Posts Tagged ‘APA’

Monday, November 28, 2011

Dave Gibson: Important ACR Testimony Excerpts

Today I select what I consider to be important excerpts from the testimony in the public adjudicatory hearing on the Adirondack Club and Resort. These particular excerpts come from testimony contained in the official hearing record delivered by four experts in the fields of wildlife science, conservation biology, and the ecological sciences.

These experts are Dr. Michael Klemens, Drs. Michale Glennon and Heidi Kretser, and APA scientific services staff director Dan Spada. In future posts, I plan to cite hearing testimony from experts in fiscal and community impacts and economics. The testimony was provided during the 19-day long Adirondack Club and Resort adjudicatory public hearing which spanned the period between late March and late June, 2011.

This testimony is part of the hearing record, which closed in late October. The members of the Adirondack Park Agency must make a determination about the project based solely upon that official record. The members anticipate reaching a decision at their January, 2012 meeting. Their deliberations continue during the APA’s December 15-16, 2011 meeting, which is open to the public.

ACR is the largest subdivision and development proposal to come before the APA in 35 years. It’s comprised of 706 residential units, 332 buildings, a new ski lodge, restaurant, gymnasium, marina, equestrian center, and 15 miles of new roads, sewer, water and electrical lines spread over 6235 mostly undeveloped acres on rugged, forested terrain several miles from the Village of Tupper Lake.

Some of the testimony that I cite is pre-filed written testimony, and some is direct testimony and response to cross-examination during the hearing.

Dr. Michael Klemens, conservation biologist

During the April 27, 2011 hearing in Ray Brook, attorney for the applicant cross- examined Dr. Klemens about how extensively he had reviewed the application. Dr. Klemens responded:

“I looked at the overall layout of fragmentation on the site created by the distribution of the proposed uses, which snake all over the site, which are — basically I call sprawl on steroids. What you call the Great Camps, I call not-so-great camps. They’re basically large scale sprawl. I looked at the interface of the roads and the houses packed onto steep slopes above wetlands basically without any understanding of the biology, the ecology of the site. Yes, those things can occur on the site, but are they in the right place on the site? We don’t know because you haven’t provided us with any kind of information to make an informed planning decision based on science. This site reflects basically the hopes and aspirations of the developer, not any scientific understanding of the site.”

Asked how Dr. Klemens would define the term “ecological footprint,” Dr. Klemens responded on April 27 as part of the following Q&A:

“It’s the zone of impact and influence …– which will disrupt the
environment writ large by a development. You can put — for example, …– a road is a great example. A road is a rather linear impact. It has a cleared area. It has swales or underdrains, and that. But the impact of a road, depending on the intensity of its traffic — and there’ve been lots of studies on this — the impact can extend a quarter to half a mile on each side of the road through road mortality, noise, and disruption. So that’s what impact analysis is — to understand how a layout on any development project or any use will actually spill over through lighting, through noise, through all those other variables into the ecosystem.”

Q. In looking at the materials that you did review concerning this
application, can you describe in a little bit of detail what you perceived in your expert opinion to be the ecological footprint of this project?

A. It’s extremely large. I haven’t calculated, but it’s large because of the amount of roads and the amount — and the way the development is spread across the site.…– it’s a fairly large footprint. And again, that footprint will vary dependent upon also the species. The species respond — if you’re talking about wildlife, they’re responding at different scales. Birds respond at a different scale to amphibians, to a different scale to area sensitive carnivores. So it’s not — the impacts are at different scales. But this is a fairly spread out development. I mean basically to me …– it is sprawl. It is sprawl — the Great Camps are what I consider very, very large lot residential subdivisions in a sense. They’re very large. There’s one that’s actually – maybe approaches what? A thousand acres? But these things generally –…– it’s not unlike many suburban developments. These large dispersed developments give people the illusion …– of greenery and ecological integrity. In fact, they spread the impacts out with a huge amount of edge effect and a huge amount of impact. And — … that’s why you want to think about trying to make it more compact. And we heard excellent testimony yesterday about how making the development more compact would — … meet a variety of objectives.”

“There are large zones of influence on wildlife which will be disrupted by the project. People look at wildlife. They think wildlife moves in corridors. Wildlife moves across the landscape almost like sheet flow of water. There’s movement all through the landscape. And that continues for some species, less effectively in a logged landscape, but it continues, and there’s recovery. Once you put on a hard landscape of roads, development, and other amenities, you fragment that sheet flow of wildlife and organisms across the landscape.”

“I would anticipate based on my rapid amphibian assessment that there would be at least fifteen species of amphibians breeding on the site. For their small size, amphibians pack an ecological wallop because they control so much of the energy transfer in and out of ecosystems. Amphibians are bi-phasic, meaning that they breed in vernal pools and move to uplands the rest of the year. Wetland protection alone will not protect these species. The habitats of these animals are linked to uplands.”

Drs. Michale Glennon and Heidi Kretser, ecologists for the Wildlife Conservation Society’s Adirondack Program in Saranac Lake

Asked whether the proposed ACR would create an undue adverse impact on Resource Management lands, Dr. Glennon answered “Yes.” She wrote in prefiled testimony:

“An alternative design which reduced the spatial extent of the development associated with the great camp lots would have a much higher likelihood of reducing negative impacts to wildlife.”

“Biotic integrity is very likely to decline on the project site, and will decline more so than it would if development were primarily directed at the Moderate Intensity lands within the site.”

ACR is “likely to result in an increase in human-adapted, generalist species, with a concurrent decrease in those species which are more specialized and most likely those which are rare in New York State.”

“Cumulative impacts are significant.”

“Those species which tend to be negatively impacted by residential development are those which the APA Act intends to protect, such as species which are generally rare, many of them restricted to the Adirondack Park within NYS.”

“The proposed ACR development will negatively impact the majority of large forest blocks present on the RM lands because the large lot sizes associated with the great camp development result in the sprawl of homes and associated roads and driveways across a large proportion of the site, and in large core forest blocks being divided into smaller areas.”

“Among rare songbirds in NYS, more than half are forest birds and the majority of them are boreal and conifer specialists which are confined to the Park within NYS…They are iconic of the region, they are rare..and they are specialists on boreal and core forest habitats. Because we know they occur on or near the ACR property, the project will impact Key Wildlife Habitats.”

Asked whether there would still be undue adverse impacts even if the large eastern Great Camp lots were on “substantial acreages,” Dr. Glennon replied on June 24 as part of the following Q&A:

“Yes, I think it’s possible.”
Q. And based on the current state of the science?
A. Yes.
Q. Would the impacts from those eight houses, if they were located on resource management lands, be significantly reduced if they were located so that their zones of ecological impact — I believe you called it — overlapped with each other and they were on short driveways close to a public road?

A. Yes, very definitely. And there’s probably lots of different ways in which they can be condensed – with fewer impacts on the landscape.”

Asked if the project as designed met the basic purposes of Resource Management lands, Drs. Glennon and Kretser both replied “No.”

Dr. Kretser wrote:

“The project as designed does not meet the basic purposes of RM lands. As evidenced by my colleague’s testimony, it does not protect the delicate physical and biological resources. The proposed project does not encourage proper and economic management of forest because the entire property is divided into smaller parcels…The proposal does not maintain the unique character of the Adirondack Park. The number of residential structures being proposed…represents more than have been added to the majority of townships in the park in the years between 1990-2004.”

Daniel M. Spada, biologist and staff director of NYS Adirondack Park Agency’s resource analysis and scientific services division

Asked on June 23 about the impacts to natural resources, and whether alternatives could be developed that avoided those, Mr. Spada replied:

“My current concerns on the resource management parcels, both on the large Great Camp lots and the smaller Great Camp lots is that those impact zones have not been collapsed. They haven’t been overlapped to the greatest extent possible, in my opinion. There are still some areas, I think, where driveways can be shortened, dwellings can be moved closer to roads, to existing roads, and that sort of thing.”

