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.