A decision from the Appellate Division last week effectively rejected the Adirondack Park Agency’s long-standing interpretation of its wetlands regulations. I imagine we will be tracking the fallout from the decision for months to come.
That part of the ruling was a clear win for Thomas Jorling, a former DEC commissioner challenging a marina near his Lower Saranac Lake property. But another part of the decision concerning the state’s responsibility to study the carrying capacity of the lake was more of a mixed bag.
On the one hand, the decision sent a clear message to the state that it does in fact have a responsibility to study the lake’s ability to sustain various uses, including motorized boats, calling the state’s failure to do so “wholly unexplained and, indeed, inexplicable.”
On the other hand, the court also ruled that the APA’s analysis of whether the marina would “adversely affect” the surrounding environment was sufficient, regardless of the existence (or lack thereof) of a specific carrying capacity study.
That reasoning appeared to hinge on the fact that the marina developer had the right to replace “in kind” the existing boathouse and dock structures in the same footprint. Since the APA instead garnered numerous environmental protections as conditions of a permit, the court reasoned, it was not “arbitrary and capricious” to determine the permitted project would not have an adverse impact (when compared to the alternatives).
Unsurprisingly, attorneys representing the marina and Jorling read this part of the decision in different ways. Matt Norfolk, representing LS Marina, said the ruling was clear that the state’s failure to conduct a study could not be used to challenge a private project.
“You can’t punish the private sector,” Norfolk said last week.
But Claudia Braymer, who represents Jorling, said she could envision future cases where the lack of a carrying capacity study could be determinative in the final analysis.
Maybe the ruling would have played out differently if the marina was a new project. After invalidating the permit based on the wetlands regulations, the decision’s concluding two sentences read like a cryptic hint that could support either Norfolk’s or Braymer’s view of carrying capacity studies.
“We have considered petitioner’s remaining contentions,” on carrying capacity studies. “Having done so, we conclude that they have either been rendered academic in light of our rulings above or are without merit.”
I guess sometimes academic legal questions become live ones. But I guess the court might also have just found the argument to be without merit if it weren’t so academic.
Photo at top: Sunset on Lower Saranac Lake. Explorer file photo by Mike Lynch
This first appeared in Zach’s weekly “Water Line” newsletter. Click here to sign up.