Mr. Spada was then asked “Are there other modifications that you think could reduce the impacts?” He responded:“Certainly. A reduction of the number of units.”

Q. Reduction of which units would you recommend as reducing the impacts?

A.”If you look at this map, Exhibit 244, and the resource management areas, it becomes been pretty obvious where there’s a high density of units in a given area. For instance, with the west face expansion, with the next seven hundred and fifty foot zone, it — it pretty well blocks out that area as far as being of utility for wildlife habitat. So that might be a spot where either units could be reduced in number or they could be reconfigured…I think we need to balance the number of units, the configuration of the units, and resources on the project site.”

Q. And to your knowledge, were those types of alternatives evaluated by the sponsor?

A. Not to my knowledge.”

In his pre-filed testimony, Mr. Spada wrote:

“While I agree that existing development and use of the project site already affects wildlife habitat, in my opinion the proposed project would increase the significance and duration of the impacts…the impacts from the changes to the existing roads in amount and seasonality included increased levels of habitat fragmentation and direct wildlife mortality.”

“The Great Camp Lots are arranged across the landscape in a relatively uniform configuration and the three-acre development envelopes are relatively widely separated from each other as in classic exurban development. To adequately protect the forest resources, the development should occur in a configuration that reduces impact zones from the development by overlapping them.”

Mr. Spada goes on to define Ecological Impact Zones (EIZ), assess the extent of impacts on wildlife, and discuss alternatives to the ACR layout. He writes:

“When the actual footprint and its EIZ for the components of this project are considered, the amount of wildlife habitat that would not be impacted by the project is considerably less than the amount of open space reported by the Project Sponsor…Over the entire site, 63% of existing wildlife habitat will be preserved.”

“In my experience this process (of identifying alternatives) can be short-circuited by identifying a preferred alternative prior to conducting the analysis. That is what has occurred in the case of this proposed project. In my opinion, the analyses noted above do not constitute a true alternatives analysis. Different scenarios were not described and impacts were not compared…In my opinion there has not been an organized and rational discussion of reasonable, potential alternatives.”

“Good design collapses and overlaps the zones of impact from the development activities to minimize negative effects…The twenty-seven small Great Camp Lots in RM are not clustered as tightly as possible, nor are their zones of impact overlapped to the greatest extent possible.”

“One alternative would be to eliminate the eight large Great Camp Lots east of Simon Pond, and reduce the size and spatial spread of the smaller western and eastern Great Camp Lots in RM. It’s possible under such a scenario that the eight large Great Camp Lots eliminated from east of Simon Pond could be relocated closer to the small eastern and western Great Camp Lots and closer to the ski resort. This would reduce road mileage and infrastructure costs, minimize loss of open space, minimize habitat fragmentation and allow for continued effective sustainable forest management east of Simon Pond. This alternative scenario, although suggested by Agency staff, was never proposed by the Project Sponsor nor was it evaluated to the same level as the existing proposal.”

Asked whether he agreed with the project sponsor’s contention that the area is currently highly fragmented by logging activity and the proposed development will decrease habitat fragmentation because logging activities will cease, Mr. Spada replied:

“No. The broad statement about the current state of the property is not supported by data and the conclusion that habitat will be improved is not justified by current research or scientific understanding. Logging disturbances are temporary, whereas structures and roads are permanent. Logging disturbances are also periodic and on discrete sites within the property, not constant and evenly distributed. There is one major logging road through the part of the property east of Simon Pond. The road is and will remain unpaved. It is used sporadically and traffic volume is low. It is unclear whether the proposal to access the eight larger Great Camp Lots on a year round basis has potential for greater impact than existing road use by two hunting clubs with many members on a typically seasonal basis.”

“Based on my experience and my review of recent research concerning habitat fragmentation [Exhibit 90, APA hearing staff response to Protect the Adirondacks, Discovery Request, Item 11: Glennon and Porter (2005) Trombulak and Frissell 2000, Hansen et al. 2005)], it is my opinion that bird community biotic integrity is not influenced by forest management as generally practiced in the Adirondacks. I believe that biotic integrity does respond positively to roadlessness and negatively to development. It is my opinion that long roads dividing undeveloped areas are of concern for fragmenting wildlife habitat. These impacts can be mitigated by minimizing the length, width and frequency of use of the roads and locating them near the periphery of undeveloped blocks of land. In reviewing this proposed project, Agency staff have asked the Project Sponsor to consider modifications to the proposed project and alternatives to the proposed project that would minimize these impacts.”

Photos: Above, from Mt. Morris looking at Tupper Lake; below, from Mt. Morris looking toward the Village of Tupper Lake.


Saturday, November 19, 2011

Adirondack Wild: ACR Project ‘Sprawl on Steriods’

What follows is a recent press release from Adirondack Wild: Friends of the Forest Preserve, a not-for-profit, member supported organization devoted to wilderness and wild nature. Adirondack Wild seeks to advance New York’s Forever Wild legacy and promote policies and land stewardship consistent with wild land values through education, advocacy and research. Adirodnack Wild has been among the most vocal opponents to the Adirondack Club and Resort project now under review by the Adirondack Park Agency. The group argues that the resort development “threatens to undermine 38 Years of Adirondack public policy to preserve backcountry for forest management and open space recreation”. What follows is a press release issued by Adirondack Wild, in its entirety.

This Thursday, the NYS Adirondack Park Agency (APA) began its review of the adjudicatory hearing record of the proposed Adirondack Club and Resort (ACR) near Tupper Lake. That review is expected to take several months, and poses a severe test for APA Chairwoman Lani Ulrich and Governor Andrew Cuomo.

The test is whether APA commissioners will seriously examine the public hearing record, honor their statute, and the APA’s past track record for addressing similar large subdivisions. If the commissioners do all three, they will deny a permit for this damaging, illegal and precedent-setting project.

ACR is the largest subdivision and development proposal to come before the APA in 35 years. It’s comprised of 719 residential units, 332 buildings, and 15 miles of new roads, sewer, water and electrical lines spread all over 6235 mostly undeveloped acres with sensitive water resources on rugged terrain several miles from Tupper Lake in the heart of the Adirondack Park.

As a party to the hearing, Adirondack Wild: Friends of the Forest Preserve is asking the APA to deny the project a permit without prejudice to the applicant’s resubmission of an alternative, conservation design which would be compatible with the conserved character of the Adirondack Park and would minimize risks to local taxpayers and service providers.

“The Adirondack Park Agency has served as an institutional advocate for the protection of large tracts of private forest land since 1973,” stated Adirondack Wild’s Dan Plumley. “This is fully in keeping with the APA Act’s requirements for the park’s back country lands. The ACR project, however, if approved in its sprawling, fragmenting design would drastically change all that. If approved during Governor Andrew Cuomo’s watch, this one project would radically upend the protection of the park’s open space resources that all other Governors before, including Governor Mario Cuomo, sought to protect.”

“The 125 conditions listed by the APA hearing staff do not make this an approvable project,” added Adirondack Wild’s David Gibson. “They do nothing to materially alter the subdivision design, or to protect a large contiguous block of the backcountry, or to avoid many undue adverse impacts on the Park’s sensitive natural ecosystems, water resources and iconic wildlife.”

The adjudicatory hearing record is replete with evidence that ACR will cause undue adverse impacts to the Park’s natural resources, and undue financial risks to the community, including:

– ACR is deficient and defective in its required survey of biological resources.

– Wildlife characteristic of the Park, but either uncommon or not found elsewhere in NYS would be seriously impacted.

– ACR violates the purposes, policies and objectives for land classified Resource Management, 77% of the project site.

– ACR is unmarketable as presented, speculative, fails to take its competition into account, can not be completed as projected, understates fiscal vulnerabilities to the community and overstates employment and economic benefits.

