Thursday, August 25, 2016

Dave Gibson: Tupper Resort Delay Self-Inflicted

A scene from the APA's hearing on ACR. Photo by Dave Gibson, Adirondack WildOne who participated or sat through the Adirondack Club and Resort (ACR) adjudicatory public hearing in 2011 is hard pressed not to read with interest the recent articles about the status of ACR in the Adirondack Daily Enterprise. The articles appeared in the August 11-12 editions.

Michael Foxman, ACR lead developer, is quoted in one article as saying: “We’ve been bled dry for millions of dollars. We had about $10 million worth of lawyers and planners and engineering approval delay costs. I think that no one including me could’ve imagined the complexity of trying to develop in the Adirondacks with objections from the preservation groups.”

Let’s review the history of this development. As I was involved with two organizations, one before the ACR hearing (Association for the Protection of the Adirondacks) and one during the hearing (Adirondack Wild) I recall that It was Mr. Foxman – not preservation groups – who failed to deliver a complete application to the the Adirondack Park Agency during the two years from the first meeting in Tupper Lake in 2004 to the Park Agency’s decision of application completeness in late 2006. Mr. Foxman met with APA staff on several occasions. He was issued two notices of incompleteness. He knew the law and what he had to do to complete the application.

My organizations had and still have many criticisms of the way APA reviewed the application, conducted the hearing, and reached its conclusions, but any claim that APA delayed Mr. Foxman or failed to follow the clock required by the APA’s statute is specious.

Once the APA declared in the winter of 2007 that it would sponsor a full public hearing, it was Mr. Foxman – not preservation groups – who asked that the hearing be delayed. Pre-hearing meetings resulted.

One year later, as the grip of the Great Recession tightened, Mr. Foxman asked for “mediation” – ostensibly to seek a middle way forward most could agree with.  Over many meetings and months we and others brought information to Mr. Foxman about how the project could be designed differently to avoid major impacts and meet legal standards.  He appeared uninterested in these ideas. He said he knew how to build ACR and what would sell. APA staff convinced him to make relatively minor changes. DEC brought forward issues with sewage treatment, water supply and other infrastructure.  All those matters would be ironed out in subsequent DEC permits, Foxman said. The meetings went on and several years passed. The three or four permit applications he needed to submit to DEC were never completed throughout this period.

As the country began to come out of recession, Mr. Foxman finally called an end to “mediation” meetings in 2010. The APA public hearing began in March 2011.

The hearing evidence was presented from March, 2011 through the summer. The hearing concluded in November. The APA permit decision was issued in January, 2012.

To review, for two years (2005-2006) his so-called “approval delay costs” were the result of an incomplete APA application. For the next four years, (2007-2011) these costs resulted from his own decisions to postpone the start of the hearing.

In my view, APA reached its application completeness decision in 2006 due to political pressure, not because the application was truly complete. The result was that much of the hearing was spent attempting to fill in big gaps in the information rather than analyzing good information.

As an observer of the subsequent lawsuit, I feel that it was driven in part by ACR’s failings to submit substantive hearing evidence about everything from wildlife to tax and sales projections that would meet the legal standards for permit issuance.

One example from the hearing record will suffice here. The applicant’s market research, wrote ski resort market expert David Norden, “fails to give an investor the tools required to determine the marketability of the project, primarily because the data is outdated and inadequate to analyzes sales price-point, sales volume, product positioning… This is a major shortcoming of the due diligence work performed by the development team.”

The glaring absence of substantive information was Mr. Foxman’s responsibility, one that should have resulted (but didn’t) in APA turning down his version of ACR for, without substantive information, how could the APA deem the project not to have undue adverse impacts. The courts ruled otherwise.

The Enterprise article states that the project has “stretched more than a decade beyond developers’ expectations.” The history and record shows that in most instances the lead developer has largely himself to account for “approval delay costs.”

Photo: A scene from the APA’s hearing on ACR. Photo by Dave Gibson, Adirondack Wild.

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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 PreserveDuring 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.

9 Responses

  1. Boreas says:

    I’m confused – I thought the lawsuit green-lighted the project. Hasn’t ACR sold any of the properties? If not why not? Is Mr. Foxman now fishing for seed money from taxpayers as he did with the sewage upgrades required by TL?

  2. Dave Gibson says:

    Boreas, if you would like me to email you the Enterprise articles glad to. Just drop me an email.

  3. Glenn L. Pearsall says:

    Anyone know the status of the Main Street Project by Crickelear on the west side of Rt 28 in North Creek? Seem to recall they received APA approvals years ago…

  4. Lorraine Duvall says:

    Thanks Dave for setting the record straight. Good data that needs wider distribution.

  5. Kyle says:

    Good Article Dave. Thanks for your continued vigilance.

  6. John says:

    Great accounting of the developers delays in the process. The 2 articles in the ADE were a good start but only scratched the surface. The “developer” has many more unpaid bills to contractors and small businesses all over northern NY, many right in Tupper Lake. And it is not because the process has “bled him dry”. It is a pattern he has established going back many years
    During the hearings it was revealed that he had Fed Tax liens for over $500,000. for non payment of Fed Income tax for the years 07,08 and 09.
    I guess the ADE must have received pressure from people associated with the ACR because the basically put out an Editorial a week later pretty much apologizing for the 2 articles.
    I hope the local officials in Tupper wake up and smell the coffee and stop wasting time and money backing this fiasco.

    • Boreas says:

      I would think TL could find other investors/developers to build a more environmentally friendly development. If Mr. Foxman can’t produce anything more than excuses, dump him and find a more credible developer. It is TL that should be bemoaning the decade of delays, not Mr. Foxman. He sold TL an idea he could not bring to fruition. To many, that would make him a charlatan.

  7. Tim says:

    It will never be built and, now it seems, he will blame it on others.

  8. Carol Nye says:

    So says the Preservationist.

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