Tuesday, September 11, 2012

Legal Details On Tupper Resort Permit Conditions

Yesterday I wrote a post on the Adirondack Explorer website about the contention of Protect the Adirondacks and the Sierra Club that the permits for the Adirondack Club and Resort have expired. Consequently, I found myself in the middle of a dispute over arcane (to most) passages in the Adirondack Park Agency Act.

Contrary to conventional wisdom, the APA has not issued permits for the Tupper Lake project. Rather, the APA board approved the permits subject to certain conditions being fulfilled, such as a study of the project’s impact on amphibians.

Until the conditions are met, there are no permits, and so far the conditions have not been met.

Normally, applicants have six months to fulfill permit conditions. John Caffry, the attorney for the two environmental groups, says the deadline passed July 31. The APA insists it extended the deadline when it approved the project with conditions.

Caffry says the developers, Preserve Associates, cannot proceed unless they start the application process from scratch. Since the original process took more than seven years, you can imagine the outcry in Tupper Lake if this is the case. Many in Tupper see the resort as an economic savior.

So this is a serious matter. For those interested in the legal details, I am sharing the e-mails I received from Caffry and Keith McKeever, the APA’s spokesman. You can read through them and be your own judge.

The first is from McKeever after I asked him to respond to Caffry’s claim. I am putting the e-mails in italics to distinguish them from my comments. The highlights are in the original e-mails.

McKeever:

The ACR Project Order specifies a 10 year time period for the project sponsor to complete all requirements necessary to obtain permits and convey the first authorized lot.

see Project 2005-100 Findings and Order page 1 graph 2.”

You will find the relevant paragraph in the next e-mail, which I received from Caffry after I sent him McKeever’s e-mail. Caffry’s response is quite lengthy.

Caffry:

APA’s response is bad misreading of the APA Act.

The Order (copy attached) says on page 1:

“This project may not be undertaken or continued unless the project authorized herein is in existence within 10 years from the date of issuance of Agency Order 2005-100. The Agency will consider this project in existence when the first lot authorized herein has been conveyed.”

For a project to be “in existence”, it must meet the following criteria:

“APA Act Section 802(25). ‘In existence’ means (a) with respect to any land use or development, including any structure, that such use or development has been substantially commenced or completed, and (b) with respect to any subdivision or portion of a subdivision, that such subdivision or portion has been substantially commenced and that substantial expenditures have been made for structures or improvements directly related thereto.”

Before that can be done, a permit must be granted, and construction must have commenced. 

If a project does become “in existence”, then it is vested, a/k/a grandfathered.  However, if it is not in existence within 2 years, or in the case of ACR, within 10 years, then the permits will expire:

“APA Act Section 809(7)(c). If a project for which a permit has been granted, or a certificate issued, is not in existence within two years after the recording of such permit or certificate, unless the terms of the permit provides for a longer period of time, the project may not thereafter be undertaken or continued unless an application for a new permit therefor has been applied for and granted in the same manner and subject to all conditions governing the application for and granting of a permit as provided in this section. In determining whether to provide a longer period of time by when the project must be in existence, the agency shall give due consideration to the potential of the land related to the project to remain suitable for the use allowed by the permit and to the economic considerations attending the project.”

The APA’s Order of January 31, 2012 did address this situation, although it did not do so correctly, and this is the Thirtieth Cause of Action of the Article 78 case.  Regardless, that is not the situation which our recent letter to APA was addressing.  Section 809(7)(c) applies only to permits, not to approval subject to conditions prior to the issuance of a permit.  No permits have been issued yet, so 809(7)(c) is completely inapplicable.

The APA’s January 31, 2012 Order did not grant any of the 14 permits.  It allowed them to be granted upon satisfaction of certain conditions, such as the amphibian studies, updated plans for certain parts of the project, etc.  So far, the conditions have not been satisfied, and the permits have not been issued.  At this point in the process, the applicable section of the law says:

“APA Act Section 809(5). Notice of an agency decision shall be given by mail to those entitled to individual notice of application under subdivision two and notice of hearing under subdivision three, if a hearing is held. If the decision is approval, the agency shall within ten days of issuance of its notification of approval grant a permit to the project sponsor to undertake the project. If the decision is approval subject to conditions, the agency shall grant a permit only upon satisfactory fulfillment of such conditions. Approval subject to conditions shall expire six months from the date of such approval, or such longer time as is specified in the notification or approval, unless a permit has been granted. An agency permit shall serve as authorization for the project sponsor to undertake the project in accordance with the terms and conditions thereof.”

