Friday, May 2, 2014

Adirondack Club and Resort Update:
Appellate Court Oral Arguments

Adirondack Club and Resort MapIn 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.

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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.

20 Responses

  1. John Sorrenson says:

    Normally the proposed valet service type of use at a state boat launch would require a TRP from the DEC. In theory they consider the impacts of the use on the public also using the area. The project could go ahead and the DEC could just not issue the TRP. They are not necessarily connected, although I understand that is part of the development plan.

    The APA greatly regulates water draw down for Whiteface from the West branch of the Ausable, why do they have no regard for this small pond? strange and makes you wonder. I didn’t see where there was a quantitative analysis of the the flow into the pond. It’s fairly easy to do, why was this not part of their application? Why did the APA approve without this data? It’s is presumably a spring fed pond. Water level and inlet and outlet data and simple calculations give you a good estimate on the volumet of water that is spring fed. They must have some estimates on the amount of water they want to remove for snow making. These are basic requirements for a ski center. How is it this was left out? Someone please correct me if this was included in the hearing record or application somewhere. Perhaps a decade wasn’t long enough for the LA group to assemble these elementary graduate level calculations.

  2. Paul says:

    I don’t see how this boat launch issue could be a constitutional issue.

    Owners of ACR property ARE the “public”. They have the same right to use the public boat launch as anyone else??

    So they are all going to be launching their boats there everyday? Seriously?

    This just sounds mote like a growing pains issue more than anything. Put in a second ramp if necessary.

    • John Sorrenson says:

      I agree. While the boat launch is state land is it even Forest Preserve? If it’s something other than Forest Preserve it would not be an Article 14 issue? Either way it is not part of the actual development. Way bigger problems with the permit than this.

      • Paul says:

        I think it is Forest Preserve land. Probably designated for intensive use.

        If there are bigger problems for the permit it is surprising that the judges didn’t ask questions regarding the “other” areas they have concerns with.

        It seems like the snowmaking was the only other issue they raised. It sounds like there is an alternative water source (with an easement negotiated) if that becomes a problem? Not a perfect way to deal with this issue but it is one that probably satisfies the APA’s mandate. It sounds like their legal team was satisfied.

      • Paul says:

        Also, why not just buy a small piece of property on the lake and put in a private launch. It would be more attractive to investors anyway.

      • Phil Brown says:

        State land within the Adirondack Park ordinarily is Forest Preserve. I don’t see why this stretch of Tupper Lake shoreline and the boat launch would be be an exception.

  3. Walker says:

    “It seems like the snowmaking was the only other issue they raised.”

    Paul, I think you’re missing the issue of the after-the-fact testing– the last four paragraphs of the piece. Given that the propriety of APA’s approval process is at issue, I think that’s a significant matter.

    • Paul says:

      No, I get that. I was just saying that it sounds like the judges only raised these two issues in this exchange.

      Dave can suggest that this might indicate that they have some issue with a different after the fact wildlife study. But I think that is pretty speculative. (last three paragraphs).

      It doesn’t sound like the question the judge raised had anything to do with any wildlife survey? But I guess you could make the link. If I was the plaintiff I would be more comfortable if the judges had just come out with some more direct questions. It doesn’t sound like there is much there for turning over a 10 to 1 decision?

    • Paul says:

      “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.”

      On this particular point it sounds like the applicant (ACR) has made provisions for an alternative water source if it proves to be a problem for pond water levels.

      Unfortunately sometimes you just don’t know what is going to happen based on modeling. Here they have a backup plan to protect the pond.

  4. Charlie S says:

    “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”

    It’s always about entertainment isn’t it? It’s like when young couples (or old) buy new homes…always the fixation is on the “Tv room,” that’s where the focus goes (and the money)…a giant flatscreen tv,a remote & a couch to be comfy on while being seduced by the Godhead.

    I never thought about boating relative to this project.That’s another thing to be concerned about,more boats on Tupper,more noise,more pollution.And of course we’re not yet talking about what pesticides or fungi/herbi-cides they will be spraying to keep their lawns purty.Or can we expect these new homeowners to be above shallow in their thinking? Maybe I’m off course but I cannot help but think ahead some on this Tupper Lake issue,and many others.I just wish my mind would shut off sometimes O’ sensitive me.

    I do find it comforting that they are at least aware that there are amphibians on that land.This isn’t always the case.I suppose somebody with amphibian intelligence slipped his or her two cents in somewhere along the line.

    • Matt says:

      Friday, 4:30pm… This comment makes more sense when I realized that it’s happy hour.

  5. Smitty says:

    Dave: please shorten your articles. I think it was Mark Twain that said, “Sorry this letter is so long. It would be shorter if I had more time.”

  6. Keith Silliman says:

    Very seldom can you predict the outcome of an appellate case from the tenor of the questions asked by the panel at oral argument. The appeals I have been involved in where I have felt confident coming out of argument– I lost; the ones where I felt I lost, I won.

    You cannot predict anything from the areas of interest expressed by a judge, especially in complex and esoteric cases.

    David captured the sense of the oral argument quite well.

  7. Charlie S says:

    Dave: I like your informative long-windedness.Keep it up!

  8. Charlie S says:

    “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).”

    In Nature there are so many little living things that most of us just don’t,and never will,see. With natural enemies there is this constant battle for existence that goes on in these little living things short lives,some of whom have greater powers of resistance than others. When man enters the picture with his great machines and selfish minds those greater powers of resistance for those little unseen things are suddenly weakened and before long they are gone…. like the passenger pigeon and the black rhino gone.

  9. Little Buckaroo says:

    APA’s hearing on this project went on for six years, mainly because of delays request by the applicants. Two years ago PROTECT and the Sierra Club filed their initial brief, by John Caffry, and there were 28 causes of action in it. Twenty-two thousand pages of testimony have been compiled. And it all comes down to 10 minutes of oral argument for PROTECT and Sierra, 10 for APA by the AG and 10 for Preserve Associates, during which two voluble judges focused almost exclusively on the boat launch and Cranberry Pond in their questions. Now we wait two to four months for a decision – followed by the possibility of an appeal, however remote, to the Court of Appeals. If justice is done at the end, it will be amazing. Will the participants in this case ever be able to get on with the rest of their lives, whatever is left of them?

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