One big change that the Andrew Cuomo years brought to the Adirondack Park Agency (APA) was that the senior staff and the APA Board refused to send a single development project to a formal adjudicatory public hearing. This defies logic in many ways. Based on information from a Freedom of Information request, from 1973 through 2010 there were 151 projects in APA history sent to a formal adjudicatory public hearing. Yet, somehow, during the Cuomo years, the Governor’s staff that managed the APA, and the APA senior staff, never allowed a single formal adjudicatory public hearing.
A formal adjudicatory public hearing is not a standard “public hearing” where the public is invited to comment on a specific proposal. This is not a forum where speakers get three minutes to talk about a proposed action. A formal adjudicatory public hearing is a quasi-judicial proceeding that’s administered by a Department of Environmental Conservation (DEC) Administrative Law Judge, where different interests can petition for party status, where independent expert testimony is introduced, where APA staff and experts can be cross-examined, and where an applicant’s experts can be cross-examined. Experts introduced by intervening parties can also be cross-examined. Some hearings take a day, some take weeks, some take months and years. All the safeguards around ex parte communications are employed.
The purpose of a formal public hearing is to develop a record. After the hearing is completed, the decision by the APA Board is made based on the record and often the contours of a given project and draft permit conditions are shaped by information developed in the hearing. Under the APA Act, the only time it can deny a project is if the projects goes through a formal adjudicatory public hearing. In this way, the APA lacks the basic authority that a local town or village planning board or zoning board of appeals in New York State possesses.
In the past, big projects like the Adirondack Club and Resort project, the Oven Mountain subdivision, and the Butler Lake subdivision were sent to formal adjudicatory public hearings. But even smaller, sensitive projects, like a single cabin on Lens Lake or the sign on the Lowe’s superstore in Ticonderoga saw formal adjudicatory public hearings.
In the Cuomo years there were certainly projects that merited a formal adjudicatory public hearing. The controversial Woodworth Lake and Woodward Lake subdivisions deserved a higher level of scrutiny and review, to name just two. The reality of the Cuomo years is that the Governor’s staff and the APA senior staff, with the blithe support of the APA Board, put their fingers on the scales of project review at the APA. When zero formal adjudicatory hearings were held in Cuomo’s ten years, after 151 were held in the previous 38 years, it’s pretty clear that the project review process was changed dramatically by Team Cuomo, and longstanding norms at the APA were subverted.
Today, new APA Board members have not received any briefings about formal adjudicatory public hearings. They have received no information about the APA’s history of using these hearings, about the benefits for improving project outcomes and public participation. APA members on the Board today have not been informed that these hearings are an important part of the APA’s regulatory toolbox and served a vital purpose at the APA for decades.
One former APA staffer who worked in Regulatory Affairs at the APA on project review told me that sending a project to a formal adjudicatory public hearing was off the table in recent years. The staff was simply not allowed to recommend this option to the APA Board. That was a dictate that came from Team Cuomo and was rigorously enforced by senior staff and the Governor’s staff.
Governor George Pataki made dramatic changes at the APA. In many ways, the APA’s downward trajectory started on Pataki’s watch with his wholesale Board and staff changes, which transferred the agency to local government control. On one day alone Pataki removed five stalwart environmental Board members and the APA executive director. Yet even in the Pataki years, basic operational norms were upheld. The Pataki years saw important formal adjudicatory public hearings on the use of the aquatic herbicide SONAR in Lake George and the NYCO Minerals mine expansions in Lewis, and for nine other projects as well. It was during the Pataki years that the Adirondack Club & Resort project in Tupper Lake was sent to a public hearing. Even during the dysfunction of the Spitzer-Paterson years, the APA sent four projects to formal adjudicatory public hearings.
The criteria to send a project to public hearing is enumerated in the APA Rules and Regulations Section 580.2“Determination to Conduct Public Hearing.” This section states that there are eight criteria that the APA shall use to evaluate the merits of sending a project to a formal adjudicatory public hearing. The “The criteria employed in determining whether to conduct a public hearing” include:
- the size and/or complexity of the project, whether measured by cost, area, effect upon municipalities, or uniqueness of resources likely to be affected;
- the degree of public interest in the project, as evidenced by communication from the general public, governmental officials or private organizations;
- the presence of significant issues relating to the criteria for approval of the project;
- the possibility that the project can only be approved if major modifications are made or substantial conditions are imposed;
- the possibility that information presented at a public hearing would be of assistance to the agency in its review;
- the extent of public involvement achieved by other means;
- whether an environmental impact statement will be prepared pursuant to the State Environmental Quality Review Act; and
- the statutory finding required by section 814(2) of the Adirondack Park Agency Act in the case of State agency projects reviewed.
These criteria are not difficult to meet if the criteria are evaluated in a fair, open, and transparent way. That has not been the case at the APA in the last ten years.
There are at least three projects now in the project review queue at the APA that merit formal adjudicatory public hearings. The proposal to open a new granite quarry in the Town of Forestport near White Lake has garnered intense public interest. The proposal by Barton Mines to expand its Ruby Mountain mine in the Town of Johnsburg with a new 80-year plan where new tailings piles will grow by over 150 feet in elevation and be piled high within a few hundred feet of the Siamese Ponds Wilderness boundary, certainly merits a formal adjudicatory public hearing. The new proposed 120-unit development on 355 acres in Jay certainly seems like a project that merits a higher level of scrutiny.
These three project deserve a decision about a formal adjudicatory hearing that is open and fair.
New APA Chairman John Ernst should investigate how it is that the APA went for ten years without sending a single project to a formal adjudicatory public hearing and make a full report to the public.
Almanack file photo of former Gov. Andrew Cuomo