Wednesday, April 20, 2022

Cost to Lake George of Not Holding APA Hearings

lake georgeThe Adirondack Park Agency (APA) last held an adjudicatory public hearing in 2011 – the kind of hearing that involves sworn testimony and cross-examination of evidence before a law judge, followed by a full hearing record on which to base a judicious, carefully examined, evidence-based decision. That 2011 hearing was for the proposed Adirondack Club and Resort subdivision and development near Tupper Lake. In the eleven years since, and despite the many hundreds of permits issued by the APA since, including many large, regional projects, not a single adjudicatory public hearing has been convened by the APA.

I’m not suggesting for an instant that the APA permit issued for the Adirondack Club and Resort following that 2011 hearing was carefully based upon the hearing’s evidence.  Issuance of that permit during that time was, largely, a political decision reached by the agency before the hearing had even concluded.  Perhaps for that reason I am occasionally asked whether adjudicatory hearings have any merit or public benefit. I believe they do, even that ACR hearing.  Ecological, regional planning and economic evidence in that hearing’s record still echo today as highly relevant for the present and for the future. Many APA public hearings before 2011 significantly reduced negative impacts of new land use and development in the Park through project denial or through major modification of the original application.

As to why the agency has failed to hold a hearing since the ACR’s, that is not accidental. Rather, it was a decision made by the Executive Branch (then Governor Andrew Cuomo) and by a willing executive staff at the APA. I feel that the ACR hearing cast a long shadow over the APA which has contributed to the decision not to hold any more. Further, holding any adjudicatory hearing is time consuming on the staff of the smallest state agency. Its degree of difficulty must be especially high during a pandemic.

However, 2012-19 passed without APA holding a single hearing – pre-COVID. Further, my own town has held remote public hearings throughout the pandemic. From Feb. 1987 (my first APA meeting) to the ACR’s 2011 hearing, the agency held at least one adjudicatory public hearing every year, sometimes several in a single year. Since 2011 the evidence points to persistent, purposeful resistance to adjudicating permit issues emanating from the Governor and from the APA’s leadership.

This situation has gotten so serious that Adirondack and statewide environmental groups, including the one I represent (Adirondack Wild: Friends of the Forest Preserve), sent a recent group letter to the APA on this topic. The letter, signed by Adirondack Wild, Adirondack Council, Environmental Advocates NY, Sierra Club Atlantic Chapter and former APA member Dr. Chad P. Dawson reads, in part:

“The undersigned…have great concerns about the spread of adverse environmental impacts across the Adirondack Park and what appears to be an ongoing resistance by the Agency to hold adjudicatory public hearings under its regulatory criteria.

A number of high-profile, complex land use and development projects with a high degree of public interest and with a likelihood of creating a variety of adverse impacts in the Adirondack Park are now in a pre-application or incomplete application status at the agency. Many of these meet your Part 580 regulatory criteria for an adjudicatory hearing… Our concern is that the Agency will continue to waive the opportunity to hold such hearings for large, complex projects possessing adverse impacts and a significant degree of public interest, a pattern since 2011 when the last Agency adjudicatory public hearing was convened.”

Since 2011 many projects amply met your hearing criteria but failed to be sent to adjudication. These included Highland Farmers LLC subdivision in Keene, the Zip-Flyer on French Mountain in Lake George, Woodworth Lake subdivision in Benson, Woodward Lake subdivision in Northhampton, Barile Family subdivision in North Elba and, most recently, Red Rock Quarry at White Lake in Forestport. In fact, one is on your agenda this month (aquatic herbicide treatments, Lake George Park Commission).

Staff comments on public hearing criteria at the December 2021 meeting suggest that large, complex projects are only recommended for adjudication when there are “gaps in information” presented by the applicant or when staff anticipate that “six or more members of the agency will not recommend approval.”

