Monday, August 4, 2014

Fight Against APA Over Tupper Resort Continues

Adirondack Club and Resort MapProtect the Adirondacks and the Sierra Club are asking the Court of Appeals, the state’s highest court, to review a recent decision in favor of the developers of the Adirondack Club and Resort, a massive development proposed for Tupper Lake.

In July, the Appellate Division of State Supreme Court upheld the Adirondack Park Agency’s decision to grant a permit to the developers.

In a statement today, Protect and the Sierra Club said the midlevel appeals court, which is based in Albany, made several errors in its analysis of the case. Because the Appellate Division’s decision was unanimous, the groups must seek permission to take the case to the Court of Appeals.

Following is the groups’ full statement:

Protect the Adirondacks, Sierra Club, and a neighboring landowner have submitted a motion seeking leave to appeal the July 3, 2014 Appellate Division, 3rd Department, decision rejecting their legal challenge to the 2012 approval by the Adirondack Park Agency (APA) of the 6,000-acre Adirondack Club & Resort project in Tupper Lake, the largest development ever approved by the APA. The motion was made in the Appellate Division, 3rd Department, in Albany. The return date for the motion is August 18th. If the Appellate Division denies this motion, Protect the Adirondacks and Sierra Club plan to make a similar motion to the Court of Appeals, as provided for under the applicable rules of procedure.

Protect the Adirondacks and Sierra Club strongly disagreed with the Appellate Court decision. The Protect the Adirondacks and Sierra Club lawsuit primarily focused on the approval by the APA of 80 “Great Camp” lots spread widely throughout lands classified as Resource Management under the APA Act. The court’s decision did not examine the failure of the APA to uphold the APA Act for development of lands classified as Resource Management. If the Appellate Court decision is upheld, it will create a ruinous precedent that will negatively impact hundreds of thousands of acres classified as Resource Management across the Adirondack Park.

Another principal objection is that the Appellate Division erred when it held that the Adirondack Park Land Use and Development Plan of the APA Act is merely guidance to APA and is not binding on the APA, despite the plain language of the statute to the contrary. This reverses 40 years of legal practice at the APA and accords APA decision-makers with vast opportunities to issue permits with little justification.

The Appellate Division also erred when it held that APA’s reliance upon post-approval studies of adverse impacts to wetlands and wildlife, which have not yet been conducted, as grounds for approval of the project, was not arbitrary and capricious.

The Court also did not examine the APA’s reliance on materials that illegally supplemented the hearing record to make its decision. The Court also failed to examine ex parte communication issues.

The timetable for such motions is relatively quick. Final resolution of this motion, and a potential similar motion to the NYS Court of Appeals, is expected within six months. At this time the ACR developers do not yet have final APA permits. Nor have they secured permits from the Department of Environmental Conservation and US Army Corps of Engineers, or necessary approval from the Office of the Attorney General.

The map shows the site of the proposed Adirondack Club and Resort.

 

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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.




43 Responses

  1. adirondackjoe says:

    good job guys. i hope we win.

  2. Paul says:

    “The Court also did not examine the APA’s reliance on materials that illegally supplemented the hearing record to make its decision. The Court also failed to examine ex parte communication issues.”

    I thought it did both?

    • Paul says:

      On number one the court examined this and ruled as follows:

      “Petitioners’ assertion that the APA’s staff improperly
      provided the APA members with summaries of the hearing record
      without giving the parties an opportunity to comment is
      unwarranted.”

      On number two:

      “Petitioners have also failed to establish, despite their
      contentions to the contrary, that any improper ex parte
      communications occurred between the APA members and the
      developers during the deliberative process.”

      This is going nowhere.

  3. Chris says:

    Shouldn’t your title be, “Green Groups Continue to Fight APA?”

    • John Warren says:

      Yes, it should. I’ve corrected that.

      John Warren
      Editor

    • Phil Brown says:

      I don’t object to the new headline, but the first was accurate. By fighting the APA decision, the groups are fighting the project.

      • Paul says:

        They could argue that the “fight” is against the implementation of the regulations and not against the development specifically. But I don’t think anyone would buy it!

  4. Chipmonk says:

    One important point was not mentioned. The groups are now making their first and only appeal in this case. Under court rules they originally took the case directly to the Appellate Division of the Supreme Court, entirely skipping the lower court, that is the State Supreme Court or trial court at the county level. The Appellate Court decision, the only decision in the case so far, was extremely superficial, with no analysis whatsoever. That is absurd for a case involving the biggest development ever to hit the Adirondacks and which has tremendous implications for the future of the Park and the APA Act.