– The application fails to present meaningful alternatives, as required by the APA regulations.

Adirondack Wild wrote in its closing statement: “Not once in our professional experience has the APA contemplated permitting 82 new principal buildings, and associated roads, driveways (some as long as half a mile), guest cottages, outbuildings and infrastructure spread all over 4800 acres of Resource Management land…A permit for APA Project 2005-100 risks violating the fundamental purposes and objectives of Resource Management…constituting well over a million acres of the Park’s private backcountry.”

In its closing statement, Adirondack Wild described seven large-acreage subdivisions reviewed by the APA between 1988 and 2009. These were:

1. Patten Corporation, 1988-89
2. Butler Lake, 1991, APA Project 89-312
3. Veteran Mountain Camp, 1992
4. Whitney Park, 1996, APA Project 96-138
5. Oven Mountain Estates, 1995, APA Project 91-110
6. Diamond Sportsmen’s Club, 2001, APA Project 2001-217
7. Brandreth Park Association, 2009, APA Project 2007-117

All of these projects were located either on Resource Management or Rural Use land classification. All were substantially reconfigured or modified by the APA as a result of information revealed through public hearings or staff review. All ensured that large, contiguous forest acreages were preserved for open space recreation and forestry, and all concentrated housing within one relatively small area on the project site. These past projects reveal an APA responsive to its legal mandate to protect areas which the legislature directed to be reserved largely for open space recreation and forestry in order to conserve the special character of the Adirondack Park.

The Adirondack Club and Resort application stands in stark contrast with these past projects. None of the proposed “open space” is contiguous, and large housing developments fragment natural resources by spreading across all 6200 acres, making forest management infeasible, hunting impossible, and threatening those species of native wildlife which require large, undeveloped blocks of forest. Resort housing is not concentrated where the law says it belongs in the Moderate Intensity Use areas near the Big Tupper Ski Area. Furthermore, there is no adequate wildlife inventory or assessment. A respected conservation biologist, Michael Klemens, testified at the hearing that “the club and resort is classic sprawl on steroids. It spreads negative ecological impacts out across the landscape. It is a train wreck resulting from a process that does not allow for understanding natural systems in the first place.”

Hearing evidence also showed highly inflated sales projections. The application alleges that annual sales of raw forest lots in Tupper Lake would exceed those in well-established Stowe, Vermont. An independent ski and resort development expert, David Norden, said the project is founded upon the applicant’s promises and “does not possess the primary characteristics of resorts most likely to succeed as we come out of the recession.” With sales likely to fall well below projections, Norden and others said the tax revenues projected to be reaped by local taxing districts are also likely to fall well below the applicant’s projections. Investment in Big Tupper Ski Area, the most broadly supported local objective, has been relegated to latter phases of the development. Funding for project infrastructure and payments in lieu of taxes also remain highly problematic aspects of the proposal.


Sunday, November 13, 2011

Final Deliberations of ACR Project to Begin

The Adirondack Park Agency (APA) will hold its regularly scheduled monthly meeting on Thursday, November 17 and Friday November 18, 2011 at APA Headquarters in Ray Brook, NY. The meeting starts at 9:00 AM. The normal monthly meeting agenda is changed to focus on the Adirondack Club and Resort project. The meeting will be webcast live. In addition, the public is invited to view the webcast live in Tupper Lake at The Wild Center.

This month the Agency will begin a three consecutive monthly meeting cycle to deliberate project 2005-100, the Adirondack Club and Resort. This residential/resort project is proposed for lands in the Town of Tupper Lake, Franklin County. The Board will review the project at the November 17-18 meeting, December 15-16 meeting and the January 19-20 meeting. A decision is expected at the conclusion of the January meeting.

Executive Director Martino said, “The review of the Adirondack Club and Resort project has drawn significant public interest. The Agency is very thankful to The Wild Center for their generous offer to allow the general public to view the webcast at the Natural History Museum in Tupper Lake. Given space limitations at APA Ray Brook headquarters, we encourage the public to take advantage of the opportunity to watch the webcast in Tupper Lake.”

On Thursday morning November 17 the Full Agency will convene at 9:00. At the start of Project 2005-100 deliberations, Executive Director Terry Martino will provide opening remarks followed by Advice of Counsel.

At 10:15, the Board will hear the project description followed by Board determinations on appeals of the Administrative Law Judge decisions rendered during the Adjudicatory Hearing.

At 12:30, the Board will review the Order for Project Hearing and discuss hearing issues ordered by Administrative Law Judge O’ Connell.

At 12:45 the Board will begin to review the record and deliberate the hearing issues. Thursday’s meeting will conclude at 5:30PM.

On Friday morning at 9:00, the Board will reconvene to continue working through the hearing issues. The Friday meeting will conclude at 3:00PM.

See the November meeting agenda for the time schedule and hearing issues descriptions [pdf].

The Agency’s Public Comment Policy does not allow any public comment related to matters before the Board for action. Therefore, during the three consecutive meetings planned for the Adirondack Club and Resort project, the Agency can not accept any public commentary on Project 2005-100.

The Agency requests that anyone planning to attend the November meeting at the Agency’s Ray Brook headquarters please RSVP to Deborah Lester at 518-891-4050 by November 16, 2011.

People interested in viewing the webcast at the Wild Center are encouraged to contact Sally Gross at 518-359-7800 extension 116.


Saturday, November 12, 2011

Spiegel House in Lake Placid Comes Down

The final curtain has dropped on the seven-year-long legal drama centered on a high-profile residence overlooking Lake Placid in the Town of North Elba. They are bringing down the house. In this case, literally.

The structure, owned by Arthur and Margaret Spiegel of Plattsburgh, was built on the Fawn Ridge development—at the head of the former Fawn Ridge ski slope—on Algonquin Drive starting in late 2004. As the house neared completion in 2005, it ran afoul of the Adirondack Park Agency. The Agency charged the builders with violating three provisions of the original permit for the development: building height, proximity to a slope, and vegetation clearing. The case proceeded to court while the incomplete structure remained standing, shuttered with plywood.

In August of last year, Essex County Supreme Court Judge Robert Muller rejected the Spiegel’s claim that the APA engaged in selective enforcement in the case, exhausting the family’s last legal recourse. A dispute over securing a local demolition permit delayed the building’s ultimate demise for the past year.

The first snow of the season in North Elba, which ordinarily highlights the roofs of the residences along the ridge line, instead highlighted the initial stages of demolition late this week. Chris Knight reports the complete history of the case at the Adirondack Daily Enterprise.


Monday, November 7, 2011

Fred Monroe: Economic Councils Need Coordination

What follows is a guest essay by Frederick H. Monroe, Executive Director of the Adirondack Park Local Government Review Board (LGRB). The LGRB was created by the Adirondack Park Agency Act “For the purpose of advising and assisting the Adirondack Park Agency in carrying out its functions, powers and duties.”

Through his vision and leadership, Gov. Andrew Cuomo has offered to the communities of New York a major opportunity – with the potential for large rewards: The chance to set our own economic agendas, regionally, with the ten Regional Economic Councils. And, initially, a piece of the $200 million in state funding that goes along with them. » Continue Reading.


Monday, October 24, 2011

Dave Gibson: ACR Myths and Impressions

As Brian Mann recently reported on North Country Public Radio, Adirondack Park Agency (APA) commissioners recently toured the Adirondack Club and Resort (ACR) site. In addition, parties to the hearing have less than a week to make any final reply to the closing statements or legal briefs. In November, Adirondack Club and Resort’s public hearing record will close, and be delivered to APA. This winter, the commissioners will have to render a decision on the application based on that record, and only upon that record. Eight years of pre-hearing review and debate will reach some kind of conclusion.