In fact, under Part 580 of Agency regulations staff and/or the board may recommend a hearing based on:

  • project size and complexity measured by cost, area, effect on localities or uniqueness of resources affected,
  • degree of public interest as evidenced by communication in Agency files,
  • the presence of significant issues,
  • the possibility that approval be conditioned only upon major modifications or substantial conditions,
  • the possibility that hearing information would aid the agency in its review.

There is no legal requirement that a project meet each and every one of the regulatory criteria to be sent to adjudication.”

The letter concludes that it is important for Agency executive staff, members and designees to bring this out into the open “so that the possibility exists to bring a future application to adjudication, “and thus to impose substantial conditions, major modifications or, as may be warranted, project denial without prejudice to the applicants.”

That’s right. The possibility for denial or even major modifications of any APA permit is conditioned on the holding of an adjudicatory public hearing on a specific permit application. That severe legal limitation on the APA’s powers to deny a permit application has been the law since 1973. The state legislature should change that undue limitation on the APA’s authority.

What seems clear to me is that the very possibility of a permit’s denial based on a publicly accessible hearing record is sufficiently unspeakable at the APA that it results in the policy not to hold a hearing in the first place.

Despite dozens of letters of concerned members of the Lake George community this month asking APA to deny a permit for using herbicide ProcellaCOR in two bays of Lake George, APA legally could not deny the permit because neither the APA staff nor its members had ordered a public hearing sixty days after declaring the herbicide application complete. That is the APA’s legally required time clock.

Back in the winter while the APA’s time clocks were still running, APA could have issued an additional notice of incomplete project completion, or NIPA, to the applicant Lake George Park Commission. There are plenty of informational gaps in the application, as a number of public comment letters pointed to. Then, depending on the quality of the additional information received from the applicant, the APA could have recommended this all go to adjudicatory public hearing.

Again, the 11-year-old policy dictated the answer: no. The APA staff, with the concurrence of six of the APA’s members (including all three state agency designees, from DEC, State, and Economic Development), purposefully let those time clocks expire several months ago.  All the APA could have done at its April meeting was to ask the applicant, Lake George Park Commission, for permission to stop the permit time clock in the pursuit of answers to specified areas of further investigation. The agency did not even get six votes for that.

Yet, it did get four votes for that. For the first time in many, many years four APA members present voted against an application, and for good reasons. Read the letters to the APA from the Lake George Waterkeeper, the Fund for Lake George, the Lake George Association, and from limnologist Dr. Carol Collins, among others. Those detailed letters from experts who have studied Lake George for a long time raise all manner of informed, concerned questions about the possible impacts of this herbicide on various aspects of Lake George’s public health and ecosystems, questions that have not been answered yet for lack of time.

Such lingering questions from experts so familiar with the lake about the impacts of the herbicide were precisely why the Lake George application met every one of the APA’s regulatory criteria to hold an adjudicatory public hearing where evidence could be sworn, subject to cross-examination, and entered into a formal record on which the APA could render a deliberative, well-reasoned, evidence-based decision.

One of these years the ice jam will break, and APA will hold another adjudicatory public hearing. The question is how many hasty, poorly reasoned, environmentally damaging permits it may issue in the interim.

Lake George from Prospect Mtn. Photo by D. Gibson

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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.

23 Responses

  1. Nathan says:

    Thas a very enlightening article and shows how greatly the APA is a total failure and questionable at best, The APA certainly is not includuing public input, but rather showing great signs of corruption and favortism to huge projects regardless of detriment to the Park itself. The APA over all shows favortism to rich developers and individuals with total disregard of community opinion, welfare or health. allowing quarries, mines, developments all with complete disregard to opinion or enviroment.
    So why should anyone trust the APA?? there seems to be absolutely nothing but contempt of local communities, opinions. Blatant catering to developers and rich individuals and raises questions of pay-offs and corruption!! It is time for state district attorney to investigate the APA for corruption and failure to have public hearings and input by the very communities these projects have dirrect impact on!

