegations and fully detail matters of law. This has lead to reporting the fuller story (see here, here and here) rather than just the accusations of ACR boosters and supportive local politicians chiding PROTECT.

Yes, PROTECT’s lawsuit is about defending the natural resources of the Adirondack Park.

Yes, it’s about stopping a ruinous precedent that could be used to approve similar projects in Resource Management lands in dozens of other locations.

But, this lawsuit to appeal the ACR decision is also about ensuring good government, specifically, by holding accountable a public agency that does not engage in the honest and transparent administration of its regulatory authority and duties.

In short, there are serious and important issues to be decided, quite properly, by the reviewing court.

 

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The Adirondack Almanack publishes occasional guest essays from Adirondack residents, visitors, and those with a biding interest in the Adirondack Park.

Submissions should be directed to Almanack editor John Warren at adkalmanack@gmail.com.




41 Responses

  1. Mike S says:

    Excellent article and great rebuttal to Kool Aid drinker Jim Lavalley and his bogus claims. That been the ACR pattern from day one, never address any of the real issues or facts, just use name calling and intimidation to silence anyone not of their opinion.

  2. Jim LaValley says:

    It is unfortunate that you choose to characterize me as someone who makes things up, and for one of your readers to call me a “Kool Aid” drinking supporter. But that type of ridicule and criticism is the type of effort that has been clearly used by those opposed to the ACR, and is a distraction from the bigger issues. You also state that I was claiming in an Adirondack Explorer piece, “somehow tourism is down in Tupper Lake and donations to the Wild Center have dropped off due to the lawsuit.” In fact, what I wrote was that the approval of the ACR “… was expected to bring a higher volume of traffic to Tupper Lake this summer. More traffic translates into more entry fees paid and more donations made.”
    I continue to believe that the Article 78 suit is a calculated, and mean spirited move to not only prevent the ACR from happening, but for a very small group of extreme preservationists to further a philosophical position that is outside of the current rules and regulations of the Park, while fooling the public into believing that the Adirondack Park is in danger so that they will send money to their organization, and help pad their own coffers. It is the feeling of many throughout the North Country that the lawsuit is being used as a weapon and not as a genuine review of the merits.
    I appreciate and support the approach that the Adirondack Council has taken in this “Great Adirondack Debate.” As the strongest environmental organization in the Park, they recognized that the ACR project did not rise to the level of undue adverse impact under the current rules and regulation, and have instead chosen to build consensus with ALL stakeholders of the Adirondack Park, by looking at ways the regulations may need to be modified as the Park moves forward for the next 100 years.
    I also feel that it is time for our State elected representatives to look at the misuse of the Article 78 filings, and will look to encourage them to develop legislation that would allow for damages to be paid to the State Agency involved in the lawsuit should that agency prevail. And to further allow the opportunity for other organizations and individuals to file a counter suit against the plaintiffs based on the quantifiable losses realized from the misuse of filing an Article 78.

  3. dave says:

    Jim,

    A calculated, mean spirited move by extremists to con people out of money? I don’t care how many people in the North Country you think feel that way… it comes across as nothing more than toxic rhetoric wrapped in a tin foil hat.

    Is it not possible that the folks bringing this suit are doing so for the reasons they state? Is it not possible they simply believe that ex-parte violations took place and that the APA ignored or misinterpreted laws and regulations when approving the permit?

    This is what the legal system is for… resolving disagreements and making sure laws were followed, etc.

    So can’t it be that people simply disagree with the legality of the permit and are using the civic systems we have in place to address that disagreement?

  4. TLNative says:

    Residents of Tupper Lake and the Adirondacks support progress and this project. This seems to be an obviously hostile site which seeks to bait or provoke posters into divisive, unproductive, and sensational controversy. Thank you Jim for succinctly stating the facts of the matter with class and integrity. There is nothing further to be gained by rising to the bait presented.

  5. Mark says:

    It’s ironic that “Protect” called Jim LaValley an activist. That is usually a moniker used for environmentalists. Jim probably is an activist but he is much much more than that. Jim is the leader of a grass roots effort in Tupper Lake that has coalesced a community like never. Take it from someone who lives and works in Tupper. Very few people could have done what Jim has accomplished with local, county and state leaders. He knows the APA statutes much better than most and has laid out a strategy that rallied local support for the ACR, a project that met the guidelines for an APA permit. The 10 to 1 decision by the APA validaded that effort.