Section 809(7)(c) does not yet come into play because no permits have been issued and no construction has commenced.  The section that does apply now is 809(5)(c).

APA’s Order did not address the “satisfactory fulfillment of such conditions” issue under Section 809(5) and did not give ACR an extended period of time to meet that requirement.  Now that the Order has expired, it is too late for APA to do so. 

Satisfactory fulfillment of the Order’s conditions, and issuance of one or more permits, were necessary precursors to achieving “in existence” status.  The Order did address the “in existence” issue under Section 809(7)(c), and gave ACR an extended period of time to meet that requirement.  However, because the necessary precursor of permit issuance was not satisfied, the “in existence” issue is now moot.

Afterward, McKeever stood his ground in a phone interview. When I forwarded Caffry’s e-mail, I received the following reply.

McKeever:

Section 809 5 does apply. And the agency specified a longer time period (10 Years) in the approval. See underlined.

“APA Act Section 809(5). Notice of an agency decision shall be given by mail to those entitled to individual notice of application under subdivision two and notice of hearing under subdivision three, if a hearing is held. If the decision is approval, the agency shall within ten days of issuance of its notification of approval grant a permit to the project sponsor to undertake the project. If the decision is approval subject to conditions, the agency shall grant a permit only upon satisfactory fulfillment of such conditions. Approval subject to conditions shall expire six months from the date of such approval, or such longer time as is specified in the notification or approval, unless a permit has been granted. An agency permit shall serve as authorization for the project sponsor to undertake the project in accordance with the terms and conditions thereof.”

Thus, McKeever says the developers have ten years to fulfill the conditions. Finally, I asked Caffry to reply to McKeever’s second reply.

Caffry:

 He is wrong. By the express wording of the quoted paragraph of the Order, the 10 years only applies to the “in existence” issue.  It does not apply to the conditional approval issue.

This is how APA has operated for the last several years.  Rather than do their job and enforce the APA Act, in their zeal to reach a pre-determined result, they make mistakes, and then have to backfill to try to cover over their mistakes. 

Let us know your verdict.

Photo by Carl Heilman II: ACR site near Big Tupper Ski Area in Tupper Lake.

 

 

 

 

 

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Phil Brown is the former Editor of 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.




39 Responses

  1. Dan says:

    It sounds as though they overstepped their bounds, and ignored the law!!

    I’m all for the APA, and the generally reasonable protection duties they perform, but the ADK park is to be protected. Clearing enormous areas for development seems to be outside of the ideals of “Forever Wild”. There are enough places inside of the hamlet limits of the various towns for development, or re-development. Work on those, and don’t destroy another pristine area.

    • Snowshoe steve says:

      “Pristine” might be a stretch for much of the project lands. I hear you though.

    • Paul says:

      Dan, “Forever Wild” is an ideal that applies to publicly held lands withing the park it has nothing to do with private land within the park.

    • Paul says:

      Dan, your comment is well liked but I think you should take a look at the section of the APA act in question, 809. It seems that the law has not been “ignored” as you say.

      Now that I have had a chance to look at it it seems clear that according to the section:

      1. If your application is approved by the agency they have 10 days to issue a permit.

      2. If your application is approved with conditions (as in the case of ACR) once you meet those conditions (and inform the agency) they have 6 months to review the case (make sure you met the conditions) and grant a permit.

      The applicant has 10 years to get this done. If they don’t then they are back to square one it isn’t 6 months. The clause is not well written but still clear. Not sure what all this is about but it has gotten folks all worked up again for sure.

      • Jimmy says:

        Purdy clear you ain’t no lawyer, Paul. Read Caffreys excellent explanation.

        • Paul says:

          Certainly I am not. I assume the attorney generals office that advises the APA has a few.

        • Paul says:

          I am not a lawyer for sure. But the attorney general’s office that advises the APA has a few. Sometimes lawyers tell you what you want to hear and then let the court sort it out. That is how they get paid.

  2. Laura S. says:

    Thank you for keeping us abreast of this case. It appears that the problem is that there is noone at APA any longer who is capable of interpreting law & their own regs. I am currently dealing with a situation where they have incorrectly interpreted the regs. The agency has been in a state of dysfunction for a number of years now & has become an ineffective agency to the detriment of the Park! It seems that the governor needs to step in & clean house from the top down! We have some really good people at APA that are being severely hampered by this from doing their jobs. It is time to take serious action to correct this situation!