  2. JB says:

    Thanks. There are some important distinctions made in this article that I hadn’t seen in any of the media coverage. And few people realize just how different much of the Park would certainly look today had the APA operated as it does now in the past. There are so many questions that need to be asked–of the APA, about APA (and the rest of State government), by APA. But for most of us, the second Thursday of every month only rekindles the terrifying question: “What will be next?”

  3. Gary Hartwick says:

    After years of following the APA we have come to the conclusion that all this is just over the top. Tell me just what is the difference between all this and northern Vermont which does not have this and the corresponding taxpayer expense. The APA just needs to go away.

    • Todd Eastman says:

      Act 250 performs many of the APA-like functions in VT. It also has boards and costs taxpayers $$$.

      Responsible planning is part of living in civilized society…😎

  4. M.P. Heller says:

    Nevermind the APA. The LGPC is the agency that needs to be shut down immediately.

  5. Thanks for writing this, David. This brings to mind the legal fight over Lake George (The Lake George Water Trespass Case) that lasted about twelve years, pitting the State’s Attorney General against System Properties (a.k.a. the International Paper Company) concerning the illegal trespass of the paper company in the operations of its dam at Ticonderoga. My great uncle, John S. Apperson, and his good friend Dr. Irving Langmuir, led the fight, and they created an organization,The Lake George Protective Association, with many prominent shore owners, and provided impressive documentary evidence (photographs and pamphlets) showing islands being damaged by the erosion caused by high water. They discovered that the long established Lake George Association, along with Senator Charles Tuttle, and most of the townships all around the lake, took the side of the paper mill. Perhaps some of the big organizations currently supporting environmental causes at Lake George will consider taking a stand on this issue, and demand hearings, as you suggest!

  6. Bob Meyer says:

    I agree with with David Gibson. If, as Gov. Hochul says she wants, there is to be REAL transparency in government process and action then PUBLIC HEARINGS ARE A MUST! It’s not rocket science folks. Either processes are open to all of us or they are not. And, do not use “executive sessions” as a smoke screen to avoid scrutiny.
    It’s time for real change in Albany and Ray Brook!

  7. Lee Nellis says:

    One wonders if the APA members and staff, and the public hereabouts understand how different, how peculiar, their process is. Most local land use authorities conduct public hearings all the time. They do not normally conduct adjudicatory hearings, which are reserved for the courts when there is an appeal, but there is an open, structured process to air out the issues on every land use change the community (or sometimes, State law) deems significant. I have been involved in hundreds of these, sometimes with millions, even tens of millions of dollars at stake, and yet small towns with staffs far smaller than APA’s somehow manage to get through the process in a defensible way and in the course of doing so, to gain significant public benefits (traffic lights, parks, trails, even sometimes affordable housing units). The APA is NOT dispensable. The edges of these mountains would look a lot like the approaches to the Great Smokies if it were not for the APA. We – the planning profession and our allies amongst the land use lawyers – know how to make good decisions with plenty of active public engagement. APA is mired in a past mode of operation that was never a good idea, but that has been superseded almost everywhere else by decades of learning. Its as if the State bought a pick-up in 1973 and expects it to still be running without even changing the oil.

    • Boreas says:

      Or replacing broken parts…

    • JB says:

      …But is the problem APA’s lack of authority to contest a permit without holding an adjudicatory hearing, or the inability (or unwillingness) to hold a serious public hearing without implicitly contesting a permit? I’m oversimplifying for the sake of antimetabole, but, as I see it, there is really no way of framing that question that gets to the heart of the problem. Arguably, what works for municipalities will never work at the regional scale of APA. That is the true problem, and one that is going to demand complex solutions. …Or major structural changes that extend far beyond Adirondack Park management (government transparency/political reform, tax reform, county reform, service restructuring, etc.).

      • Lee Nellis says:

        JB. It seems worth pointing out that the population and development pressure in the Adirondack Park is substantially less than that in many mid-size municipalities. Yes, the drives are longer, but having once worked as a circuit-riding planner in NW WY, I can assure you that the ground can be covered (there were months when mileage reimbursement exceeded pay for me and my colleagues, but local decision makers got the professional help they needed). The solution is complex, but many other jurisdictions are navigating \the same complexity every month. Changes in state law are required, that’s for sure, but the necessary changes require no innovation, just a willingness to learn from the experience of others. The question at the moment is how much positive change could be made without the legislature if the Agency took full advantage of its enabling law and the intent of the plans. Which is to say, that the immediate question is one of leadership.

