In so far as a judicial ruling expected later this year, nothing can be determined by the questions the judges posed this week regarding the Adirondack Club and Resort, that precedent-setting subdivision near Tupper Lake still being litigated. But the questions raised by several of the judges on the Appellate Court in Albany (and answers given) were interesting because they were unexpected (by me, anyway) and largely unrelated to the big, controversial issues surrounding the spreading out of the Great Camps, the use of the Resource Management lands for exurban sprawl development that is neither “on substantial acreages or in small clusters on carefully selected and well designed sites” (quoting the APA Act), or about the lack of substantive information in the hearing record about the project’s financing, marketing, sales and tax projections.
No, most of the judges’ questions were focused on the use of the State Boat Launch on Tupper Lake by buyers of the Club and Resort and on the future of Cranberry Pond, the proposed source of the resort’s snowmaking (assuming the resort’s principals ever gain the wherewithal to modernize Big Tupper ski center at all).
Regarding the State Boat Launch, one judge was dogged in his questioning. He felt the hearing record was clear that once the resort was fully built out ACR residents would dominate the State Boat Launch on peak summer weekends and preempt the public from its use.
He felt this way because the ACR expert witnesses themselves agreed under cross examination in the summer of 2011 that the capacity of the boat launch was 48 boats launched per day, and that at full built out ACR clients could utilize up to 47 of those launchings on peak weekends, leaving the public with one. Even if ACR clients used only half their slots, they could still dominate the use of the boat launch on certain days and during windy conditions on the lake. Lawyers for the ACR and for the state tried to argue that public use of the boat launch today is very light, that the numbers are speculative, that not to worry, it will take fifteen years before the project is built out, that DEC never raised objections to the proposed use of the launch (the Boat Launch is part of the publicly owned Forest Preserve).
This particular judge did not seem to be buying any of that. He kept asking, won’t 47 out of 48 boat launches effectively preclude the public from using the public launch? The ACR’s attorney, Mr. Ulasewicz, had to admit that the judge was not wrong about the numbers, that somehow those numbers were expertly derived and entered into the hearing record (thanks to ACR’s own witness).
The same or another judge then interrupted the lawyer for the APA, Ms. Taylor, who works for the Attorney General’s Office, “back to the Boat Launch. Would its use by ACR clients violate the Constitution?” Now, that’s an interesting question, I said to myself. The Constitution’s Article XIV, Section 1 states that the lands of the state, which this launch is part of, cannot be leased, sold or exchanged or be taken by any corporation, public or private. I presumed what the judge was getting at is that if the resort’s owners dominate the boat launch to a great extent it could be viewed as an unconstitutional corporate or commercial use of Forest Preserve. The Attorney General’s representative immediately denied any such thing. “This is not a commercial use,” she said. “Why not?” the judge asked. Mr. Ulasewicz argued it was not, that ACR clients are just members of the public who have the same right to use the launch as anyone else. Somewhere in this colloquy, one judge asked the Attorney General’s representative if each ACR townhouse would cost half a million dollars. She did not know, and referred the judge to Mr. Ulasewicz.
Another judge opened the questioning on Cranberry Pond by asking how deep it was. The AG representative and Mr. Ulasewicz said it ranged from 3-8 feet deep. The judge asked about impacts to this shallow body of water due to water withdrawals for snowmaking. Was there anything in the record about this? The AG representative spoke of minimal drawdown of Cranberry Pond when Big Tupper Ski Center was last in operation (1996), that the pond is shown to recharge quickly, and the permitted five year study period and a two year window whereby if the APA found impacts occurring it could stop the withdrawals after two years of operation. Thus, any impacts would have time to be adequately mitigated. The judge asked about the alternative source of water, Tupper Lake, and ACR and State lawyers said that the record showed that alternative would be too expensive.
Previously, Mr. Caffry for the litigants had argued that the record was replete with expert testimony about undue adverse impacts that could occur to Cranberry Pond from the resort and that the APA Act does not authorize a balancing of costs versus impacts on a project by project basis, and that Tupper Lake was an admitted adequate and plentiful source of water for the project that would avoid incurring the impacts in the hearing record.
A judge then specifically raised the issues of amphibian studies required at Cranberry Pond under the APA permit. What are they? The lawyers for the ACR and State said that these after the fact studies would help fine tune the mitigation measures there, although (arguing illogically) APA had all the biological information it needed in January 2012 to render a determination of no undue adverse impacts.
The judge interrupted several times to ask what was in the hearing record about the impacts of water withdrawals. I then heard a judge ask if there was something wrong with not knowing what the impacts would be (of water withdrawals from Cranberry Pond) and yet still be in a position to render a decision of no undue adverse impact.
Given Adirondack Wild’s role in the hearing, I found this question to be one of the most telling moments of the entire oral argument. As Dr. Michael Klemens, our expert witness pointed out repeatedly during the hearing, APA should not permit after the fact studies of the biological impacts of the ACR. How can APA determine that there would be no undue adverse impacts if the relevant studies have not been done in advance? Moreover, after the fact studies can never substantially alter the layout of the project even if substantial impacts are shown, and the public cannot possibly critique the methodology or effectiveness of after the fact studies once the hearing record was closed.
From the hearing record, APA’s Paul Van Cott cross-examines Dr. Klemens on June 7, 2011. Mr. Van Cott: “If the Adirondack Park Agency were to approve the project as proposed, do you have any thoughts about studies and/or mitigative measures that the Agency might consider employing after the fact relative to this project?” Dr. Klemens: “Well, as I’ve testified before and I’ll reiterate again, I mean as you don’t know the critical areas on the site, it’s very hard to approve something and then go out and discover that what you’ve approved is right in the middle of — for example, of amphibian pathways. So the proper prudent way to design the site such as this is to understand the biological resources, beyond the amphibians, all the biological resources where the areas of use are and then design a development that protects that interconnected ecological balance on the site by avoiding (impacts). It’s sort of going in backward in a sense. And also if you approve something, you may have to end up redoing half of it based on the biology if not more of it. It just isn’t a prudent way to go about designing a development of any kind, especially a development of this size, without any biological information. You really have to do that first.”
The applicant never did provide that biological information and the APA issued the permit anyway. At least one of the judges seemed to be bothered by this.