For those unfamiliar, ACR is a resort proposal comprised of 719 dwellings in 14 separate areas proposed to sprawl across 6200 acres a few miles southeast of Tupper Lake Village, on the slopes of Mount Morris above Tupper Lake and Lake Simond, and just west of Follensby Pond. The subdivisions are proposed for 4800 acres of lands classified by the APA as Resource Management (the most protective land use area under the APA) and 1200 acres of lands classified as Moderate Intensity Use, with a few hundred acres classified as Low Intensity Use. This is the largest second home development proposal to come to the APA since the mid-1970s.

In future posts, I may focus more on the ACR hearing record, but for now I write about several personal impressions, as well as myths about the hearing and the APA law.

Impression 1: All of us involved in this hearing had the privilege of appearing before a truly competent, unbiased, helpful law judge in control of the proceedings, Daniel O’Connell of the NYS Department of Environmental Conservation’s Office of Hearings and Mediation Services. For newcomers to a full-blown adjudicatory hearing, Judge O’Connell regularly coached and talked parties not represented by lawyers through our frequently awkward efforts to cross-examine witnesses. Sometimes, he suggested how we could reword our questions to avoid objection. He was assiduous about maintaining the record and exhibits, reasonable about the hearing schedule, insisted upon decorum at all times, patiently listened to all motions and explained his rulings. Most significantly, he gave all parties an equally liberal opportunity to present evidence, admitting into evidence many items that opposing lawyers argued should not be in his effort to assure the APA commissioners with as full a record as possible.

Impression 2: My colleague Dan Plumley and I have watched the APA closely since 1987, and observed past agency staff developing a hearing record. Therefore, we were regularly surprised – and occasionally shocked – by the premature lengths agency hearing staff went in this hearing to argue that various draft conditions on a permit would mitigate demonstrated or potential adverse impacts of the ACR. One day early in the hearing, the agency hearing staff member seemed less interested in what a witness had to say about actual or potential visual impacts of the subdivisions, and more interested in how draft staff conditions had already addressed the problems. How could this staff person know to propose a solid mitigation measure if he wasn’t completely listening to the witness? Wasn’t developing the hearing record more important than presenting draft conditions to a permit so early in the proceeding before the evidence was presented? Isn’t the agency by law and regulation supposed to avoid and minimize impacts before it simply accepts them and attempts to mitigate the damage? I know that the hearing staff are not offering any recommendation to the commissioners as to whether or not to issue a permit, a permit with conditions, or a denial. I also realize that some of the proposed conditions may constitute effective mitigation. However, hearing staff appeared overly eager to condition a defective application and bend to the project sponsor’s aspirations during the proceeding, and even in their closing brief.

Myth 1: APA balances environmental with economic issues. Some media and project proponents portray the 1973 APA Land Use Plan as a balance between resource protection and economic benefits. It wasn’t, and it isn’t. The law’s section 809 states that the agency, in rendering a determination, must find that a given project “would not have an undue adverse impact upon the natural, scenic, aesthetic, ecological, wildlife, historic, recreational or open space resources of the park, or upon the ability of the public to provide supporting facilities and services made necessary by the project, taking into account the commercial, industrial, residential, recreational or other benefits that might be derived from the project.”

There is a vast difference between taking potential benefits into account, and a legal obligation to balance two very different missions. APA’s is an environmental mission, not a balancing act. The courts have ruled this way for decades. In fact, in Association for the Protection of the Adirondacks v. Town Board of Tupper Lake (3d Dept., 2009), the appellate court wrote that in contrast with the State Environmental Quality Review Act, or SEQRA, “the APA…is not charged with such a balancing of goals and concerns but, rather, is required to ensure that certain projects ‘would not have an undue adverse impact”, etc. “Clearly by placing environmental concerns above all others, the APA’s mandate is more protective of the environment than that embodied within SEQRA.”

Myth 2: The decision by the APA in late 2006 to deem Mr. Foxman’s application complete somehow legitimizes all of the application’s data and information. The applicant argued this all the time during and long before the hearing. It is wrong. The application is a statement about goals, desires, and aspirations. It is an allegation, nothing more or less. The hearing is intended to subject those assertions and allegations to expert scrutiny and the rules of evidence. Those rules say that an applicant must present experts whose testimony is competent, material and relevant. The project sponsor had better come up with experts who can competently and materially defend the allegations in the application, or he or she fails to meet their burden of proof, which leads me to my 3rd myth.

Myth 3: Since Mr. Foxman’s application was deemed complete, and because his hearing lawyer was schooled in the law (he actually was the APA Executive Director at one time), the burden of proof is on other parties to show how the application may fail to meet the statutory and regulatory requirements of the APA. Wrong. The burden of proof is squarely on the applicant. “The burden shall be on the project sponsor to present testimony concerning the matters alleged in the application (emphasis mine)” (Section 580 of APA Regulations). Mr. Ulasewicz tried to switch that burden many times during the hearing, often attempting unsuccessfully to intimidate witnesses about their knowledge of APA law and regulation. “Has so and so expert read the Act?” he would ask. “If he had, he would know that residential development is an allowed use of Resource Management,”etc. Adirondack Wild’s expert, who was a conservation biologist, pointed out that he was not retained to debate whether the Act allows development, but to present evidence about how and where the location, scope and intensity of that development could impact sensitive natural resources.

To go one step further, even an impartial observer – and I readily admit to not being one – would have noticed how poorly Mr. Foxman’s team met its burden of proof about the alleged tremendous economic benefits of the ACR, its alleged vast sales and tax potential, and its alleged immaterial burdens on the community. ACR’s so-called expert witnesses in these arenas often were unfamiliar with the application, or where the data in it came from, or could not disclose material and relevant sources to back up their arguments. I may return to the hearing record in future posts.

Photos: Above, outlook from summit of Mt. Morris, Cranberry Pond and Lake Simond in distance; Below, scene from the hearing in Ray Brook, Judge O’Connell at center.


Thursday, September 22, 2011

Future of the Adirondacks Panel Discussions

A plan to reinvent the Adirondack Park Agency and revitalize communities that appears in the October 2011 issue of Adirondack Life has generated discussions, letters to editors, blog posts and op-ed pieces. “The Other Endangered Species” by Brian Mann has sparked debate in all corners of the six-million-acre Adirondack Park and beyond.

To continue dialogue on political, economic and quality of life issues raised by Saranac Lake-based reporter Mann, Adirondack Life is sponsoring two panel discussions that are free and open to the public. » Continue Reading.


Wednesday, September 7, 2011

Dave Gibson: Make DEC, APA Part of the Solution

It is heartening to know that Governor Cuomo has twice visited Keene Valley, and other Adirondack communities so hard hit by the hurricane. And to see that Rt. 73’s rebuilding in St. Hubert’s, and along its corridor to Lake Placid has become a high state priority. Clearly, the Governor is doing his utmost to release emergency aid for homes, businesses, roads, bridges and other critical needs.

I am puzzled, however, by the instinct in this Governor to order that environmental permits from agencies like the NYS Department of Environmental Conservation and Adirondack Park Agency be waived. Governor Cuomo announced August 30 that “government needs to do all it can to help devastated communities and homeowners get back on their feet,” but that doing so also means that government must “get out of the way and allow for quick rebuilding and restoration.”

It is as if those DEC or APA permits are fifty-foot high obstacles to getting reconstruction or restoration work done, and have absolutely nothing to do with the quality, effectiveness or durability of the work. It is as if DEC and APA field personnel want merely to push papers as obstacles to cleaning up and restoring the communities in which they and their families also live and work. It is as if government is there to only throw money, but not good, experienced minds, at emergency situations. It is as if the quickest action in an emergency is assumed to be the best action.