        • JB says:

          Lee, while there are likely no “municipalities” (i.e., Minor Civil Divisions or County Civil Divisions) in the United States larger than the Adirondack Park by land area, I agree that land area and population size are not necessarily major problems for Park management. In fact, this is part of the reason that I tend to disagree with the assessment that Adirondack towns are “dying” from geographic isolation and remoteness–a bit of ingenuity and inter-municipal cooperation can go a long way in a Park of no more than 140 miles across.

          But there are plenty of regions in the world, many geographically smaller than the Adirondack Park, that are traditionally impossible to centrally govern due to diversity of ethnic and national identities. While this has not exactly been the problem here for roughly the past 200 years, there is an exceedingly complicated jurisdictional landscape, coupled with a plurality of identities, that poses an analogous challenge. If there is any precedent for APA to learn from, maybe it is that of coalition governments, like the multiethinic coalition governments old and new that have brought stability, with varying degerees of success, to conflict ravaged regions throughout the world. And in fact, APA has been designed to function essentially as a coalition–to protect against economic ravages.

          The real problem then is indeed one of leadership, but also of sovereignty, autonomy, and culture. APA was obviously not envisioned to function as an empty proxy between municipalities and the State, but that is what it has become–a protocol for communication between different levels of bureaucracy. This should not be surprising given that modern local and State governance are both essentially economic innovations, but we have learned by now that all problems cannot be solved by these means alone. It is the unassuming power of social innovation that builds coalitions and engenders stability when all else fails, and APA was very much born from and lives in that neglected and unexplored social dimension. APA will arguably be ineffective when operated as a purely pragmatic, logistical, or economic instrument. It needs to be a cultural institution.

          Perhaps, most of all, we can learn from the original Adirondack coalition–that of the Haudenosaunee confederacy. Imagine, for one, if each APA meeting began with a ceremonial opening in the vein of the Ohénten Kariwatékwen (commonly called “The Thanksgiving Address”)…For example:

          “The Adirondack park is abundant in natural resources and open space unique to New York and the eastern United States. The wild forest, water, wildlife and aesthetic resources of the park, and its open space character, provide an outdoor recreational experience of national and international significance. Growing population, advancing technology and an expanding economy are focusing ever-increasing pressures on these priceless resources.

          Our forefathers saw fit nearly a century ago to provide rigid constitutional safeguards for the public lands in the Adirondack park. Today forest preserve lands constitute approximately forty percent of the six million acres of land in the park. The people of the state of New York have consistently reiterated their support for this time-honored institution.

          Continuing public concern, coupled with the vast acreages of forest preserve holdings, clearly establishes a substantial state interest in the preservation and development of the park area. The state of New York has an obligation to insure that contemporary and projected future pressures on the park resources are provided for within a land use control framework which recognizes not only matters of local concern but also those of regional and state concern…” (Adirondack Park Act, verbatim)

          • Lee Nellis says:

            There are 13 counties, including some very populous ones, and one reservation that are larger (\the Navajo Rez is much larger) than the Adirondack Park. A few more are close enough in size to be considered comparable. .

            I’ll think about it your assertion that the APA was created to function as a coalition. I can see your argument, but I don’t agree. Yes, it was intended to have different interests play a role, but I don’t think that peoples’ understanding of institutions in 1973 departed much from a traditional command and control, hierarchical model.

            You don’t have to persuade me that some equivalent of The Words that Come Before All Else would be beneficial in our public process, including APA meetings. The root of our problem is not institutional. Institutions reflect understanding. And I should be more hesitant to focus on leadership. The last thing we need is to perpetuate the cult of personality that we being tragically played out on the world stage. What we need, and from which better institutions and behavior would flow, is a better story, a better narrative. We have already stolen enough from Native Americans. We need to come up with our own story (which you have started in a different way, good work). And it will have to be a story compelling enough to outcompete the story of the Invisible Hand.

