Tuesday, July 5, 2022

More misinformation about APA formal hearings

white lake quarry

Reporter Megan Plete Postol reported on a recent judicial proceeding in Oneida County Supreme Court brought by Adirondack White Lake Association. The lawsuit was brought by neighbors of Red Rock Quarry, a proposed new granite quarry to be located very close to White Lake in Forestport.

The legal challenge was filed this spring because the Adirondack Park Agency in Ray Brook failed to conduct an adjudicatory public hearing that could have, through sworn expert testimony and cross examination, uncovered facts about noise, ground, surface water and other information needed for the APA to render a determination of no undue adverse impact “upon the natural, scenic, aesthetic, ecological, wildlife, historic, recreational or open space resources of the park.”

No hearing about the granite quarry was held by the APA which, after staff review, issued the proposed granite quarry a permit to operate earlier this year.

The reporter’s article quoted the judge and the legal counsel for the APA during the Supreme Court proceeding. Assuming those quotes are accurate, they deserve some critical commentary.

The judge is quoted as saying that “adjudicatory hearings are reserved for when significant legal issues are skimmed over or not thoroughly explored during the permitting process.” With all due respect to the judge, as quoted this is not an accurate or legal criteria for holding a formal hearing by the APA.

Adjudicatory hearings are not “reserved for when significant issues are skimmed over or not thoroughly explored during the permit process.” Not at all, in fact.  There is no language in the APA’s law or regulations that speaks to “skimming over” things during a permit process that would then lead to a hearing.

The Judge in this case should become familiar with the criteria and manner in which the APA conducts formal hearings on a project. They take up 12 pages, an entire section (Part 580), of the APA’s book of rules and regulations that have been in place, with minor amendments, for the past fifty years.

In my more than 30 years of observing the APA, formal hearings were once fairly commonplace. The APA’s regulations about hearings have not changed at all. What has changed is the APA.

Far from being rare occurrences, formal hearings were anticipated in APA law, rule and regulation whenever they were deemed helpful in rendering difficult permit decisions. In fact, APA can never deny a permit without holding a formal hearing.

For decades past, formal hearings were an annual affair. Sometimes several were convened in a given year whenever the Agency staff and members felt that the size or complexity of a particular project demanded one and when the amount and quality of information resulting from a hearing would help APA make its final determination of project approval, project denial or project approval with substantial conditions.

I recall formal hearings about tall communication towers on ridgelines, about herbicide applications on Adirondack lakes, about complex mining projects, about large residential subdivisions. My organizations became parties to some of these. Here is my memory of the process. First, APA staff would recommend holding a formal hearing based on adopted regulatory criteria (see below). APA staff recommendation was approved by the APA board. Formal notice was then given to the applicant and to all potential parties. Dates for sending notice are clear and unequivocal in the regulations. I or my group sought to become a party to an APA formal hearing by petitioning the agency with a letter demonstrating the capacity to participate and to supply information or expertise relative to the project. A hearing officer was assigned to set the hearing rules and schedule, take expert witness testimony, subject that testimony to cross-examination, admit or exclude evidence based on known rules of evidence, and generally conduct the hearing fairly and without prejudice.

Some of these formal hearings took a week. Some took a month. A few took several months to complete.

Why were formal APA hearings commonly held from 1973 until 2011? For the fundamental purpose of creating a formal record of project information needed by the APA to render a final decision whether or not the permit application would create an undue adverse impact upon the Park’s resources. No formal hearing has been held by the APA since 2011. And the APA seems determined not to hold another.

APA Legal Counsel is quoted as saying to the Judge that “the APA does not employ the use of adjudicatory hearings to investigate issues, and that he believes that the issues brought up by the petitioners have already been addressed.”

hearings

An expert witness, right, testifies at the last (2011) formal hearing held by the APA. The law judge presiding over this hearing is at left.

His statement that APA does not employ adjudicatory hearings to investigate issues appears nonsensical to me. The entire purpose of APA formal hearings is to investigate pertinent issues about a project application. APA regulations include these criteria for holding an adjudicatory hearing:

  1. The presence of significant issues related to the criteria for project approval;
  2. The possibility that information presented at a hearing would be of assistance to the agency in its review.