I disagree with those premises. I don’t think recent history in the Gulf of Mexico oil spill would suggest that the quickest action in an emergency is always the best action. Both DEC and APA staff, for instance, have demonstrated an ability in the past to issue permits from the field, and rapidly in emergency circumstances while influencing decisions which, from an environmental, engineering, economic and other perspectives may save time, money, labor and environmental quality in the short and longer-term. For example, emergency work done in a stream or river bed, or along its banks can be done in ways which appear to help the situation in the short-term, but which actually make matters far worse downstream in the mid or longer-term. Both DEC and APA, as well as the Ausable River and Boquet River Associations and others, are trained and knowledgeable in how rivers work in general and particular (fluvial dynamics), enough to offer practical as well as prudent permit advice which addresses both the immediate and longer-term problem. Where and how to reconstruct may not be as much about butting heads as it is about adding heads from varying disciplines to reach better decisions. APA and DEC staff should be part of that mix.

Of course, Governor Cuomo and his aides might have thought that there are so few DEC and APA regional permitting staff that it would be near impossible to get field involvement or permit decisions made in a timely fashion to address the emergencies across DEC Region 5. If so, I think that sells his own state personnel short. The efficient teamwork at DEC Region 5 and at the APA has been tested often by storms of all kinds in this and past decades, and performed remarkably well – and there has never been a decade I have seen where DEC or APA had enough staff – and there never will be one.

Furthermore, local governments and agencies attempting to reconstruct want clarity about what is required or expected, as much as any regulated business wants to know what is expected of them. The Governor’s announcement of the waiver of permits may have the unintended consequence of injecting confusion into an already confused situation. It cautions that reconstruction, restoration and other work should be sensitive not to unnecessarily harm or damage natural resources. For instance, would a town supervisor or engineer find clarity or confusion in the following words contained in the Governor’s press release:

“Permitting for construction and repair projects in these areas is suspended. When possible, work should be undertaken in consultation with the DEC to ensure that the project will be carried out in a manner that will cause the least adverse impact to natural resources. To consult on environmental impacts in the wake of Hurricane Irene, individuals and businesses may contact the Regional Environmental Permits Office.”

Local government might be forgiven if it misinterpreted these words as “DEC will get out of the way, but rest assured, I had better call them, they sure as heck won’t be calling me, but their eyes will be burning into the back of my head.”

Wouldn’t it better to have the clarity and certainty of regulators working in the field with the authority to both consult on difficult restoration and reconstruction work and to issue field permits for reasonably well thought-out solutions that take environmental conditions into account?

The Governor’s statement releasing communities in this emergency from the burdens of government regulation perversely also contains the following regulatory language:
“In an effort to keep overall cleanup costs to a minimum and to reduce the overall impacts from the disaster debris it is important that those conducting the cleanup be mindful to separate out those waste materials which are benign or exempt from regulation, such as tree branches and limbs, from other more environmentally concerning debris during the cleanups.
Care should be taken to set aside such materials as household hazardous waste, gasoline containers and propane canisters and other regulated solid wastes that would require special handling.”

In general, I think that waiving environmental permit requirements in an emergency like this in the Adirondack Park, with all the cautions and caveats thrown in, is

• unnecessary to getting good work done reasonably quickly

• insulting to knowledgeable, experienced DEC and APA regional permitting staff

• confusing

• conducive to making quick decisions that may have negative consequences

• inimical to a place as important as the Adirondack Park

I hasten to add that I am ready to be proved wrong or ill informed, and that DEC and APA staff are actually in the field helping their local counterparts where help is needed or requested, with or without permits in hand. I also hasten to add that the Governor’s press release also may have contained helpful information that “DEC is also providing general assistance and guidance to help local communities address damaged facilities, debris disposal and solid waste. DEC has developed guidance for storm-related waste from damaged areas. Responsible parties should contact the DEC regional office for specific project applications.”


Monday, August 29, 2011

Dave Gibson: Stubborn Facts About Lows Lake

Facts are stubborn things. So are traditions, and patterns of use. These all lay at the heart of the recent Lows Lake court decision in Albany County Supreme Court which upheld a Wilderness classification for Lows Lake and the Bog River Flow.

Verplanck Colvin, the great Adirondack explorer and surveyor, came to what is now Lows Lake in the late 1890s, just before inventor A.A. Low dammed the Bog River in two places as part of extensive industrial enterprises that lasted less than 15 years. Colvin’s survey of 1898-1899 was his last (published by the Adirondack Research Center of the Association for the Protection of the Adirondacks in 1989).
» Continue Reading.


Monday, August 8, 2011

Adirondack Park Population Growing Faster Than NYS

In the many discussions concerning the present and future of the Adirondacks, one of the foundational assumptions is that the region is being held back by the controversial Adirondack Park Agency (APA). An analysis of population data shows something quite different: the Park’s population is growing at a significantly faster rate than the rest of New York since the creation of the APA.

At the suggestion of The Post-Star‘s Will Doolittle, a harsh critic of the APA, I analyzed population data from the Adirondack Association of Towns and Villages (AATV)*, whose most recent numbers are from 2006. Mr. Doolittle also criticized previous analyses that he considered distorted by relatively populous towns like Queensbury and Plattsburgh that had land both inside and outside the Park, so I looked at numbers of municipalities that were entirely inside the Blue Line. I compared those figures to 1970 numbers, the last census before the establishment of the APA. » Continue Reading.


Sunday, August 7, 2011

Adirondack Forest Preserve Land Classification

What follows is a guest essay from the Adirondack Forest Preserve Education Partnership (AFPEP).

The state owned lands of the Adirondacks are identified in the New York State Constitution as forest preserve lands and protected by the State constitution to “be forever kept as wild forest lands.” Currently, there are 2.7 million acres of forest preserve lands in the Adirondacks. The Department of Environmental Conservation, under State law, has “care, custody and control” of the forest preserve lands.

Further, the Adirondack Park State Land Master Plan, overseen by the Adirondack Park Agency, identifies the various management units of the forest preserve, assigns each of the units a land classification category and provides the guidelines for management and recreation for each classification. While there are nine lands classes, the majority of the state lands in the Adirondacks are included in one of the four classification categories below.

Wilderness – 18 forest preserve units, containing approximately 1.1 million acres of land, are classified as “Wilderness”. Recreational activities on wilderness lands and waters is limited to non-motorized recreation such as hiking, hunting, fishing, primitive camping, rock climbing, swimming, skiing, snowshoeing, canoeing and kayaking. Motorized vehicles, motorized boats and mountain biking are prohibited on wilderness lands. Except in very rare cases, the only structures or facilities permitted on these lands are leantos, primitive tent sites, trails, foot bridges and pit privies.

Wild Forest – 20 forest preserve units, containing approximately 1.3 million acres of land, are classified as “Wild Forest”. A wider variety of recreational activities are allowed on the lands and waters in wild forest areas. In addition to the recreational activities allowed on wilderness lands and waters, some forms of motorized recreation are allowed with restrictions. Cars and trucks may only drive on designated roads; snowmobiles may only use designated trails and roads; mountain bikes can use any trails or roads unless prohibited by signs and some specific waters have restrictions on the horsepower of a boat’s motor, allow the use of electric motors only or may be prohibit any motors. Drive up camp sites are provided along some roadways in wild forests areas.

Primitive Areas – 11 forest preserve units larger than 1000 acres, and more than 20 corridors or other small pieces, totaling approximately 66,000 acres, are classified as “Primitive”. Primitive areas are managed the same as wilderness areas and recreational activities are restricted to those allowed on lands and waters classified as wilderness. (The tracts classified “Primitive rather than “Wilderness” because of substantial privately owned “in-holdings” or structures that don’t conform with wilderness guidelines.) The primitive corridors are typically public or private roads within a wilderness area, if it is public road, cars and trucks are allowed on them.

Canoe Area – Only one forest preserve unit, the 18,000 acre St. Regis Canoe Area, is classified as a “Canoe Area”. Canoe areas are managed as wilderness areas, with a focus on non-motorized, water-based activities such as canoeing, kayaking, and fishing. Primitive camping is allowed at sites accessible only by water. Mountain biking is allowed on the administrative roads.