  3. Snowshoe steve says:

    1- Thank God I am not an attorney!
    2- The APA is a horrible disfunctional agency. Close it down and start over!
    3- No matter who is correct, 10 years seems like a rediculous amount of time to meet the conditions for issuance of a permit.
    4- Sorry Tupper Lake. Sorry Environment. The Agency and the act are to blame here. Developers and Environmental groups are acting in their own personal best interests. The Agency and act has let all interested parties down.

  4. TiSentinel65 says:

    Further proof of what a hatchet job the APA act, and the Freshwater wetlands act are. The environmental groups could actually have legal standing in this case. It is sad it takes years and years before anything can actually be started. This hits at why we can’t get anything done here. Laws need to be written with clarity so we do not travel the road of endless litigation. I challenge people to read both of these acts from begining to end and then try to determine what is legal and what is not.Anybody could arrive at a completely different interpretation when reading these acts as written. When the people who work with these things every day can’t get it right, what are the odds the average joe will. Start from scratch and get it right from the get go with a bottom up approach, with feedback from the residents of the park, who actally are most effected by these rules. The top down Rockefeller style approach with the environmental groups holding sway is not working.

  5. Pete Klein says:

    What this is proof of is that some so called environmentalist like to throw a temper tantrum when they lose.

  6. Mick says:

    Ti,

    Laws are ambiguous and vague for a reason…

    A bad reason.

    • julius parleaius says:

      Your comment makes the conspiracy theorist in me wonder. Is this a grand scheme of the act framers or current staffers…That the legalize is in idecipherable to the point that parties can argue in court
      ad nauseum? That will always benefit the environmental groups as the developer is trying to make money. This way the govt isn’t to blame for the devlopment faltering. The fact that the agency is trying to push this through, at least in the media, is evidence itself. hmmmm…

  7. Phil Brown says:

    It’s interesting to note that McKeever and Caffry both highlight the same passage in 890 5(c). The question is whether this language can be applied to the ACR situation.

    • Paul says:

      Phil, You mean 809.

    • Paul says:

      I think these time lines are mainly designed to make sure that an applicant is given a permit in a timely fashion. For example once they are granted a permit (w/o conditions) the agency has 10 days to get it to them. The “approval” that is defined (and relevant here) is the “approval” once the applicant claims to have met the conditions. In the case of the ACR project the agency then has 6 months from when the applicant has claimed to have met the conditions to review the case and make sure the conditions have been met.

      This sections should have been written more clearly but I think the intent seems pretty clear.

  8. Don Dew Jr says:

    Phil, Will the parties to the APA adjudicatory hearing be allowed to comment (as part of the record) on Caffreys latest attempt to kill the project. This action by Caffrey reminds me of the Adjudicatory Hearing where most of his motions were denied by the Administrative Law Judge. This also looks like an attempt to exclude the parties from participating. (something he claims in the Article 78)

    • julius parleaius says:

      What hearing were listening to? Your statement that “most of his motions were denied…” is not correct. You don’t have to agree with him but try taking a factual route as evidence when trying to discredit or to disagree with them. Making an erroneous statement like that just makes you sound like an idiot. Yes I know who you are…lets hear it….

  9. Paul says:

    If you were one who thought that getting a large development project approved in the Adirondacks was the same as it is just about anywhere. This should tell you something.

  10. Paul says:

    It sounds as if these groups are even more anxious than some in Tupper Lake to get this project under way. Their argument here is that things have not been progressing quickly enough? But seriously.

    Will there be a second lawsuit here? I suppose they will wait for the supreme court to weigh in on the first one. If they prevail there, problem solved. If not they will want to send that to the appellate court and then maybe file a second lawsuit based on this new complaint. Either way the developers are going to have some very hefty legal bills to contend with.

    You gotta give it to these guys, they are persistent.

  11. Barry says:

    After man has been eradicated from this Earth it will heal itself as if man had never been on this Planet.

  12. Don Dew Jr says:

    Julious, “You know who I am.” Thats good because I put my name to my comments. Another point please dont take my word on “most of his motions being denied” as fact or fiction the record speaks for itself.

  13. Phil Brown says:

    Don, Caffry is awaiting an official reply from the APA. No decisions have been made on what further steps to take.

