Thursday, May 16, 2024

APA hearings?

The marina site on Fish Creek Ponds

Groups to APA: Hold a hearing

Five groups — Protect the Adirondacks, the Sierra Club Atlantic Chapter, Adirondack Wild, Adirondack Council, and the Upper Saranac Foundation — on Monday outlined a shared argument making the case for a rare Adirondack bird: An evidentiary hearing. The groups’ stance: The Adirondack Park Agency board should refer a proposed marina expansion on its agenda this week to a rare evidentiary hearing.

The group’s called the proposed marina expansion at Fish Creek Ponds a “radical departure” from the former Hickok’s boat livery that operated at the site for decades.

“As proposed, the marina is likely to have significant adverse impacts on existing aquatic uses, public safety, wetland and wildlife resources, water quality and neighboring private landowners and Public Forest Preserve,” the groups wrote in a statement issued Monday.

The groups argue the project meets the agency’s criteria for holding an adjudicatory hearing — what APA counsel has described as an intensive “trial-like” process that consumes enormous staff and applicant time and energy.

The project’s size and complexity, the degree of public interest and alleged issues regarding impacts to wetlands, boating safety, shoreline conditions and the lack of a study of how much use the interconnected waterbodies can sustain necessitate a hearing, according to the groups.

Last week, I updated you on the APA’s win in the Supreme Court Appellate Division over its decision to bypass one of the adjudicatory hearings before approving permits to use an herbicide on Lake George.

A lower court had tossed the permits granted to the Lake George Park Commission over what it described as a “one-sided” staff presentation, but the appeals court said the agency acted within its domain.

But environmental groups continue to press for the hearings in numerous controversial projects, including this latest bid.

The marina developer, USL Marina, has argued that the upgrades are necessary to improve safety and environmental conditions at the dated docks and that the expansion is necessary to be commercially viable.

But nearby property owners and longtime visitors to the state-owned Fish Creek Campground have commented that the proposal is too big for the area and should be reined in.

APA lawyers have said the use of adjudicatory hearings has dropped significantly (one hasn’t been conducted in over a decade) as agency staff has improved its ability to garner necessary information and changes from applicants before presenting projects to the board. I guess that means agency staff is satisfied with the completeness of the marina application. We know what the environmental groups think. We’ll find out what the APA board thinks on Thursday.

Read about the ruling here.

Lake Champlain from Point Au Roche State Park

Lake Champlain from Point Au Roche State Park this weekend. Stay tuned for an update on the power cable slated to be installed in the lake this summer. Photo by Zachary Matson.

This first appeared in Zach’s weekly “Water Line” newsletter. Click here to sign up.

Photo at top: The marina site on Fish Creek Ponds photographed June 7, 2022. Photo by Zachary Matson.

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Zachary Matson has been an environmental reporter for the Explorer since October 2021. He is focused on the many issues impacting water and the people, plants and wildlife that rely on it in the Adirondack Park. Zach worked at daily newspapers in Missouri, Arizona and New York for nearly a decade, most recently working as the education reporter for six years at the Daily Gazette in Schenectady.

12 Responses

  1. ADKresident2 says:

    Why would the APA default not be holding adjudicatory hearings, particularly on matters where there is a dispute? Yes, it would take more time for both the APA and the applicant and might even be contentious in some cases, but would flesh out the request and the basis for it, as well as ensure transparency in the decision making process. That would all be consistent with the APA’s purpose and the public’s education concerning the basis for the APA’s decisions. The APA’s default should not be to avoid work and draw a curtain around the basis for its decisions.

  2. Paul says:

    Why would the APA default not be holding adjudicatory hearings, particularly on matters where there is a dispute?

    Because it is expensive and time consuming, and we as the taxpayers have to foot the bill. It takes outside experts and lawyers etc. – they don’t do it for free. And, there is always a dispute, somebody who doesn’t want the project.

    It looks like for or this you are talking about an expansion from 71 old decrepit docks to 92 new modern docks. It’s not like it’s some new marina…

  3. ADKresident2 says:

    Isn’t that’s how it’s designed to work? It can be more expensive and time consuming to make the wrong decision and have to undo it later. Better to do it right the first time.

    • Paul says:

      Yes, but in this case it doesn’t fit the criteria. These folks are just abusing this process to try and block a project they just don’t like. It is just a 29% increase in capacity (adding new more environmentally friendly and modern docks). A 25% increase so just 4% less wouldn’t require ANY permit at all. I would think that they can begin and complete most of this project anytime they want. The APA has done its job and followed the law here. This is not like a big new project where you would really want a hearing if there were real potential impacts to mitigate. That is what they are for. After, all the legal fighting and costs involved here the courts will rule in the applicants favor, the APA knows that.

  4. Lee Nellis says:

    My take on this is that, while the expanded marina raises questons that ought to be answered, it isn’t really about the marina. Its about the way the APA is required (or at least believes it is required) to conduct its process.

    Adjudicatory hearings have a role to play in land use decision-making, although I am not convinced the disputes shouldn’t just go directly to court, possibly a specialty court like they have in Vermont. And what everyone says is true: They are time-consuming and expensive. But that isn’t their biggest drawback.

    To “win” in an adjudicatory environment (administrative or court) a party must take a firm position and state it as clearly as possible. Its a confrontation, not a process in which a collaborative outcome, a compromise is easily (if at all) attained.

    So, APA’s counsel is being prudent, maybe a little over the top of prudent in cases like this one, but okay. That’s their role.But the groups bringing the action are also right to be doing what they are doing. The APA process is flawed and apparently the only way to fix it is to generate controversy and litigation. That’s the group;s role, but they are not, IMO, on the rigght trail. Adjudicatory hearings are mostly performative, not productive because they happen only after both sides are cemented into their positions.

