PROTECT Says: In Approving Resort Project, APA Abdicates Its Duty to Uphold the Law

January 20, 2012

RAY BROOK, NY—The decision by the Adirondack Park Agency (APA) to approve the massive Adirondack Club and Resort (ACR) project is an abdication of the Agency’s legal responsibility to uphold state law, according to one of the park’s leading environmental groups.

Protect the Adirondacks!, which has consistently opposed the ACR application for fiscal as well as environmental reasons, calls the APA decision a serious mistake that will have far-reaching negative consequences for the people and communities of the Tupper Lake region in particular and the entire Adirondack Park in general.

Moreover, approval of the project represents surrender by the Agency to economic interests and an abandonment of its core mission to ensure that all applications it approves are compliant with the APA Act and other provisions of state law. In an op-ed commentary published Wednesday, Jan. 18, in the Albany Times Union, Protect urged the APA to deny the application because the ACR application does not comply with the law.

“The choice the APA has is a stark one: Either follow the law and deny the application or ignore the law and approve it,” wrote Protect board members Robert Glennon (former Executive Director of the APA) and Robert Harrison (please see full text attached).

It was clear from the APA meeting held Wednesday, Jan. 18, that the Agency was turning its back on its primary responsibility to protect the environment, as only three commissioners expressed significant concerns about the larger issues related to the project’s undue adverse effects—namely, the lack of wildlife studies and the shaky financial underpinnings of the project.

It is also now clear that the process by which the APA reached its decision has been unduly influenced by enormous pressure from several quarters to do something to try to revive the local economy. But as Harrison and colleagues on the Protect board see it, what proponents have settled on is a project so huge in its scope and so reckless in the way it has been planned and financed that it is bound to fail economically while, at the same time, still posing the greatest ecological threat to the Adirondack Park since the APA’s creation.

“The APA staff and board have issued a ruling which is a slap in the face of all previous boards who, by and large, have made the hard decisions to enforce the law and protect our Park,” said Harrison, one of the group’s three Co-Chairs. “This board, influenced by a misguided presentation by the APA Executive Staff, has torn apart the very foundation of the Adirondack Park Agency Act. It is truly a very sad day.”

The decision also demonstrates that the Cuomo Administration has not given the APA the attention and support it sorely needs and deserves. “The Agency is in decline,” said Protect Co-Chair Chuck Clusen. “This and past administrations have passed up opportunities to make strong appointments. Given today’s decision from the APA, it is obvious that the administration’s direction is completely inadequate to meet the standard of what is needed to preserve the Adirondack Park in the present and future. Given that the Governor loves to vacation in the Adirondacks, this decision is most shocking and sad.”

Board member and attorney John Caffry, Co-Chair of the Protect’s Conservation Advocacy Committee, who represented the group during the APA’s adjudicatory hearing, offered this analysis: “With this vote, it is now clear that the Park’s anti-environment/pro-development forces have achieved their long-term goal of capturing control of the Park Agency. It will be open season on subdividing the Park’s backcountry lands, now that we have seen that the APA will approve these projects with only the flimsiest of premises as justification, and with total disregard for the record and the law.”

No Amount of Conditions Can Justify Approval
Protect has opposed any approval of the application, regardless of the conditions attached to the permit, and favored sending the project back to the drawing board, arguing that a smaller, more compact, better designed project could potentially be approvable under the APA Act. In the group’s view, the current application is so far from being compliant with the law, that allowing this project to now move forward and begin, for example, developing precious Resource Management area land before these attached conditions are met demonstrates that the Agency got things backwards this time. The wildlife studies and other such items covered by the permit conditions should have been required before approval.

As Protect board member Sid Harring said after reviewing the draft permit, “Am I the only one who is completely amazed at how little the APA was influenced by anything environmental?”

In addition to the irresponsible approach to the environment that this permit now allows, there remains the dubious financing of the project. The lead developers on the project, Michael Foxman and Tom Lawson, have proposed raising funding for all of the project’s infrastructure via the sale of $35 million worth of low-interest bonds issued by the Franklin County Industrial Development Agency (IDA), as detailed in an article in the January/February 2012 Adirondack Explorer. The bonds would be repaid through payments in lieu of taxes (PILOTs), a scheme that would be passed on to the private property owners who purchase a house or condo in the project.

The owners’ PILOTs would cover the developers’ debt service, while significantly lowering their costs, and shifting the risk to homeowners and the community.The scheme has been rejected by the Franklin County IDA as being unprecedented, and it remains to be seen if the IDA will find the arrangement to be workable or even legal.

Case Record Demonstrates Repeated Failure by Applicant to Prove Its Claims
The financing proposal was just one of many problems with the project that Protect highlighted in building a comprehensive case record throughout the APA’s adjudicatory hearing process. On a dozen separate issues in which the burden of proof was on the applicant, the Protect legal team demonstrated that the applicant failed to provide credible proof for its claims.

Ultimately, the Protect case demonstrated that the ACR project is doomed to failure, based on fictitious real estate projections, inflated revenue estimates, overstated subsidies for the Big Tupper Ski Area, and other faulty numbers. Protect has projected a scenario in which the developer is likely to sell off as many lots as it can, beginning with the eight larger Great Camp lots, sale of which will be used to pay off back taxes and other debts of the developer.

Thousands of acres of timber land will then go out of production. Thousands of acres of wildlife habitat will be irreparably fragmented. Hunting and other recreational opportunities for local residents on those lands will be lost. If the Franklin County IDA does not approve the funding for the remaining infrastructure, there will be no monies available for the planned improvements. It will then be very likely that the developer will abandon the project, resulting in negative fiscal impacts for the Town of Tupper Lake and neighboring communities, and undue adverse impacts to the natural resources of that region of the Adirondack Park.

“There are no winners here today, but there are many, many losers,” said Protect board member Glennon. “The developer didn’t win, for the project will collapse under its own weight. Local government and local residents didn’t win, for they will be saddled with costs as a result. Wildlife didn’t win because, despite asking four times for a site-specific survey, the Agency did not insist on it, and now defends its lack.

“The Agency is one of the biggest losers, having once again sold its birthright for a mess of pottage, completely and deliberately ignoring what its organic act provides with respect to Resource Management lands, the lands most critical to preserving the unique character of the Park, seeking as always to ingratiate, not to regulate.

“The Governor is a loser, for he has lost the trust of those who know he enjoys visiting the Adirondacks, and who expected his appointees and State agency designees to the Agency to protect this precious largest natural area east of the Mississippi.

“But far and away the biggest losers are the Adirondack Park and the 19 million citizens of the State who treasure it. As a consultant to the 1968 Temporary Study Commission on the Future of the Adirondacks wrote at the time, ‘Perhaps a degraded wilderness is all we’re entitled to.’”

About Protect
Protect the Adirondacks! Inc., is a non-profit, grassroots membership organization dedicated to the protection and stewardship of the public and private lands of the Adirondack Park and to building the health and diversity of its human communities and economies for the benefit of current and future generations. For more information, please visit www.protectadks.org.

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