    • Paul says:

      It sounds as if the official reply will be similar to the unofficial one. Then you would certainly want to wait for the decision from the court that is pending before taking any further steps. Not sure why the played this card already? Why not just hold it till you have a decision from the court (or the appellate court if the plaintiffs lose this round)?

      I guess you could hit the developers with another lawsuit now if the strategy is to make it as expensive as possible in the near term.

  14. Don Dew Jr says:

    Thanks Phil, I was just wondering if the APA would be seeking comments from the Adjudicatory hearing parties before giving Caffry there decision, realizing of course the official hearing is over.

    • Phil Brown says:

      I can’t answer that one.

    • Paul says:

      Isn’t that hearing done? The APA has a lot “flexibility” in how it can administer its rules and regulations. That is a point that has been argued by folks that have been opposed to some of the agencies actions for years, now those that are normally supporting the agency are beginning to understand that this is how the law was designed. My guess is that the Supreme court judge will also see that when he or she rules on the issues in a few months. There is reams and reams of precedent that supports that. I seriously doubt that a judge will overturn this decision by the agency. If they do then any case where RM lands have been used for structures where they were less dense than one per 42 acres will be in jeopardy. This will include those cases where the agency granted permits in an effort to keep buildings more clustered (Brandeth Park is one example). All the deed restrictions imposed by those permits will also go out the window. I doubt that environmental groups want to see that happen. That is one reason why I think this court action is ill advised.

      On the ACR project, even if the court rules in the plaintiffs favor the “cure” for that will not be to totally deny the permit but to spread out the Great Camp lots to more closely adhere with the regulations. The developers have plenty of land to make that happen. There would be other changes as well.

  15. Bill says:

    Don, Since the APA didn’t seek comments from the parties when they were negotiating with Tom U over what terms and conditions they were to put in the permit, I doubt they will be seeking comments now.

  16. Don Dew Jr says:

    Bill, Not sure you are completely correct. As a party to this hearing we all were provided with a copy of the draft permit with conditions to comment on as part of the hearing record. I do agree with you that I doubt they will be seeking additional comments now as they probably are not required to.

  17. Bill says:

    Don, get a clue, I’m refering to the alleged improper ex parte communications that took place after the hearing was closed. The ones where the developers attorney(Tommy U) was dictating terms and conditions to Banta, Van Cott and the Executive Staff when the Commissioners were deliberating in Nov, Dec and January.

    • Paul says:

      “Alleged” Let’s wait and see what the court thinks. Don is just talking about what he actually knows is true.

  18. Snowshoe steve says:

    LMAO that town and village seeking grant to extend sewer lines for a development with poor financials, embattled in court, has no permit, has been given 10 years just to meet conditions for issuance, No PILOT in sight, the main developer barely survived the savings and loan scandal, the other can’t even pay his taxes….Yup lets all put 2.8 million towards this project!

    • Paul says:

      Yes it appears the town is not interested in losing in the war of attrition that has been waged on this project.

      From the ADE:

      “They said installing new sewer lines to the proposed Sewer District 27 would make it possible to get rid of on-site sewer and a wastewater treatment plant planned for the ACR, so it should eliminate some of the concerns environmentalists have brought up about the proposed development. One of the major concerns has been the plan to pump wastewater effluent into Cranberry Pond and the surrounding area.”

      Sounds like a good idea.

  19. Pat says:

    Snowshoe, Tupper Lake Town and Village officials have been totally conned by the ACR developers. They have been promised and promised and promised nirvana. Just wait until we get the permit, Millions are just waiting to be invested, just wait until the lawsuit is over, Millions will come flowing in. Disregard the fact that our main man has Fed Tax liens against anything he owns for over a half Million, disregard the non payment of our Property and School taxes for several yrs for over $100000. Disregard the fact we never paid the Village of Tupper Lake $13000. for a waterline upgrade we promised to pay for 6 yrs ago. Disregard the main investors electric service being removed from his home in April 2010 for non payment of his Electric bills. Disregard the fact that the big developer owes the local building supply company tens of thousands and they have cut him off. Disregard the fact the main developer has just listed his house for sale and seems to be getting ready to skip town. Its like OZ, Pay no attention to the man behind the curtain!

    • Paul says:

      If he skips town before anything happens that will solve the problem right?

      The only folks that made out were the lawyers representing all the different arguing parties. So is life!

  20. owl lady says:

    please ..please…please let something happen in Tupper Lake that will bring jobs and people and LIFE back to Tupper. In 49 years i’ve watched it slowly DIE. We need this Resort!