    No matter what the final outcome of this case, PROTECT and the Sierra Club have done an outstanding service in protecting the Park by bringing this case in the first place and insisting that APA obey State law instead of just caving in to pressures for local jobs and development as APA did in approving this project after the developer dragged out the APA hearing for years by repeatedly requesting delays while, at the same time, refusing to change basic illegalities in the project.

    All who love the Park are in the debt of PROTECT and the Sierra Club for doing the job that they are supposed to do as environmental conservation watchdogs.

    • Don Dew Jr. says:

      Chipmonk,One important point to you. You are correct that the case went directly to the Appellate Division. Don’t forget this matter went through a lengthy adjudicatory hearing that is a quasi court style process at the conclusion of which a decision was rendered by the APA. Therefore there has been two decisions rendered so far.

    • Paul says:

      “insisting that APA obey State law”

      Apparently they did.

      To say that the appellate court did “no analysis whatsoever” isn’t accurate. I see no reason why the Court of Appeals would consider this case.

      This boils down to the fact that the APA act has flexibility. This flexibility is something that green groups like if it is used to reduce development (for example if housing for farm workers is not deemed an agricultural use structure) but not when it is used to approve development that the agency has determined meets the regulations.

  5. Chipmonk says:

    What happened? I typed a reply, accidentally hit the Submit button twice, a message came up saying I had submitted a duplicate message, and then everything was blank and nothing was posted. Why wasn’t at least one of these “duplicates” posted? Very frustrating.

  6. Don Dew Jr. says:

    Semantics could also provide you with this headline “Green Groups Now Challenge New York State Appellate Court 3rd Divisions 5-0 Decision.” Where they previously claim the APA erred, they now shift and claim the Appellate Court erred. For those interested,the combined total of the APA and Appellate Court decision makers stands at 15-1 favoring the project moving forward.

  7. Chipmonk says:

    Thanks for making the disappeared reappear!

  8. Chipmonk says:

    If we want to add apples and oranges and be silly, just as the APA voted 10-1 in favor of the project with no changes and the Appellate Division voted 5-0 against the plaintiffs, you could say that the PROTECT and the Atlantic Chapter of the Sierra Club are comprised of about 40,000 members who are against the project in its present form. (Note that these organizations are not opposed to the project in its entirety. They never were. They are just opposed to it in its present form, particularly in terms of carving up the 6000 acre Resource Management area with 80 “great camps.”) Or you could just count the board members of each organization, probably about 40 people. Either way, counting in a silly way doesn’t count.

  9. Don Dew Jr says:

    Chipmonk, You make some fair points and some not so fair ones. If you would come out from anonymity I would welcome a meaningful dialogue off line. I have never frankly been a fan of the back and forth on line anonymous debate and will end mine here with just the following thoughts. 1)The Sierra Club was not involved in any formal part of this process until the litigation phase.2)You say they are not opposed to the project in its entirety. I am not sure the official record reflects that and while other Environmental Groups did offer some alternatives I do not recall that Protect did.

    • Chipmonk says:

      The application by Foxman was submitted to APA in 2004 and was finally declared by APA to be complete in 2006. then the public hearing started. Members and staff of The Association for the Protection of the Adirondacks were in this all the way from the beginning, right to the end, present at every meeting. The Association merged with the Residents Committee in 2009 to form PROTECT and the direct involvement continued.

      The Sierra Club kept very close track of what was going on from 2004 to the APA vote. They commented on several occasions in writing. When the APA decision was made they did not just jump in cold turkey. They have a process where the state organizations, in this case the Atlantic Chapter which covers NYS, must get approval for lawsuits from the national organization in San Francisco. Initiating or joining others in a lawsuit must be fully justified, in writing, and voted on by the Legal Committee of the national organization.

      And, believe me, these groups do not start lawsuits to generate donations. It doesn’t work that way.Financing a big suit like this one is a continuing drain on resources.