Intensive Use Areas – These areas are limited in size but provide facilities such as bathrooms, developed beaches, boat launches, paved roadways, and other amenities for the recreating public. There are 42 campgrounds, 25 boat launches, 6 day use areas and 2 ski centers owned by the state in the Adirondack Park. These areas provide for recreational activities like group camping (though without utility hookups), swimming, boating, picnicking, and skiing.

Conservation Easement – Currently there are more than 580,000 acres of privately owned lands in the Adirondack Park which the State owns development rights, and often public recreation rights, called “Conservation Easement Lands”. Typically, these lands are owned and/or managed by timber companies, but the ability to subdivide and build structures on these lands are prohibited or severely limited. The public recreation rights on these lands range from no public access, to access limited to specific corridors or locations, to full public recreation rights. The recreation activities on these lands can be restricted by type, location and season. Check with the Department of Environmental Conservation to learn what recreational activities are allowed on specific parcels. DEC State land regulations apply on any conservation easement land that has public recreational rights.

Special Notes

Other than on intensive use areas, the forest preserve lands are designed and managed to emphasize the self-sufficiency of the recreational users. When recreating on the forest preserve you must assume a high degree of responsibility for environmentally-sound use of such areas and for your own health, safety and welfare.

Be sure to know the laws and regulations governing a recreational activity before participating in that activity.

Horseback riding is allowed on roads open for public use, trails that are marked for horse use, and trails marked for skiing or snowmobiling when there is no snow or ice on the ground.

All Terrain Vehicles (ATVs) are prohibited on all forest preserve lands.

Recreational activities on the approximately 2.4 million acres of private lands within the Adirondack Park, not under a conservation easement, are not restricted any more than activities on private lands throughout the rest of the state. The public is prohibited from entering private lands without permission of the landowner.

Contact the Department of Environmental Conservation Lands & Forests office for more information: Region 5 – 518-897-1291 or Region 6 – 315-785-2261

This guest essay was contributed by the Adirondack Forest Preserve Education Partnership, a coalition of Adirondack organizations building on the Leave No Trace philosophy. Their goal is to provide public education about the Forest Preserve and Conservation Easements with an emphasis on how to safely enjoy, share, and protect these unique lands. To learn more about AFPEP visit www.adirondackoutdoors.org.


Wednesday, July 27, 2011

John Sheehan: Snowmobile Trails Plan Goes Too Far

The Adirondack Council will file comments with the NYS Department of Environmental Conservation (DEC) this week objecting to serious flaws in the Unit Management Plan (UMP) for the Independence River Wild Forest.

The Independence River Wild Forest is an area of public land and waters west of Stillwater Reservoir in Herkimer and Lewis counties, extending to the park’s western border. It is bounded by the Ha-De-Ron-Dah Wilderness to the south, Pepperbox Wilderness to the north, and Pigeon Lake Wilderness to the east. Comments on the unit management plan are due to DEC by July 29.

There are two main problems with the plan, both of which involve the DEC’s decisions to ignore current legal protections for the Forest Preserve. Both problems seem to be caused by the DEC’s rush to accommodate the wishes of snowmobile clubs and boosters who are applying local political pressure. » Continue Reading.


Tuesday, July 19, 2011

Dave Gibson: Building Rights for ACR?

Most American communities will ultimately develop according to how they are zoned. Absent state or federal regulatory protection of wetlands, for instance, or other legal protection or zoning overlays, land in R-1 or other residential zoning will ultimately, some day be valued, bought, sold, and developed consistent with the number of houses allowed there under the local zoning code.

Of course, towns are legally allowed to plan for their futures, and regulate development in a far more creative fashion, but few in my area seem to use that authority. I live outside the Adirondack Park in Saratoga County, and found out that the allowable density under the zoning law in my town far outweighed the presence of a lot of small (read unregulated) wetlands, wet soils, lots and lots of trees, and well adapted critters like hawks and owls.

An out of state developer was, therefore, “entitled” to 18 homes and 18 separate driveways on 18-wooded acres in this R-1 residential zone. Any questioning of this formula resulted in assertions by the town attorney that the applicant has vested rights in that number of lots. Lo and behold, the planning board actually asserted its authority and knocked out two lots, but I suspect that was only because a bunch of neighboring citizens, including my family, sued the town for failing to conduct a meaningful environmental review (the suit proved ultimately unsuccessful).

The neighbors walked and photographed the land in question in all seasons, and predicted that building over such a high water table would require expensive engineering vulnerable to failure, subjecting the neighbors to flooded cellars, and requiring sensitive wildlife “to move.” Any sympathy at town hall evaporated after the lawsuit. The board felt they had bent over backwards by knocking out two lots. Why this swampy land full of wood frogs was wrapped into the adjoining R-1 district was the town board’s, and not the planning board’s responsibility.

In contrast, the Adirondack Park Agency (APA) must interpret development density in the context of complicated regional legislation called the APA Land Use and Development Plan whose purpose is to “insure optimum overall conservation, protection, preservation, development and use of the park’s unique resources.” Under the APA law, there are no land use zones. In fact, you can not even find the word “zoning,” or zone in the definitions section. There are, instead, “land use areas.” Each of these six areas is described as to their character, purposes, policies and objectives. Each has a different guideline for the overall intensity of development which, according to the law’s logic, is compatible with and help to perpetuate the existing character, purposes, and uses of the land.

For instance, under the Resource Management (RM) land use area (whose basic purpose, quoting from the Act, is “to protect the delicate physical and biological resources, encourage proper and economic management of forest, agricultural and recreational resources, and preserve the open spaces that are essential and basic to the unique character of the park”) the overall intensity of development “should not exceed approximately fifteen principal buildings per square mile.” Hence, the oft-used expression that in this largest and most protected of private land use areas there is “43-acre zoning,” or one principal building allowed per 42.6 acres.

“43-acre zoning” is a serious misreading and misapplication of the APA law. This is because mathematical achievement of the overall intensity guidelines should only be viewed in context with other criteria for determining project approvability, including whether or not a development project would be compatible with the purposes, policies and objectives of the land use area in question, or whether it would cause an “undue adverse impact” upon the resources of the park which, in turn, must be assessed according to numerous and defined development “considerations” for water, land, air, noise, critical resources, wildlife, aesthetics, historic factors, and lots more defined in regulation. Knowing this makes the “shall not exceed approximately” language of the overall intensity guidelines more understandable. The Act is clearly not like my town’s zoning law. 43-acres per principal building in RM are not a vested right, but a guideline judged in context with other equally weighted criteria needed to comprehensively assess a given project.

Some APA applicants, particularly if they have attorneys representing them, misread the APA Act purposefully and speak of these intensity guidelines as a legal, vested, valuable (in dollars) right. Even the APA can forget the context of its own law. For instance, as the Adirondack Club and Resort (ACR) hearing got underway in March, APA hearing staff issued a draft document attempting to stipulate how many mathematical “building rights” the applicant Michael Foxman had in the two affected land use areas, Resource Management and Moderate Intensity Use. This language was objected to by a variety of parties, and APA quickly conceded the point and from then on used the term “principal building opportunity.”

Foxman’s ACR attorney Tom Ulasewicz never conceded the point, and used the term “building rights” repeatedly, even at the last day of the hearing in late June. At no point do I recall APA staff correcting him, or objecting to his frequent assertion of “building rights” in the hearing record. This tolerance for language that so distorts the law’s purposes may be a pet peeve of mine, but I fear it’s a symptom of a lowering of standards for project review at the park agency.

Does the fact that ACR’s Michael Foxman proposes to build 82 new principal buildings on nearly 4800 acres of Resource Management mean he is in the clear as far as this aspect of the law goes? Applying the overall intensity guidelines math (“43-acre zoning”) means he could “potentially” build 111 new homes on RM. As ACR attorney Ulasewicz frequently pointed out, his client is far below the “legal threshold.” There are 29 “additional principal building opportunities” which ACR is “not using” he pointed out at frequent intervals.