  6. Rick says:

    For too long as locals we’ve lived in this small town where projects and businesses have been turned away and dismissed for not being part of the Adirondack way. But at the heart of all this is a town like any other town in this country. This mountain project is as much for those who live in this town as those who visit. As true locals, those born and raised here, deserve to see Tupper Lake given the chance to become something special. We live here 365 days out of the year, and if you were to leave the fate of this project to the year round residents I guarantee the vote would pass in favor of the ACR. Protect and Sierra Club are deep pocketed bullies who want to keep areas like Tupper and the surrounding villages simplistic for their own means and purposes. We’re tired of having to travel all over for basic needs and with the approval of this project it gives the opportunity for new business, new jobs, and a new life for this town. Tupper Lake has been showing it’s age for years now, and it’s time for some modernization.

  7. Maggie says:

    i regret the tone this debate has taken but I feel Protect and those others suing the State of NY and costing the tax payers 1 to 2 million in court costs are sore losers pure and simple> Using their deep pockets to bully us all to submit to their will! Well it took the APA 8 yrs to listen to all their protests and expert witnesses and still found in favor of the ACR! Face it you guys lost go find another community to Bully!

  8. Pete Klein says:

    This is basically a “won’t see much of anything” development that will have some problems selling properties because they are not lake-front. With that said it will provide some jobs and cannot be considered destroying the “back-country” since it is too far up to be back.
    A mistake Protect is making in my view is bringing back Bob Glennon into the mix, one of the more problematic characters from the past.

  9. Tupper Lake Resident says:

    The people commenting here are living in a fantasy. This development will not move the local economy one bit. It’s designed for out of town rich people to benefit out of town rich people. We local residents will pay the ultimate cost with a scarred landscape and higher taxes.

    My beautiful town will suffer from what these corrupt politicians and the APA have done, and no screaming from from Jim LaValley and his groupies will change that.

    Thank you PROTECT.

  10. George says:

    Again we hear Lavalley avoiding addressing any of the issues in the lawsuit. It’s obvious he rallied all the other Kool Aid drinkers to jump on this site and post. The people in Tupper Lake were not born yesterday, most people know the developer has no money or investors and that they owe money all over the community, in Saranac Lake and beyond. They are years behind on their taxes, Lawson has the federal government chasing him for unpaid income tax for over $500,000. He and TL mayor have been up to the county recently trying to get another break on taxes again. If the lawsuit had never been filed the developer would be in the same position he is right now. This project might have had a chance if it was proposed back in the late 90’s but once the bubble burst they should have been smart enough to cut their losses and bail. Now when they fail they will just blame it on everyone else. Can’t wait for them to be gone but they have already created a divide in the town that will take a long time to heal if ever. If Lavalley had nothing to gain from this or was even a skier I’d have some respect for him. He is not doing this ARISE stuff out of the goodness of his heart thats for sure. The ski area was just the carrot for the town but selling off all the snowmaking equipment showed their true colors. Unfortunately for the skiers the area will never again operate as a fully functioning ski slope.

  11. TLNative says:

    I was not going to give George the decency to respond to such comments. But I could not stop myself from such ludicrous remarks. George, you are the true definition of a BULLY. Name caller, vicious attacker, avoiding the true issues, etc, Keep it up you are only proving what kind of group you truly are. Anything to drum up negative reaction! IF there is a division in TL it is because of individuals like yourself. Tell me what you have done to make TL a better place to live? Bullies like yourself only sit back pointing fingers and finding fault with the doers.

  12. loraxII says:

    Maggie said it was going to cost the taxpayers $1-$2 mil. WOW!!!! What did NY do? Hire former Blank Rome lawyers?

  13. BornNbredinTL says:

    TLNative, How dare you accuse Jim of succinctly stating facts. He has done nothing but tell the truth and werk real hard too get this progect up and runing.

  14. Snowshoe steve says:

    George, you are making some serious claims. Can you back them up?