            • JB says:

              Lee, I was thinking, too, that the Navajo Nation, although not a “municipality” per se, would probably be the best example for that line of argument. Either way, I think that we are both really comparing apples to oranges. In the social sciences, and the natural sciences (especially in Europe), this comparative approach has been a big source of contention lately. It is finally being recognized that importing non-native ideologies and techniques has been a huge problem, culturally and environmentally. That is why, I think, I instinctively draw on “coalitions”, even if it may well be wishful thinking. At the very least, Schaffer, Petty, Rockefeller–even going back to the proprietors of the earliest private preserves–we cannot really say that these actors were operating in a command and control mentality. There is something else going on there, but I’m not sure exactly what to call it.

              And, yes, you are right to speak to cultural appropriation–Ohénten Kariwatékwen is certainly not apt to be co opted by Western institutions or pigeonholed into Western categorizations of religion vs. secularism, social vs. ritual, culture vs. law, etc. (Hopefully that did not come across as my intention.) But there also seems to be a renewed understanding, more so even in indigenous communities than in mainstream circles, that fear of asking uncomfortable questions is the surest way to lose culture, or as you say, understanding. Maybe the best way to frame this conversation, then, is actually around the need to ask questions, while keenly resisting the impetus to reinvent the wheel. And this points us to the greatest modern delusion of all. ..That–in the name of efficiency, pragmatism, correctness, and, ultimately, convenience–we can happily get away with not asking questions about ourselves.

              • Lee Nellis says:

                I never thought that you were advocating cultural appropriation. And I don’t really fear it. When I have my students listen to the Thanksgiving Address (a short version) they seem more stunned than eager to imitate.

                Perhaps there was something else going on. I think I know what you mean, and why it is hard to be sure about. I think of things William F. Cody (Buffalo Bill, who I have spent a fair amount of time thinking about for various reasons) said in an earlier era. There was definitely something else going on in his mind, but in the end he could only express it through the culture of which he was a part. Same I think with those folks back in the 60-70s. They could only work with the tool box they were given, and that was the kit of command and control, monetization, etc. In the context we’re setting, one could say it was the settler mentality. I call it the narrative of domination (heavy-handed, but true) in some of my writing.

                As you point out, it is a narrative that discourages any serious questions about why we do as we do. If we thought about it too hard, profits would plummet.

                • JB says:

                  Lee, I’ve always had a hard time with poststructuralism, but I am seeing the merits of “narrative” here. Though I’m sure poststructuralists have something to say about the Ohénten Kariwatékwen as a narrative itself–and one that better integrates the sort of interplay between disparate and serendipitous mindsets and phenomena that we see in Adirondack history, I believe that we are at least on the same page here in that exploring the larger narrative around the Thanksgiving Address is going to be more fruitful for us here. I’d be remiss if I didn’t mention how uncannily prescient the entire story of Haudenosaunee and New York State relations is pertaining to Adirondack Park history. Hopefully we can learn, for example, about the perils of factionalism in dealing with the State government and the perils of consumerism over traditional ideas about land use. And certainly we can all be inspired and encouraged by a story of cultural resiliency, even in the face of all of those challenges, and its prevailing power against all odds (even as premature narratives of victory abound with the latest land claims settlement). All of this is to say, the “narrative of domination” can only succeed if we believe in it. Perhaps a new (or more traditional) narrative is in order. But, nonetheless, the structuralist in me still wants to believe that there are levels beyond (or beneath) narrative–“things” (both in the ontological and sociological sense) that do not need belief in order to exist–that are more central to the human story. Trying to elucidate those levels is an endeavor for the ages.