The answer to such a distorted view of the law should be that after weighing the hearing evidence and its law, the APA would be completely within its legal rights to declare that, for instance, all or large portions of the RM land should remain as it is, undeveloped, so that this land use area can continue to serve its legally defined purposes, policies and objectives, and so that a variety of undue adverse impacts may be avoided.

Photo: APA Staff at a 2007 field trip to the ACR site.


Wednesday, June 15, 2011

Adirondack Legislative Watch List

With the New York State Legislature wrapping up another session, I thought it would be a good idea to take a look at some of the bills making their way through the process. This list is not complete, but contains those items that are important in one way or another to the Adirondack Park.

There are two online systems that provide information about latest legislative actions and the status of bills. The NYS Senate’s Open Legislation system is still in Beta, but is apparently up to date, includes the latest Assembly info as well, and has the easiest user interface. The older system, the Legislative Research Service system, claims to offer “up to the minute” information.

Prohibiting NYS From Purchasing Land for Forest Preserve
Betty Little’s bill to prohibit the state from purchasing forest land in fee title and to only allow purchases by conservation easement. Killed just after 4 p.m. today in the Senate Rules Committee, a final stop on the way to a floor vote. (S. 1501 Little)

National Grid Land Exchange
This legislation will complete the Constitutional Amendment authorizing land swap that was approved by voters in 2009, allowing the New York Power Authority and National Grid to complete the Route 56 Tri-Lakes power line project. In exchange for receiving six acres of State Forest Preserve, National Grid is buying and giving to the public 20 acres that will be included in the Adirondack Forest Preserve. The bill is in the Ways and Means Committee in the Assembly and on the floor in the Senate. (A. 8214 Sweeney / S. 4861-A Griffo)

EPF Revenue Enhancer
This bill would, over the next four years, add the unclaimed nickel deposits from “bottle bill” revenues as an additional source of money for the Environmental Protection Fund (EPF). The EPF provides grants for land acquisition, invasive species control, smart growth projects and water quality improvements. This legislation is currently in the Ways and Means Committee in the Assembly and Finance Committee in the Senate. (A. 7137 Latimer / S. 5403 Grisanti)

Defines Adirondack ‘Community Housing’
Defines “community housing” for purposes of the Adirondack Park to mean four dwelling units not exceeding 1500 square feet of floor space each, located on one contiguous parcel within a moderate intensity use or low intensity use land use area, and meeting certain other defined land use criteria. Advanced to Third Reading in both the Senate and Assembly on Tuesday; Senate vote expected today. (S. 4165-A LITTLE / A. 8303 Sweeney)

Restricting APA Powers Over Campgrounds
Prohibits the Adirondack Park Agency from promulgating or implementing any rule, regulation or land use and development plan, related to campgrounds, which is inconsistent with the provisions of any rule or regulation of the department of health relating thereto. Third reading in the Senate; Environmental Conservation Committee in the the Assembly. (S. 343 LITTLE / A. 149 Sayward)

Re-defining ‘Campground’ in the Adirondack Park
Redefines “campground” for the purposes of the Adirondack Park and regulation by the Adirondack Park Agency; defines such term as a parcel of land with 5 or more campsites, including buildings and accessory structures; provides that recreational vehicles may be kept at a campground or campsite, with the consent of the owner of the campground, during periods of time when they are not in use, so long as they are not used in a manner which violates the campground permit. Passed Senate, referred to Assembly’s Environmental Conservation Committee on Monday. (S.345 LITTLE / A. 151 Sayward)

Requiring APA Appointments from Approved List
Requires the governor to appoint the five members of the Adirondack park agency who reside in the park, from a list established by the legislative bodies of the counties in the Adirondack park and the Adirondack Association of Towns and Villages. Referred to Finance in Senate; Environmental Conservation in Assembly. (S.822 LITTLE / A. 511 Sayward)

Removing Land Use Planning Power of APA
Makes state lands within the Adirondack Park subject to the local land use plan of the municipality in which the land is located. Betty Little Senate bill sent to Senate Finance Committee in May; there is no Assembly bill. (S. 5188 LITTLE)

10 Year APA Enforcement Statute of Limitations
Establishes a ten year statute of limitations to enforce violations of rules and regulations of Adirondack Park Agency committed within the Adirondack park. senate bill moved to Finance committee in May; Assembly bill in Codes committee since January. (S. 823 LITTLE / A. 512 Sayward)

“Adirondack Sportsmen’s Club Preservation Act”
Requires that state acquisition of open space shall remain subject to the leases of sportsmen’s clubs thereon. “Sportsmen’s clubs shall be deemed to retain exclusive access to and usage rights for hunting and fishing, while allowing public access to the land for other recreational activities.” In Senate Finance Committee. Betty Little bill in the Senate (S. 2487); no corresponding Assembly bill.

Opening Backcountry Waters to Disabled Veterans on Floatplanes
Directs the development of a permit system to provide disabled veterans access to certain restricted bodies of water in the Adirondack park through the use of float planes. Passed the Senate; in Assembly Environmental Conservation committee (S.824 LITTLE / A. 518 Sayward).

Public Right of Passage on Navigable Waters
Codifies the public right of passage upon navigable waterways of the state for purposes of commerce or recreation. Referred to the Assembly Codes Committee in May; no bill in the Senate since February, 2002 in deference to Senator Betty Little. (A370-2011 HOYT)

Boat Launch Preservation Act
Requires that one percent of the 4 cents per gallon gasoline surcharge on gasoline which is used on waterways but not more than 5 million dollars per fiscal year is to be deposited in the dedicated boat launch site fund; moneys of such fund shall be disbursed for design, construction, maintenance and improvement of boat launches and boat access sites. Referred to Assembly Ways and Means Committee in February; no sponsor in the Senate. (A5546 ENGLEBRIGHT)

Requiring Large Water Withdrawal Permits
Would grant DEC permitting abilities for withdrawals of large amounts of water (over 100,000 gallons per day) from lakes, rivers, streams or underground sources. Exemptions exist for agricultural water sources. The bill has passed the Assembly and is currently awaiting action on the Senate floor. (A. 5318-A Sweeney / S. 3798 Grisanti)

Creating ‘Non-Trail Snowmobile’ Registration
Establishes a non-trail snowmobile registration for snowmobiles which shall be used solely for the purpose of gaining access to hunting and fishing areas. Referred to Transportation Committee in both the Senate and Assembly in January. (S1206 GRIFFO / A 1141 Magee)

Requiring A DEC Wildlife Economic Impact Report
Requires the Department of Environmental Conservation to prepare a report on the economic impact of hunting, fishing, and wildlife-associated activities in New York. In Senate Finance Committee since January; no Assembly sponsor. (S653 VALESKY)

Extending DEC Northern Zone Special Muzzle-Loading Powers
This bill would extend DEC’s authority to establish, by regulation, management measures for muzzle-loading firearm big game special season in the Northern Zone until October 1, 2015. In the Adirondacks, concern about lower deer numbers might result in a short, early muzzle-loading season. Passed Assembly but modified in Senate; returned to Assembly June 6. (S4967 GRISANTI / A 6953 Gunther)

Allowing Fishing With Three Lines
Environmental Conservation Law would authorize an individual to angle for fish with up to 3 lines in freshwater until December 31, 2013. Currently one person may operate not more than two lines on any waters. Passed by Senate, amended and now at Third Reading. Codes committee in the Assembly. (S.2462-B LIBOUS / A.3480-B Russell)

Gift Cards for Hunting and Fishing Licenses
Directs the commissioner of environmental conservation to create gift cards for hunting and fishing licenses. Ordered to Third Reading in the Senate yesterday and on today’s Senate Floor calendar; Referred to Assembly Environmental Conservation Committee in May. (S. 5161 RITCHIE / A. 7576 Gunther)

Extending Coyote Season from March 28 to May 31
Establishes the open season for hunting coyotes as October 1 through May 31 (currently march 28). Sent to Environmental Conservation committee in January; currently no Assembly sponsor. (S2486 LITTLE)

Bear Gall Bladders
Senate version at third reading: “Prohibits the possession, sale, barter, offer, purchase, transportation, delivery, or receipt of bear gallbladder, bile, or any product, item, or substance containing, or labeled or advertised as containing, bear gallbladders or bile; exempts federal and state government and individuals with a valid hunting license from transporting one bear gallbladder.” In several committees in the Assembly.