  15. Jean says:

    Snowshoe, I can tell you where to go to find proof of a few of Georges’s claims. Go to the Broward County Florida website under public records, do some searching and you can pull up the actual tax liens against Mr Lawson. Call the Franklin County treasurers office and they will give you the exact amount the developers are behind on all their property and school taxes. Last check was well north of $100,000. It’s public information available to anyone who requests it. I encourage you to check it out.

    • Snowshoe steve says:

      That makes you wonder how could they possibly go forward with this project when they can’t even pay their taxes.

  16. Philly Jones says:

    The project has been approved by the APA which has a long history of protecting the Adirondack environment and rejecting many building efforts. The ACR should now be allowed to sink or swim on its own merits. Protect and Sierra lost and will lose again. They are only denying the inevitable. One definition of crazy is repeating the same thing over and over again and expecting different results. This is what Protect and Sierra are doing, they are nuts! And their lunacy should cost them with a steep penalty when this is over.

    • John Warren says:

      Philly Jones,

      The APA has an impact on just 20 percent of all development activities in the Adirondack Park. The rest, 80 percent, fall under the purview of the towns. Of the 20 percent, the APA has declined just .8% of the projects that have been brought before it since 1973. That is just .16 percent of all legal development activities since 1973.

      By no stretch of the imagination can you seriously claim that the APA has a long history of “rejecting many building efforts.”

      The exact opposite is true.

      • Paul says:

        John, I agree and I often make the same point. The legitimate question to ask is “do the regulations and the way the regulations are administered have any effect on the level of permits that are applied for”. Having grown up in the tri-lakes and having a place there now I see many many “projects” that are done without a permit, many which blatantly violate the APA act.

        One important change that I would recommend to the way the agency does business is to modernize things. You still have to fill out some relatively complicated forms (many of which an average person will have problems with) all this needs to be done in something like 4 or 5 paper copies! That can’t be good for the environment? They have all the PDF forms online why not make them electronically fill-able. It would take a few hours to make this change.

  17. Sue says:

    As a member of Protect I think the people upset with the lawsuit should direct some of their displeasure towards Paul Maroun. NCPRs’ Brian Mann interviewed him in January and he confirmed the ex parte violations which played a big part in the decision to file the suit. Thank You Paul.

  18. Twin Rivers says:

    The lawsuit will play out whether or not we all waste a lot of energy criticizing each other. The result is for the courts not the papers/blogs etc. to decide. The recent public attacks (bullying) of seasonal residents in the Tupper Lake Free Press (accusing them of being bullies ??)begs the question: how will residents of Tupper Lake welcome their new neighbors who inhabit (part-time) the 650 units at the ACR?? Why would any “outsider” reading the local paper want to invest in Tupper Lake? While we’re waiting for the developer to finish his application process and construction to begin(really?), let’s practice a little civility. It would be a welcome addition to all the positive efforts happening in town.

  19. Paul says:

    The comments here are very interesting. All parties are giving the suit too much press. Protect understands that. That is why they are blogging on it. You are all playing into their hands. The court doesn’t care what we think. 11 to 1 or whatever the vote was. The bar is excruciatingly high. Just let it play out without the court of public opinion.

  20. Tim says:

    A big question of those with Protect…..how much money is this making for you? How much money has been raised to date to hire back the staff that runs Protect. How much money is Bob Glennon charging per hour for his legal services in this lawsuit? At the end of the day the green is speaking………time to share some info with those you represent as well as the tax payers of NYS!
    PS …A bully says you’re going to do this or els…….enough said!

    Support ACR…….end Protect and groups that bully!!! Bye bye Bob!

    • Allison says:

      Bob Glennon is not the attorney for this case it is John Caffry. Glennon is a board member and spokesman, so he is probably not getting paid anything. Board positions at most NGOs are unpaid and maybe get travel expenses. Check your facts before you attack!

  21. Tim says:

    A big question of those with Protect…..how much money is this making for you? How much money has been raised to date to hire back the staff that runs Protect. How much money is Bob Glennon charging per hour for his legal services in this lawsuit? At the end of the day the green is speaking………time to share some info with those you represent as well as the tax payers of NYS!
    PS …A bully says you’re going to do this or else …..enough said!

    Support ACR…….end Protect and groups that bully!!! Bye bye Bob!