The APA regulations go on to say: “agency staff, while not a party to the hearing, shall have the right to participate fully in the hearing and shall act as an advocate for a full and complete record upon which an informed decision can be made…agency staff shall state at the outset which of the development considerations and other required findings it considers pertinent to the project and shall briefly outline the evidence it intends to present.”

In other words, APA staff play an active role in issue investigation during a hearing whose entire purpose is to uncover and explore issues pertinent to the application. It’s all very clear in the APA’s regulations and past practice. I cannot understand why today’s APA Counsel would refute his own regulations and years of institutional practice and past precedent – and do so before a justice of the Supreme Court.

As to APA legal counsel’s statement that “he believes that the issues brought up by the petitioners have already been addressed,” it is fine to hold that as belief, but he erroneously lends Supreme Court the impression that APA’s board felt that the staff review had been one-hundred percent comprehensive. In fact, several APA members raised issues or questions that staff did not know the answer to. In fact, at least one condition was added to the final quarry permit as a result of that questioning by the APA members.

Of course, dozens of members of the White Lake community felt that significant issues about the granite quarry’s construction and operation had not been comprehensively or adequately addressed by the staff’s review, and therefore felt compelled to go to court to seek a formal hearing. I hope they are successful.

In April, the following group letter was sent to the Adirondack Park Agency. To date and to my knowledge, there has been no formal reply to this. Here is the entire letter.

April 12, 2022

Dear APA Chairman Ernst, Members, and Designees,

The undersigned organizations and individuals 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.

For example:

  • a 75-100 lot resort subdivision in Low Intensity Use in Jay near the Ausable River;
  • a significant mine expansion in Resource Management and Industrial Use adjacent to the Siamese Ponds Wilderness in Johnsburg;
  • a 10-lot subdivision in Rural Use above Lake Vanare in Lake Luzerne;
  • a large concrete boat ramp and retaining wall in Resource Management on the shores of Lake Champlain;
  • a 35-megawatt solar facility in Rural Use, Town of Saranac;
  • A variety of other projects could be cited as well.

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.

During 2022 and beyond, it is of the utmost importance that Agency executive staff, members and designees publicly discuss all adjudicatory hearing regulatory criteria in relation to all large, complex projects with a high degree of public interest so that the possibility exists to bring them to adjudication, and thus to impose substantial conditions, major modifications or, as may be warranted, project denial without prejudice to the applicants.

Thank you very much for considering our concerns.

Respectfully,

Willie Janeway, Executive Director, The Adirondack Council

David Gibson, Managing Partner, Adirondack Wild: Friends of the Forest Preserve

Kate Kurera, Deputy Director, Environmental Advocates NY

Roger Downs, Conservation Director, Sierra Club Atlantic Chapter

Chad Dawson, Board Director, Adirondack Wild, Former Member, NYS Adirondack Park Agency

Photo at top: A sign shows opposition to a proposed quarry on White Lake, in the town of Forestport. Photo by Megan Plete Postol.

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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 Preserve

During 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.




11 Responses

  1. Keith says:

    As a recipient of an APA 2001 Public Hearing that delayed my permit (Lens Lake Log Cabin) approval an additional two years for a total permit-process of three years, I can attest to the absurdity of the process.
    In my case to appease an influential neighbor with many friends at the APA. Richard Lefebre recused himself, Bill Curran did not. Staff did all they could to obstruct my exceeding-conformance project to favor their superiors thus my neighbor.

    NYS taxpayers paid for 5 days of an administrative law judge, two APA attorneys, various APA staff to make their case for permit approval over a 2 year period.

    Total waste of time and money. If a project conforms to APA Law & Regs, their should be no public hearing…no matter the perceived “public interest”.

  2. JB says:

    Thanks, as always. While I understand Keith’s concerns, I think that most of us can agree on the basic premise that sweeping decisions, made quickly and behind closed doors, seldom serve in the best interest of all involved. In fact, without a hearing — without exploring what is gained relative to what is lost — the basic epistemological question will always remain: how do we know that a good decision was made?

    • Boreas says:

      And how do we know all the studies have been done properly without oversight? While Keith may have been treated unfairly regarding a simple log cabin, a mining operation near residences should really be overseen closely. If a mine doesn’t qualify for a hearing, what would??

