Thursday, October 26, 2023

Awkward Moments at the APA

Carver Sand & Gravel owns an operation in Ephratah in Fulton County

During the APA’s October 12 meeting, I noted with appreciation the Adirondack Park Agency members who asked pertinent questions about the staff’s proposed permit for Carver Sand and Gravel in the town of Ephratah, Fulton County (Project 2022-0037). These questions and concerns included but were not limited to the proposed dramatic rise in the maximum number of daily truck trips out of the mine (from a maximum of 75 per day to a max of 200 per day).

 

For APA member Zoe Smith the letter from the Ephratah town board in the public comment file stood out to her because it is rare for a town board to raise detailed concerns about an APA project in writing. In this case the town raised issues of public safety and quality of life of neighbors to the mine should the permit be granted. What was the staff response to that detailed town letter in the public comment file, member Smith asked?

An awkward moment of silence followed her question. The staff seemed completely unprepared to address it. The town council letter was not even mentioned in the staff’s slide presentation. That should not have been the case for a mine in Resource Management with a history of violating a prior permit condition. With respect to the dramatic rise in maximum truck trips per day, hours of operation moving from 7 a.m. to 6 a.m. and other concerns, the staff should have anticipated member questions in advance.

 

A letter on town stationery should have been especially flagged for the staff to respond to in advance of the APA meeting and in a proactive presentation at the meeting. I think back to other APA land use and development permits where a local government letter about a project before the APA was noticed by the staff – not necessarily given more weight than other letters, but at least noticed and addressed.

 

Member concerns and questions about updated data and how the company justified the hours of operation and increased number of truck trips at the mine – labeled as “extreme” by several APA members including Art Lussi-  were gaining momentum, sufficient for the staff to urgently ask for a pause in the meeting so that the company could be reached by phone to see if it would be willing to answer the questions and address the concerns. That was done.

 

After a 20-minute recess, APA reconvened to say that the company had agreed to respond to agency concerns at the November APA meeting.  In short, the time clocks on the APA’s decision were halted by the applicant. October’s proposed staff permit with conditions was tabled.

 

That the APA had to recess in the first place so that it could make a last-minute phone call to the applicant granting APA another month to address unanswered questions itself raises big questions.

 

First, given the absence of 2022 data that would justify increased truck traffic in and out of the mine by 2-3 times, why did the staff deem the 2022 application complete in the first place? Why didn’t the staff issue a notice of incompleteness so that the 2022 data and other missing information would be available to the APA members during final permit deliberations?

 

Second, APA staff know the law that only allows the agency to deny a permit after the holding of an adjudicatory public hearing. This part of the APA Act of 1973 has long been in need of amendment so that the APA could deny a permit on the basis that it deems it to have an undue adverse impact on Park resources without holding a hearing, but also without prejudice to applicant’s resubmission of a better designed, approvable permit application, or without prejudice to an applicant’s request for a hearing.

 

That and other needs to update the APA Act aside, staff back in the old days took advantage of the public hearing requirement as necessary to gain critical information about project impacts from their own as well as from applicant and outside experts, and about alternative designs that would have fewer impacts while still accomplishing applicant objectives.

 

My organizations took part in several of those past hearings. Most of them did not take more than several weeks of staff time because they were focused on only the most pressing matters, were run efficiently by staff, and led to more informed permit decisions by the full agency. In other words, the public hearings resulted in what the 1973 law and regulations intended – legally issued findings that a permit with conditions would not have undue adverse impacts, or justified reasons why a permit must be denied because, as presented, it was likely to have such impacts on Adirondack Park resources. The number of such post hearing denials have been vanishingly few. The number with improved project conditions or better alternatives? Quite a few.

 

Unfortunately, since 2011 APA staff have not recommended, and APA has not held a single adjudicatory public hearing about any land use in the Park. Over the past decade, the staff have proven so averse to holding them that they frequently misinform their own members about the broad latitude their own law grants the agency to convene such hearings for the purposes of addressing high degree of public interest, significant issues raised by the application, substantial permit conditions needed to approve, and gaping holes in permit information without which the agency should not be able to reach an informed decision.

 

In the case of Carver Sand and Gravel, as with the case of many other projects, the public hearing criteria were easily met, yet the staff once again took the possibility of a hearing off the table, never even mentioning the possibility. Therefore, when it came time for a decision it relied on the likelihood that few if any substantive questions and concerns about their draft permit would be raised by agency members. When those concerns were raised, and persisted, resulting in the likelihood of a negative committee vote,  it posed an awkward moment, causing a recess and a hurried call to the applicant to halt the agency’s time clock and to give APA another month to have the questions addressed.

 

This is not the way the APA should be led to carry out its responsibilities under the 50-year-old Land Use and Development Plan. After losing in court this year about permit decisions APA made at Lower Saranac Lake and at Lake George, after refusing to convene hearings for many projects with significant and likely adverse impacts, after issuing a 2023 permit in violation of its own Freshwater Wetland regulations, Governor Hochul and the state legislature ought to be asking about and examining all that is going on at the APA, and doing their utmost to improve and strengthen the agency’s law, performance, morale, and leadership.