    • Allison says:

      PROTECT! is a special interest group same as ARISE. They are just at opposite sides of the issue. Why are you spreading such vitriol? Just let it play out in court. There is no other option anyway, both sides are dug in. I would recommend educating yourself on the facts as you are posting factually incorect information. Glennon isn’t even the attorney for the case!

  22. AdkBuddy says:

    The Protect defense of themselves sounds like a criminal who was caught red handed but still pleads not guilty.

  23. Greg says:

    AdkBuddy, what the heck? Care to try and explain what your post is about, it makes no sense at all.

  24. dave says:

    The insult “bully” sure gets thrown around a lot by those in favor of the ACR. I hope you realize that calling people names simply because they disagree with you is in fact very bully-like behavior.

    But then that fits my understanding of what the atmosphere in Tupper Lake has been like for some time now. If you happen to be a resident that disagrees with this project you are better off keeping your mouth shut or pretending just the opposite. Some residents are very up front about the level of intimidation and pressure that has been going on, one was quoted in a news report as saying something along the lines of, “Yes, I am for Big Tupper, but I sure as heck wouldn’t say so if I wasn’t”

    Letter’s to the editor have even suggested local establishments should not “serve” or do business with people who support this lawsuit.

    So who are the bullies? Some of you really need to find a mirror.

    • Greg says:

      dave, the atmosphere in Tupper Lake can be attributed mainly because of the owner of the Tupper Lake Free Press. Dan McClelland has absolutely no problem distorting facts, omitting facts or spreading out and out falsehoods about the benefits of the ACR. He will also use the same tactics to discredit anyone who expresses any doubts about those benefits or who even dare to ask legitimate questions. I’ve also spoken to several people(some even locals) who have told me they have submitted letters to the editor which he will not publish because he disagrees with them or thinks they show the project in a less than favorable light. He considers himself a leader in the community and feels free to publish whatever he wants,as he let us all know in his interview in the Explorer last year. For the record, he does not represent the majority in Tupper Lake, no matter how much he insists on it.

  25. I personally like Dan. He has an agenda. He is unabashed about it. No one reads the Tupper Lake Free Press…and it’s free!

    • AdkBuddy says:

      I like Dan McClelland too and people do read the Free Press as you can tell from the remarks made in reference to editorials and letters to the editor. Tupper Lake could use more people with his energy and conviction for what they believe in. As for my first comment, my point was that I think Protect will say and do anything to make their point, much like a guilty person would say or do anything to convince a judge or jury that they are not guilty. If I came across defensive I apologize. I also think Protect and Sierra Club are abusing the court system with a frivolous lawsuit, it’s no secret that is how these groups operate. They are hoping for death by a thousand cuts.

      • His website averages under 50 hits a day….

      • If more people in T.L. were as hard working as Dan, Paul and Jim, town would be as stong as it was in 1970! Sorry I don’t trust Foxman or Lawson. Bad track record. Based on their failure to pay taxes, the LA group, and their own attorney (yes they are behind on those bills also), I dont believe they have the capital to bring this development to fruition. If it looks like a duck, quacks like a duck, it’s probably…

  26. AdkBuddy says:

    What a bunch of nonsense here. My comment about Protect sounding like a criminal cuaght red handed and pleading not guilty is not hard to figure out. Protect is out for themselves and does not care one bit about Tupper Lake. They are a no growth at any cost organization. As for the Tupper Lake Free Press, the above comments are a real stretch. It is obvious that this site is mostly a preservationist/obstructionist site, with unwarranted attacks agains the ACR supporters.

  27. AdkBuddy, This is a site for any one with a Smart Phone or Wifi. I did not bash your post but I didn’t get it either. No reason to get defensive. I am actually a supporter of ACR and really wish protect did not file this lawsuit. I just am not a believer in the developer. I don’t think his projections are based in reality. I would love to see it and I think he should have the green light but I do understand the concern of those who think we will get a half built project that will cause more harm then good…and I like Dan very much.

  28. ADK buddy..So you are saying..what are you saying? Sorry still don’t get it. You are comparing the members of protect to convicts?

  29. Red says:

    AdkBuddy, If anyone looks like a criminal caught red handed in the lawsuit it is the developers attorney and the APA attorney. The foiled emails prove it.