PROTECT legal action challenges the approval by the Adirondack Park Agency of the Adirondack Club & Resort project in Tupper Lake

March 2012: PROTECT and the Sierra Club file lawsuit against the APA to challenge its approval of the 6,000-acre ACR project in Tupper Lake. This landmark lawsuit challenges the APA’s decision to ignore its own laws when it awarded a permit to the ACR project. See legal papers here and here.

At the time PROTECT stated:

“When Governor Rockefeller signed the law creating the APA, he is said to have proclaimed ‘The Adirondacks are saved forever’,” said Bob Glennon of PROTECT, a former Counsel and Executive Director of the Agency who is assisting in the lawsuit. “He was tragically wrong. It is now up to Governor Cuomo, who has often visited the Adirondacks with his family, and who has proven he can get things done in Albany, to give the agency charged with preserving the largest natural area east of the Mississippi for 19 million New Yorkers and future generations, a badly-needed backbone implant.”

“In the last few years APA has become a rogue agency that ignores the law for political ends” said John Caffry of PROTECT, the lead attorney in the case. “Its rubber-stamp approval of this project, the largest ever to come before it, is only the latest example of this unfortunate trend.”

“For years, the Adirondack Park Agency has failed to adequately protect land classified as ‘Resource Management’ under the APA Act,” stated Roger Downs, Conservation Director of the Sierra Club Atlantic Chapter. “The Act created this land classification category for the purpose of preserving open land by protecting agricultural and timber management lands in the Adirondack Park, not for multi-million dollar McMansions. It is past the time for the APA to stop cutting corners with its existing laws and regulations and to act to protect New York’s great wilderness legacy.”

The initial Petition in the lawsuit made 28 claims, chief among them:

• When it approved the ACR project, the APA referred to its laws as mere “guidelines” and “recommendations.” This never happened before.

• The APA also illegally supplemented the public hearing record to support its faulty or non-existent findings. The purpose of a formal adjudicatory hearing is to make a record to support a decision. The APA is not supposed to use information outside the hearing record to make a decision.

• The project violates the law by fragmenting 4,805 acres of undeveloped forestlands, classified as “Resource Management” by the Adirondack Park Agency Act, into 35 “Great Camp” lots and 45 other smaller lots. None of these 80 lots in the Resource Management lands are situated, as the statute calls for, “in small clusters on carefully-selected and well designed sites.”

• Despite having formally asked the developers to prepare a 4-season, comprehensive wildlife study no less than four times, the APA approved the fragmentation of the undeveloped forest lands without ever having received this wildlife study.

• Even more puzzling is the APA’s approval of the project on the condition that more studies of impacts to wildlife would be done after that approval, rather than beforehand.

• ACR’s principal financing is unproven. The initial road, sewer, water and electric infrastructure for the project is proposed to be financed by $36 million in bonds to be issued by the Franklin County Industrial Development Agency (IDA). The IDA’s own bond counsel has questioned the novel scheme.

• APA violated its own regulations in numerous respects, including allowing illegal “ex parte” contacts (communications not on notice to the other parties to the proceeding) between the developer’s representatives and APA’s executive staff.

• PROTECT is also concerned about a public statement by a local official indicating that there was improper influence by the developers in the APA’s decision. Since then, this same local official has revealed that there was also improper political influence on the decision.

February 2012 APA’s decision to approve 6,000-acre ACR project is reported in the New York Times. APA Chairwoman Lani Ulrich called the APA’s approval “a huge win.”

John Caffry, PROTECT’s attorney stated in the Times: “With this vote, it is now clear that the park’s anti-environment and 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.”

PROTECT believes that the only way the APA approves the ACR project is by ignoring its own laws and by substantial political influence.

January 2012 PROTECT disappointed in the APA’s decision to approve the ACR project, finds that the APA ignored its own laws and regulations.

PROTECT stated “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.”

November 2011 The post-testimony phase of the public hearing continues. All parties submitted and circulated Reply Briefs that commented on the Briefs of each party.

October 2011 Read the stellar PROTECT Hearing Brief that details the wide array of problems with the project as well as the failure of the APA to uphold APA law and regulations to assess a variety of impacts. PROTECT ended the hearing extremely disappointed with the inability of the APA to hold the ACR applicant accountable for a variety of unsubstantiated claims and to meet the application requirements of the APA Act.