      • Joan Grabe says:

        Thank you, JB and Boreas ! Of course the only way to achieve perspective on an issue such as a quarry’s effects on it’s neighbors is at an open hearing where both sides present their case. All of us have a story of being unsatisfied with the outcome of an interaction with some official body. But we were able to present our case – successfully or not. I want to know what happens behind the closed doors of the APA. Especially since I have a passing interest in the marina expansion plans near the Fish Creek Campgrounds and other issues. I hope all of us get to know how and why the local authorities resolve these issues in an open hearing.

  3. LeRoy Hogan says:

    Would be nice to get our granite tops locally instead of being forced to go elsewhere for the granite.

  4. Lee Nellis says:

    There is a lot to unpack here, but a couple of observations.

    What the judge wrote about adjudicatory hearings is more or less true in many other contexts. Its what one would expect a judge to say working from general experience. That it shouldn’t be seen that way in this context is both true and an indicator of the need to change the process.

    As I have said before in this forum, adjudicatory hearings were the wrong tool to take out of the box 50 years ago. That they were effective at times is great, but it has long been standard operating procedure (embodied in various state laws, including New York’s) in American land use planning to conduct a properly noticed public hearing on any significant land use change. That’s the approach that needs to be adopted here.

    The complexity of the rules for adjudicatory hearings (which are not far short of those for a trial) are inhibiting to applicants (as noted above), staff, and boards. They force disputants into fixed positions and inhibit (may actually forbid) creative problem solving. Good land use decisions stem from what happens informally when an applicant first walks through the door and from a well-managed public review, not from formal proceedings that take place only after emotion has displaced reason.

    I don’t think it has been mentioned that the residents of the area affected by the quarry could have long ago used town government to create their own land use plan and code, complete with local hearings, sought approval of their work from APA, and been prepared to address this issue locally. Perhaps that would have been wise?

    • JB says:

      Lee, unlike many towns in that area of the Park, Forestport seems to have a relatively (emphasis) robust planning board with some land use planning regs in place. It’s hard to know yet what would amount from the local process in this case given that most of the decision-making so far has deferred to APA and the pending litigation. But local planning boards elsewhere in the Park have not had an exemplary track record when it comes to land use planning and conservation design. When was the last time a subdivision site plan was substantially altered at the behest of a local planning board within the Adirondack Park (as is happening elsewhere, for example, in the Catskills)?

      There are overtures in the APA Act towards the type of local planning acting in concert with regional planning that you mention, but this needs to be tempered by the stark realization that: “Local governments in the Adirondack park find it increasingly difficult to cope with the unrelenting pressures for development being brought to bear on the area, and to exercise their discretionary powers to create an effective land use and development control framework.” In the past, adjudicatory hearings have at least stopped the bleeding where local intervention could not (or, more often, would not).

      Unfortunately, rightfully or not, this top-down approach has fueled the rise of a number of powerful anti-LUP coalitions within the Park (in addition to attracting the ire of national anti-LUP organizations), who believe that, having been largely spared from the ravages of sprawling development seen elsewhere, LUP is an unnecessary evil. But worse, now NYS, despite having some decently sound urban and economic planning objectives for the state as a whole, has become anti-LUP when it comes to the Adirondack Park. There are even town officials who have become so involved with NYS regional development efforts for the Park that they have, at the very least, neglected their most basic local duties (in some cases, constituting outright misconduct). For the most part, a grassroots renaissance of local planning in the Park seems out of the question.

      • Lee Nellis says:

        I do not disagree about the trends of the times or the limited capabilities of the towns. But I have seen very small jurisdictions do good planning. Those who are aggrieved need to be reminded that they had an option. The best option though, and I think you will agree, would be a reformed and effective APA.

  5. Tom Paine says:

    It appears that APA/NYSDEC decisions have long ago lost credibility and legality. After the past two years it appears that all issues and plans within the Blue line should be settled in a court of law. End of story. Too heck with round tables, user group discussions, public hearings, and so on. The old we can all work together and develop a plan is nonsensical. Trusting the other side is a thing of the distant past. See you in court.

    • Dana says:

      Are the courts more trustworthy than any other organization? Maybe in the past. It is now free-market governance with decisions usually going to those with the deepest pockets. Gilded Age Redux.

  6. Colvin says:

    It is astounding that APA has not held a formal hearing on a permit request since 2011. Not a single permit request in eleven years has presented the Agency with”significant issues,”degree of public interest as evidenced by communication in Agency files,” or the “the possibility that hearing information would aid the agency in its review?” Astounding.

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