That’s an understandable reaction, but the opponents have raised an interesting legal question with broad ramifications for the whole Adirondack Park. At least, that’s how it appears to a layman.
The question is: Are the development guidelines set forth in the Adirondack Park Land Use and Development Plan mandatory or not?
In a decision in July, the Appellate Division suggested that they are not mandatory.
The question came up because the project’s opponents contend, among other things, that dividing up timberlands for “Great Camp” estates violates the land-use plan.
Located near the Big Tupper Ski Resort, the timberlands are zoned Resource Management, the most-restrictive classification in the land-use plan. The developers seek to build eighty single-family homes, including thirty-five Great Camps, on 4,700 acres of RM land.
Single-family residences are allowed on RM lands as a “secondary” use. The land-use plan states: “resource management areas will allow for residential development on substantial acreages or in small clusters on carefully selected and well designed sites.”
The opponents claim that the ACR proposal meets neither criterion.
The land-use plan fails to define “substantial acreages” or “small clusters,” so people can easily argue both sides of this issue. However, the Adirondack Park Agency, which issued a permit for the project, contends that in any event the criteria are not mandates.
In a footnote to its decision, the Appellate Division pointed out that the first paragraph of the land-use plan, which was adopted in 1973, states that the plan shall “guide” the agency’s decisions. “We reject petitioners’ argument that the APA committed a legal error by concluding that this provision [referring to substantial acreages or small clusters] was not a mandatory rule, but a consideration to guide the APA’s exercise of its discretion,” the court said.
John Caffry, the attorney for the opponents—Protect the Adirondacks, the Sierra Club, and a private citizen—argues in legal papers that the Appellate Division’s interpretation “essentially gutted the heart of the APA Act.”
Caffry writes that the land-use plan “creates mandatory requirements that must be strictly enforced” and notes that the plan allows for variances from these requirements.
“If the Legislature had intended for the plan to be merely guidance, without strictly defined requirements, it would not have needed to provide for the granting of variances from ‘the strict letter of the provisions of the plan,’” he asserts.
If the decision stands, Caffry warns, “the statutory protections afforded to the lands and environment of the Adirondack Park will be significantly weakened.”
The quotations are from a memorandum of law that Caffry submitted to the Appellate Division in support of a motion to take the case to the Court of Appeals, the state’s highest tribunal. Because the lower court’s decision was unanimous, the plaintiffs do not have an automatic right to appeal. Rather, they must demonstrate that the case raises novel issues of statewide significance.
The state attorney general, representing the APA, opposes the motion.
“Petitioners miss the mark in their attempt to frame a novel issue by arguing that the statutory description of resource management lands … creates a ‘binding rule’ which the Agency improperly treated as simply a ‘guideline,’” Assistant Attorney General Susan Taylor writes in a legal memorandum.
Rather than define “substantial acreages” and “small clusters,” Taylor says, the land-use plan “contains narrative descriptions of the purposes and character of resource management lands which the Agency must apply to find compatibility. … The Agency necessarily retains discretion in applying the objectives and character described. … As this Court held, substantial record evidence supports the Agency’s reasonable determination that construction of the proposed dwellings comports with the character and objectives of resource management lands.”
If the attorney general’s office is right, one wonders what else in the land-use plan is merely advisory.
Bob Glennon, a former APA counsel and executive director, contends the court’s ruling calls into question virtually all of the plan. “What an irony is here,” said Glennon, who is now on the board of Protect the Adirondacks. “We go to court seeking to force the APA to do its job, and it comes away with a free pass allowing it to do so only if it wants to. These are dire times for this cherished Park.”
The Appellate Division may rule this month on whether to grant the plaintiffs leave to appeal. If the motion is rejected, Caffry intends to submit a similar motion to the Court of Appeals itself.
Full disclosure: John Caffry is defending me in a legal case involving paddlers’ navigation rights.
Photo by Carl Heilman II: Cranberry Pond near the Big Tupper Ski Area.