    What the APA needs is a process that is not at all unfamiliar. In fact, other agencies in NY – your town, other state agencies – are all subject to SEQR, which allows for scoping and hearings that are upfront enough to make a difference. Likewise, the NY land use statutes under which local governments operate all generally allow for upfront hearings where an applicant, the public, and the community can discuss a potential compromise.

    While its something of a trend these days (part of the turn of both the left and the right toward authoritarianism, I guess), land use decisions need to be made with full transparency and public involvement. I have been involved in doing it for 50 years and, yes, it can be messy! But it is often productive when properly managed and whether a given example produces better outcomes than an administrative process or not, it is democratic, and that is what we ought to be doing.

    • Paul says:

      The hearings are for large projects.

      This one is simply involving a modernization of an old maria and an expansion of 29% so just 4% above where a permit would not even be required under APA law.

      As usual these things get blown way out of proportion by inaccurate articles and comments.

      It is the online crazy world that we all operate in now. All sense of reality and common sense are out the door… But it does keep lawyers and activists busy and with jobs.

  5. Lee Nellis says:

    A story about “large.” I was once the planner for a rapidly growing jurisdiction. We approved hundreds of dwellings, over a thousand total, and hundreds thousands of square feet of industrial and commercial buildings. All of which, I note, were subject to public review that included the non-adjudicatory hearings the APA should be holding. Virtually all of what was proposed is built out now, so the hearings did little damage to developers’ plans, but they did help us protect critical habitat, obtain trail easements, and improve the appearnce of commercial projects.

    BUT, the project about which I listened to the most complaints at that time was a single home. A large home plunked down in a meadow that had offered a quiet, but as it turned out, cherished view to many of the town’s citizens. It complied with the rules. There was nothing to be done about it except to grimace and accept the owners’ disregard for the neighbors (there was plenty of room on the parcel to hide it).

    So, “large” is not, in my experience, very well measured by, say, the number of boat slips or any similarly simple metrics. Large is very much about public perception and about the ability of the agency to respect that. Critical perceptions and comment on the APA will not abate until it demonstrates that respect.

    • Paul says:

      Lee, it sounds like you have an issue with the APA act – the law, not really this permit application. The agencies responsibility it to administer the act. If you want it to be more strict you need to talk with the legislature about changing it.

  6. Lee Nellis says:

    Its been more than 50 years and some of the outcomes (not necessarily this marina expansion) strike me as inconsistent with the spirit of the Act. So, yes, its time to talk about some changes in the Act. And maybe also to revisit the narrative behind it.

    But setting that possibility aside, the Act doesn’t prevent the Agency from using the tools it has at its disposal in a better way.

    • Paul says:

      I agree with all that. My personal take (and apparently the agencies) on this one is that it is a minor project with an expansion that barely requires any permit so a hearing would not be necessary.

      As I have said before, there is nothing that has prevented any outside entity from supplying all the feedback they want to the APA via the normal public input (writing or in person at meetings where this was discussed).

  7. Lee Nellis says:

    It is my observation that democracy requires rituals to sustain it, and public hearings are among those. They show that the idea of listening is honored and, despite the ability to submit comments, it is clear to me that a lot of folks do not believe the APA is listening.

    I have spent many hours providing written comments to agencies, esp, federal ones, and it simply isn’t the same quality of participation. I also don’t think that it usually has the same potentially beneficial results. Just as there is nothing barring the public from commenting on applications, there is nothing barring the Agency from improving its procedures as long as what it does is not inconsistent with the Act.

    I was at a conference in Denver earlier this year and an old friend who was, before retiring to fish, a well-known land use attorney asked me what had happened to the APA. It was once part of the national conversation about land use issues, maybe even a model of sorts. That is no longer true and I think the Adirondacks would be better served by an APA that aspired to return a broader leadership.

  8. Paul says:

    “It is my observation that democracy requires rituals to sustain it, and public hearings are among those.” And, yes a hearing is more in-depth, not sure I would use the term beneficial. We are looking for decisions here based on the facts and the law not on opinions that can be easily swayed by eloquent speeches.

    Again, I totally agree. The question here is still what level of a project rises to the requirement of a adjudicatory hearing. In a perfect world where money and time were unlimited all projects could have this sort of lengthy and expensive process. But we don’t live there. Under current regulations a project that almost doesn’t require a permit is one that seems very unwarranted for a hearing. Under that metric we probably have to switch to your preference, which seems to be that ALL projects require a hearing.

    Maybe your friend in Denver was referring to when the (let’s call them) the more pro-development people were criticizing the APA, that got a lot of news attention! When things like the books on the “Adirondack experiment” were being written. And people were driving around in panel trucks with “abolish the APA” on the side.. Now it seems like it is the environmental activists that are more critical.

    I personally think they are doing a pretty decent job, and are more transparent than they used to be. You used to have to drive to Ray Brook if you wanted to comment. Now you can do it from the other side of the planet virtually. All the permit materials are available for viewing online. Not many agencies allow that sort of transparency and even this one did not in the past.

    You think it has gotten worse I see it as pretty good given what we have. I have gotten a few APA permits for projects in the past and I found them to be very thorough in their process and deliberations. For one I had two guys drive out into the middle of nowhere (the agency guys assigned to the permit and a wetlands biologist) so they could look first had at where and what I wanted to do and how I was going to protect and minimize any damage to the environment (in fact how I was going to improve it).

    I guess we are going to have to agree to disagree. Thanks for the comments.

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