                  • Lee Nellis says:

                    You are absolutely right about the inspiration we should take from the history and resiliency that we see from the Haudenosaunee (and other first peoples). I am reading a book from the Australian experience titled “Sand Talk” right now. You might want to check it out. One of my personal quests is to figure out how to say that we must take direction from what the indigenous offers without appropriating it, as we settlers tend to do. A tricky balance.

                    As a practicing Pragmatist, I find Structuralism and Poststructuralism both mysterious (though I find Levi-Strauss worth reading). If there are underlying structures, where else could we possibly find them except in narrative (in myth, really, but one has to be cautious in using that word due to its misuse to indicate falsehoods)? And if those structures (which I do not admit to, but accept to play along) can exist only within the narrative, then are they not always evolving in the flow of the conversation? And are not demands for belief not attempts to throttle the conversation at the point that most benefits those who make the demand? And so, trying to get us back to that same page: Is it not the conversation itself that needs no belief, that just is?

                    We have long since passed the usual bounds of this forum, but I do enjoy the exchange. Thank you!

                    • JB says:

                      Whoops, sorry, Lee! I thought I detected Roland Barthes’ poststructuralism in your last comments (re: “narrative”). To be fair, pragmatism is likely more closely related to poststructuralism than structuralism (which are both impossible specifically categorize themselves). I spend time in language revitalization circles, and the tenets of structuralism inevitably manage to creep in, if not often only as a villain to dispel. You have illustrated very well some of the finer points in that debate, waged between structuralists and poststructuralists and the rest of the world. In fact, one of my favorite thinkers, Dennis Tedlock–though decidedly non-pragmatist–spent his entire career making nearly the same argument: ultimately, it always does come back to conversation.

                      As to whether there can ever be an (epistemic) “end” or everything can only serve as a beginning for yet another conversation–this is a conversation for another time. There are other conversations that need to happen, that are happening, right now. There are even too many conversations, or disguised reiterations of the same conversation. Arguably, globalism is a terrible curse, but (if we’re being pragmatic) maybe it needn’t be only a curse. The past few years has seen the release of more books like the one that you mention than ever before, and many more are hitting the presses right now as we speak (notably, many of those are from Onkwehón:we writers). A very engaging conversation, or episode in an ongoing one. Thank you as well.

  8. Charlie Stehlin says:

    “The edges of these mountains would look a lot like the approaches to the Great Smokies if it were not for the APA. ”

    Have you seen what Rt. 9 looks like Lee from Clifton Park, on up through Saratoga, and up yonder ways into Glens Falls….. It’s only a matter of time before the cement starts pouring right up to the Adirondack line.

  9. William Brown says:

    I believe one of the last APA adjudicatory hearings might have been in 2008 on a proposed large condo development in the Town of Hague at Sabbath Day Point, on Lake George. Fortunately, this project was denied based, in part, on evidence of its environmental damage as well as a large public outcry from citizens who objected to this misguided project by submitting written comments or expressing their views personally at the hearing. Thank goodness the APA at that time had the evidence to issue a negative ruling in that case.

  10. Ralph says:

    Thank you David, for continuing to shine on light on this serious flaw in how the APA conducts its business. Thanks also for citing the Red Rock Quarry at White Lake example as another instance where an adjudicatory hearing should have been held. This is why the Adirondack White Lake Association and Protect the Adirondacks! have filed an Article 78 petition to compel the applicant and APA staff to address community questions and concerns under oath. As you and others have pointed out in these pages, the APA has clearly “lost its way” and needs to return to its mission of protecting the Park.

  11. seymour preston jr says:

    Thank you for continuing to push this issue. Is it the Governor alone, one person, who controls the decision whether to hold a hearing? Are the Commissioners rubber-stampers, unable to act on their own? Is there no electoral oversight. Governor Hochel is so focused on garnering downstate voters that the ADK voters are irrelevant. I would think all ADK Park residents/voters would want management of the Park to be open at least to public comment. But given the importance of the ADKs to New Yorkers of all geographies and stripes, why doesn’t she get it right?

    Regards, Seymour Preston Jr, Keene Valley, NY

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