Sacandaga Inland Waterway
This bill would add the Sacandaga River to a list of inland waterways which are eligible to receive funding through the Department of State’s Waterfront Revitalization Program (part of the Environmental Protection Fund). It was already passed in the Assembly and waiting for consideration on the Senate floor. (A. 7241 Sayward / S. 4763 Farley)

Commemorate Adirondack Medical Center 100th
What is known today as the Adirondack Medical Center began as two separate hospitals, the General Hospital of Saranac Lake, and the Placid Memorial Hospital of Lake Placid. Built at the top of Winona Avenue, the General Hospital of Saranac Lake was founded in 1911; The Placid Memorial Hospital Fund, was organized in 1947, and plans for construction of a new hospital to be located on a Church Street parcel were developed. Doors were opened at the Placid Memorial Hospital of Lake Placid on February 4, 1951. Referred to Finance yesterday. (J. 2567 LITTLE)

Creates A Constitutional Right to Hunt, Fish, and Trap
Prohibits counties and other local municipalities from regulating hunting, fishing, and trapping. Both referred to Attorney general for Opinion in May. (S2382-A SEWARD / A 6864-A Gunther)

Soil & Water Conserv Dist Invasive Species Program
Authorizes a public information and education program for soil and water conservation districts and relates to the spread of invasive species. Passed Senate in May; Sent to Assembly’s Environmental Conservation Committee the same day. (S2839-A YOUNG / A 3555 Magee)

Establishes Invasive Species Stewards, Paddling Fee
Establishes the aquatic invasive species volunteer steward program within the office of parks, recreation and historic preservation; such program shall use volunteers to collect information on alien plants and animals in state water, and educate boaters thereon; imposes an annual $6 permit fee upon non-motorized vessels and requires the revenue to be deposited into the I love NY waterways vessel access account. Referre to Senate Finance Committee in February; no assembly sponsor. (S3519 JOHNSON)

Repeals Defunct Water Quality Compacts
Repeals the Champlain Basin Compact, the Mid-Atlantic States Air Pollution Control Compact and the Delaware River Basin Water Commission Compact. To clean up and clarify the Environmental Conservation Law by repealing certain outdated sections which relate to proposed interstate compacts that were never established. These include: a 1966 law which proposed a Champlain Basin Compact; a 1967 law which proposed a Mid-Atlantic States Air pollution Control Compact; and a 1952 law which proposed a Delaware River Basin Water Commission Compact (not to he confused with the existing Delaware River Basin Compact). Refereed to Senate Environmental Conservation Committee in May; no Assembly sponsor. (S5139 FARLEY)


Monday, June 6, 2011

Dave Gibson: ACR Economics and Fair Reporting

The region is fortunate that the Adirondack Daily Enterprise is covering each session of the Adirondack Club and Resort (ACR) adjudicatory public hearing. Their reporter, Jessica Collier, is doing a good job writing multiple, interesting stories about each day’s testimony and cross examination.

One of the witnesses reporter Collier covered this week (see Adirondack Daily Enterprise’s June 2nd edition) was Shanna Ratner. I’ve known of Shanna Ratner and her firm, Yellow Wood Associates, for many years. Adirondack Wild’s Dan Plumley contacted her to testify at this hearing during 2007 when he worked for the Association for the Protection of the Adirondacks because he knew she was not just smart and accomplished, but a thorough, deep thinker, and analytical. We were glad that she was retained by Protect the Adirondacks.

Among many other projects, she helped the Adirondack North Country Association to develop a program seeking to add greater value to the region’s forest products. Yellow Wood offers a wide array of consulting services in rural, community development. Judging from her resume, Shanna has devoted a large part of her professional and personal life to helping rural communities survive and develop, if not thrive by focusing on the strengths of their people, their natural resource base, their histories and geography, and their talents for organizing. She has a Masters degree in Agricultural Economics from Cornell University. Among the publications she has authored or co-authored are: “Keeping Wealth Local: Community Resilience and Wealth,” and “Challenges and Opportunities for Rural Communities in a Rapidly Changing World.” She has reviewed a lot of resort development in neighboring Vermont, among other places, and has real-world experience to offer the hearing.

Among other points in her testimony this past week, Ratner challenged ACR’s assertion that “the majority, if not all, of the construction workers will come from the regional labor force” (ACR 2010 Fiscal and Economic Impact Study). Of those firms qualified to construct a resort of this large scale, Ms. Ratner testified that “these firms will use their own employees first, followed by subcontractors with whom they have previous positive experiences. Only after these avenues have been exhausted will they look for additional hires. It is highly unlikely that they would open a hiring hall locally; they are far more likely to work through their own internal channels and with their subcontractors to locate qualified firms and let the firms locate qualified individuals…It is highly unlikely that the ACR will provide a substantial boon to the many unemployed construction workers in the four county area” (Franklin, St. Lawrence, Hamilton and Essex). Under cross examination, she said that the ACR methodology for arriving at their employment numbers uses a simplistic formula not used by other serious resorts with which she is familiar.

She also punched holes in ACR economic multiplier figures. She argued that per capita costs of the sewage infrastructure are likely to be higher than estimated because of the risk of excess sewer capacity, and a lack of home sales to support those costs, leaving those burdens to the community. On town services, she pointed out that newcomers like ACR homeowners will demand better service delivery and quality, sending service costs up. On payment in lieu of taxes, Preserve Associates has no control over the value of the house that eventually gets built, so ACR can not predict accurately the assessed value. As a result, ACR tax revenue projections may be significantly inflated. She also argued that Tupper Lake must plan for peak use periods, and ACR figures for service demands only estimate average use periods.

In summary, according to her testimony, ACR estimates of local employment may have no basis in reality, per capita service costs may be higher than ACR’s application estimated, and revenues from payments in lieu of taxes may be lower because future owners are not required to build million dollar homes.

Not much of this testimony will be found in the Tupper Lake Free Press, where editor Dan McClelland unabashedly and uncritically shouts loudly for the ACR, shouts down anybody with concerns, and not just on the editorial pages. Would that the Free Press more broadly represent the community it serves and be reasonably impartial, knowing how many in town may badly want the ski area redeveloped, but who may be skeptical about ACR claims.

This week the Free Press chooses to only quote the financial and economic analysis of the ACR. In contrast to the even-handed coverage of the Adirondack Daily Enterprise, McClelland writes this week about Shanna Ratner and any witness put forward by ACR “opponents”: “the interesting thing about ‘expert’ witnesses is that they can be readily found anywhere. They often testify selectively to meet their employer’s requirements” (Ratner is not employed by Protect the Adirondacks, she is a paid consultant). McClelland continues: “APA Commissioners must listen to what the people of Tupper Lake and their leaders want in the development. What the ‘experts’ of the opposing groups testify must be considered by the board in the fashion it is delivered: paid for by the people who have an agenda to stop the resort.”

Putting an ACR-type application to the test of meeting rigorous standards of review that might actually withstand professional scrutiny, and thus better serve its local community and the park is not on the Tupper Lake Free Press agenda.

Photo: View north from Mount Morris.



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