      • Don Dew Jr says:

        Chipmonk, Thanks for refreshing my memory and I now recall seeing some written comments submitted by the Sierra Club to the APA during the appropriate comment periods.I actually was referring to there lack of participation in the Adjudicatory Hearing(where opportunities to discuss alternative solutions existed). Also thanks for the history lesson on the formation of Protect. I am well aware of how they became (also thought why don’t all the enviro groups merge in to one for strength in numbers and money but it is evident even they do not agree)and I was seated next to Mr. Caffrey numerous times throughout the hearings. The record will reflect my participation “from beginning, right to the end, present at every meeting” as well. I do think you would have to agree the Sierra Clubs role became ramped up during the litigation phase. I personally reached out to Roger Downs but he would not return my e-mail or calls.

      • Paul says:

        Many of the delays were because of the developer. For example I think they held off on the first delay in submitting info the agency asked for. The permit could have been complete sooner if they wanted. In fact they could have been calculated due to the slump in the real estate market. It is probably to the benefit to start now rather than in something like 2008 right after the crash.

  10. headscratcher says:

    This is a fascinating decision by the groups involved. I’m trying to parse the calculus they must have done to come up with the decision to appeal the unanimous ruling. Here’s my thinking

    1. They genuinely believe they have a strong likelihood of success at the Court of Appeals level despite the unanimous decision against them at the Appellate Division level. I find this hard to believe; the Court of Appeals takes very few cases and even fewer where the decision at the prior tier was unanimous. The odds are overwhelmingly against a positive decision in their favor. So this can’t be the reason they’re appealing.

    2. They believe this project is so hideous, such a blatant contravention of all that’s right in this world, a complete and utter evisceration of the ideals of the Adirondack Park, that the lawsuit must be pursued to its utter end, even though failure stares them in the face. Meh. The project has lots that reasonable environmentalists can find objectionable, but we’re not talking building a nuclear power plant on Forever Wild land here, but a development that went through an approval process, even though it was one the litigants here believe deeply flawed. So I don’t buy this explanation either.

    3. Instead, I think the rationale for pursuing this to the bitter end has to be twofold, neither of them one having to do with the merits or lack thereof of the ACR. First, this is a source of funds. If they believe they’ll bring in more in donations from angry members than it’ll cost them in the additional legal fees (which will probably be minor — the cost of having their attorneys prepare and submit this filing which will in all likelihood be rejected shortly). Second, they’re trying to send a message, not to the ACR developers, who are going to win this round, but to future developers. They want them to know, when they sit around a negotiating table with Protect and the Sierra Club, and discuss the project in question, that if they don’t cooperate, these groups WILL fight them to the very bitter end, no matter the cost.

    So I think this is really about sending a twofold message: to their donor base (“pony up! we’re fighting God’s fight!”) and to future opponents (“pay attention to us or we will make it costly for you!”).

    • Paul says:

      Perhaps it is to let future developers know that even if you follow the rules and the letter of the law we will fight you tooth and nail. Perhaps these groups hope that it discourages developers from even getting to the table at all?

  11. Chipmonk says:

    Idle speculation. You obviously have no idea what goes on in these green groups. I suggest joining them. You might find out the facts.

    • headscratcher says:

      speculation, certainly. Idle? absolutely not. I am deeply involved in Adirondack environmental issues, but not with either group here (which is why I’m speculating). What facts do you think I’m missing here? What I’m trying to analyze is why Protect and Sierra, which are both run by (presumably) intelligent, rational people, would choose to pursue a court case that any objective observer would say they have enormously little chance of winning at this stage. The explanations I came up with are the only ones that would make sense to me. If you disagree, what alternative explanations do you think rationalize Protect and Sierra’s decision to appeal?

  12. adirondackjoe says:

    well put Chipmonk, well put.

  13. Mohawkriver says:

    My guess is that they just want to tie things up as long as they can in the courts. Delays are very expensive to developers as they presumably have to pay interest on borrowed money. In my opinion it is a flaw with the American judicial system that people can simply Tie others up in court proceedings. I believe that if they lose their appeal they should have to read numerate the developers for their costs. Hasn’t this thing already taken over a decade? This is the kind of thing that gives environmentalists and attorneys a bad name. In the past I have belonged to the Sierra Club and numerous other environmental groups. I will never again join either one of these environmental groups as I really think they are truly extremist. In addition to being extremists they are also elitists. It’s time for those of us who enjoy outdoor activities in the park but who live outside of the park to have some consideration and empathy for people who have to make a living within the park. Just spend a little bit of time in Tupper lake and listen to the will of the people who live there. There is in fact a happy medium and A need to compromise.