 

Photo at top: Carver Sand & Gravel owns an operation in Ephratah in Fulton County and has requested an expansion through the Adirondack Park Agency. Photo courtesy of the Adirondack Park Agency via screenshot.

 

 

 

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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.


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15 Responses

  1. Paul says:

    “have an undue adverse impact on Park resources”. This vague and difficult (or impossible) to quantify language is the stuff that keeps lawyers in business.

  2. Elena says:

    “Person sneezes near a wetland – adjudicatory hearing”

    “Butterfly flutters its wings on a cell tower – adjudicatory hearing”

    “Dust lands on the table at a local park – adjudicatory hearing”

    Give. It. A. Rest. Every time Dave, or Peter, or insert some other name writes on here, they run to the term “adjudicatory hearing.” It’s just not necessary each and every time someone wants to do something in the park. Please give it a rest, it’s getting tiresome.

    • Fisherking says:

      Indeed.

    • ADKresident2 says:

      Apparently none of that’s true, since they never have adjudicatory hearings. What is your objection to adjudicatory hearings? How could making decisions based on more information be a bad thing? Maybe the real objection is the imposistion of any use restrictions by the APA.

      • Paul says:

        This of course is not true. They do have them for large projects – for example the Adirondack Club and Resort in Tupper Lake.

      • Elena says:

        Adkresident – I wasn’t referring to hearings being held for such trivial things as listed here, but more making a point that it would only take such trivial things for Adirondack Wild and Protect the Adirondacks to request a hearing. You can’t break an egg in the park without these two organizations asking for a hearing.

        As far as why the APA doesn’t hold them, I am sure hearing is a very expensive, time consuming and resource intensive endeavor and these environmental groups would rather rattle their Sabres than go to Albany and ask state government to increase the agency’s funding and hire more people to do what they are asking. They’d rather complain.

        The hearings don’t do much more than give entities like this a platform to rabble rouse and grandstand. One only need look at the record for the ACR hearing to see that. They got their way though. Sued them into bankruptcy so that another project died on the vine.

  3. Lee Nellis says:

    Thanks for keeping us all informed about the APA’s latest follies.

    But I wonder how appealing to Governor Hochul, who appointed the current ED, is going to help. The Legislature has to be involved, at least ultimately, to make the changes necessary, including requiring a public hearing on every application of significance. But given the Legislature’s inability to make even the simple change of requiring open space development practices, one wonders about the possibility of change initiated there.

    It is a common perception that the APA is “captured” by the local governments of the Park. It is hard to disagree. The agency’s dysfunction is bigger than that, but I find myself asking if there is a possibility that the staff’s disregard for comments from a Town board will have any impact. Perhaps it is time for the Towns to realize that the influence they think (I think they think that, but am willing to be corrected) goes only so far when pitted against an implicit (mostly) commitment to the idea that private property rights at any cost equals economic developent at any cost (or is that vice versa?). And that perhaps the Towns too would benefit from a less political, more professional APA leadership.

    Whether from the Towns or not, though, it seems to me that any transformation of the APA is going to be forced by grass roots action, not by state politics as usual.

  4. It is obvious that Dave Gibson has learned some valuable lessons from his study of the papers at the Adirondack Research Library, especially concerning the “grassroots activism movement” led by John Apperson and Paul Schaefer, and many others. Over many decades they acted as watchdogs, trying to alert the public to those actions being taken ( or not being taken) by state officials and organizations with regard to upholding the New York constitution’s “forever wild” clause. They objected to the logging in the high peaks, fought against attempts to amend the constitution to invade and develop the Adirondack Park’s forest preserve (especially back in the 30s’ when there was an attempt to pass the Hewitt Reforestation amendment, and then the closed cabin amendment. They got help from scores of organizations, including women’s garden clubs and the NY City Women’s Club, plus many national organizations, such as the American Canoe Association and the Sierra Club. David Gibson is carrying on in that tradition, and all of us would do well to pay attention to his observations and his advice. Let’s keep up the pressure against all those who are basically more interested in greed and self interest, rather than in keeping watch over the precious lakes, trees, wildlife, air quality, and the peace and tranquility of wild places.

  5. Bill Ott says:

    Mr Gibson, your excellent article grabbed me by the gravel and begged me to run some numbers.
    200 daily trips “out of the mine” sort of implies –
    200 daily trips into the mine.
    400 trucks in 12 hours comes to 33 trucks per hour.

  6. Mike says:

    Based on the timeline, it looks like the ACR did in the APA!

  7. JD says:

    I think the APA needs to hear from more folks who would be affected by the 2-3 fold increase in mine operations. Do they still use blasting to free the rock from the cliff face? How about local residents being shook awake by blasting at 6AM? Trucks with jake brakes going by at 6 AM? with a public hearing these concerns can be voiced by people directly affected. If the APA Commissioners are relying on only what the staff bring to the table is there a chance for bias or influence being brought to the table? I live 5 miles away and can faintly hear the crushers working. I wonder how it sounds from 1/4 or 1/2 mile away? It sounds as if the Town Board of Ephratah is speaking on behalf of residents. Don’t they deserve an answer? I wonder if Elena lives near an operating mine-a very active one like this one wants to become? Mr. Ott makes a good analysis with the simple math he used.

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