  14. Paul says:

    In 2013 the Sierra club had over 100 million in assets along with 14 million in cash (another 17 million in money market funds). Why don’t they just buy all the lots and not build on them? They can donate them to the state.

    • william Deuel,Jr says:

      To many outside groups in all of this regarding the adirondacks. How about we go with what the people of Tupper Lake feel about this, you know, the folks who actually live there.

      • Paul says:

        My point was simply that if the Sierra club is really interested in preserving the land why not buy it like the Nature Conservancy did with other parcels?

        • william Deuel,Jr says:

          Paul,

          Your point is well made. If the Sierra club really feels this way they could certainly afford to purchase this land, but for many reasons I do not see that happening.

  15. Charlie S says:

    The above comment is the same thing as saying to the poor families who live in run down trailers in the southern tier “What do you people think about the gas people coming in here to spoil your soil and taint your water so long as we supply you with jobs?” Desperate people will bow to anything when it comes to money William. Tupper Lake is hurting economically no doubt but at what extremes do we go to please the folk living there?
    That is one mighty big project they plan on developing up in Tupper and I imagine what that place might turn out to be in just twenty years from now if it flies.

    Maybe I’m wrong but I cannot help but feel like this development is more about appeasing those with opulent means than it is about appeasing humble Tupper Lake residents.

    • william Deuel,Jr says:

      Charlie,

      If this was more about those with opulent means I would certainly agree with you. On the other hand I think we need to give the people of Tupper a little more credit, if they are all for it and it can improve their situation then who am I to stand in their way.

      We had the reverse here in Saratoga where I live. The rest of the state thought it would be great if we had a casino. The people of Saratoga thought otherwise . In the end the residents were heard and the casino will be built somewhere else.

    • DM says:

      It might turn into Lake Placid or Lake George. Where many of the people who are fighting against this development live..

  16. adirondackjoe says:

    i thought the state tried to buy it years ago but the town shot it down. i may be wrong but that’s what i remember.

  17. Charlie S says:

    Who is going to be buying these homes William? Not your average blue or pink collar worker.Most likely people who already have a first and second home. I’m all for the underdog (Tupper Lakers) but not at the expense of what remains of our ecosystems,and certainly not at the expense of my beloved Adirondacks which is a very individual place on this planet which is getting smaller by the moment. It’s always in little increments that we take away more and more William and before you know we have corrupted the system and never again will it be as pure as it was. Never! The eco system that is.
    It’s always about dollar amounts William,and usually so that a few people can profit,and screw every thing else in the meanwhile. Why should this project be any different?

  18. Jim Frenette Sr. says:

    To Charlie S… To the best of my knowledge the question,”what do you think the village and town of Tupper Lake will look like 15 or 20 years from now and is that what you want?” has never surfaced.

  19. adirondackjoe says:

    did the state try to buy it? anyone?

  20. Jim Frenette Sr. says:

    TO ADIRONDACK JOE. The state tried to buy a parcel around Moody Pond which is a part 0f the OWD holdings. The town exercised its veto power .

  21. Paul says:

    Real estate and real estate development is the backbone of any tourism based economy. Just look at any place with that type of economy. Cape Cod, Aspen, Hilton Head it is all about real estate. If these groups actually think that tourism is the key to the Adirondack economy then this type of development is just what the doctor ordered. Will it fly? That is an open question. Only one way to find out.

  22. Hope says:

    OWD is still actively logging this land. By the time the developers get it there will hardly be a tree left. The new land owners will have to plant their own forest.

  23. Charlie S says:

    Jim Frenette Sr. says: To the best of my knowledge the question,”what do you think the village and town of Tupper Lake will look like 15 or 20 years from now and is that what you want?” has never surfaced.

    That’s the problem Jim.We’re not futuristic,it’s all short-term thinking going on in the minds of the many.It’s about next week,and maybe the next year or two,but never is it about 20 or 30 years from now.Or a hundred years from now!

  24. adirondackjoe says:

    thanks jim.

  25. Don Dew Jr says:

    Mr. Frenette and others, Tupper Lake does have a document or Community Master Plan that the revitalization committee has worked on over the last decade with strong citizen and local government support and endorsement. It strongly looks at what Tupper Lake could look like 20-25 years out. It might be time for an update because the document I believe strongly supported the upgrading of the railroad at that time. Copies of the document can be obtained from Mellissa McManus Community Development Consultant.