The PROTECT Hearing Brief stated:

The reasons that the law and the hearing record mandate that the application must be denied include both legal issues and the applicant’s failure to prove its case on each of the 12 hearing issues. The legal issues include:

● The applicant’s plans for transferring principal building opportunities on Resource Management lands across three intervening private properties would violate the overall intensity guidelines of the APA Act.
● The project’s valet boat launching service would usurp the entire capacity of the Tupper Lake Boat Launch Intensive Use Area of the Forest Preserve (“Boat Launch”) in violation of Article 14, § 1 of the State Constitution.
● The valet boat launching service would constitute the operation of a commercial business at the Boat Launch, in violation of the ECL and applicable regulations of the Department of Environmental Conservation (“DEC”).

The reasons why the application must be denied due to the applicant’s failure to meet its burden of proof include:

● The project, including the ski area, will fail financially, its IDA funding scheme is not legal, the promised jobs will not materialize, and the applicant failed to meet its burden of proof that the project would not create financial burdens for local governments.
● The project would irreparably fragment thousands of acres of wildlife habitat and damage the timber resource base in the region, there are viable less harmful alternatives, and the applicant failed to meet its burden of proof that the project meets any of the criteria of APA Act § 809(10).
● The project’s high altitude developments would cause erosion and other impacts and the applicant failed to meet its burden of proof that there would not be undue adverse impacts from these parts of the project.
● The applicant failed to meet its burden of proof that the proposed sewer district #27 was feasible.
● The project would usurp the entire capacity of the Boat Launch and the applicant failed to meet its burden of proof that there would be no undue adverse impact on the Forest Preserve.
● The applicant failed to meet its burden of proof that the project would not have an undue adverse impact on wetlands.
● The applicant failed to meet its burden of proof that the project’s stormwater runoff would not have an undue adverse impact.
● The proposed enforcement mechanisms are inadequate.
● The applicant failed to meet its burden of proof that there will not be undue adverse visual impacts.

Each and every one of these issues is grounds for denial of the application. If the applicant fails to prevail on just one of them, the application must be denied.

July 2011 Lots of news coverage around the close of the testimony phase and formal record-building phase of the APA adjudicatory public hearing. PROTECT feels it made a strong case for why the ACR project in its current configuration is neither lawful nor viable.

June 2011 Fiscal impacts and burdens on local municipalities from the ACR project are evaluated during the hearing. Lots of news coverage. Witnesses show strong negative impacts from the ACR project.

Some highlights from the hearings:

PROTECT’s witness Shanna Ratner questioned the tax revenue projections and the use of the PILOT, the asking prices of the lots, and the economic multiplier supplied by the LA Group. She also testified that many of the promised jobs are unlikely to go to local workers.

In cross examination Caffry questioned the LA Group’s witnesses Terry Elsemore and Jim Martin on a 2010 chart developed by the applicant showing that the developers were expecting a 21.5% to 97.5% more in lot sales revenue than they did in 2005, despite the intervening crash in the real estate market. Martin said Michael Foxman provided the 2010 numbers and he did not know why the prices had increased.

PROTECT’s witness David Norden testified that ACR developers “are unlikely to get anywhere near what they project for property sale prices and volume. Big Tupper does not have brand recognition, is too far from key metro areas, and is not using cutting-edge ski lift technology.” Norden supported his testimony with charts and drafts that he created, based on market research that he did.

PROTECT’s witness Norden, when asked by the ACR attorney if he was aware that the ACR proposal was not for a ski resort but an Adirondack resort with a ski area, said that the application materials called the ski area the “centerpiece.” He also testified that the project would not compete well with other summer resorts.

PROTECT lawyer John Caffry argued that none of ACR’s witness Scott Brandi’s testimony should be allowed in the record because none of the reports and surveys he referenced had been provided by ACR in response to Protect’s discovery demands. ALJ O’Connell granted the motion and disallowed most of Brandi’s testimony.

May 2011 Important testimony made at the public hearing about the ACR’s impacts on Resource Management from the sprawl and forest fragmentation due to the Great Camp lots plan. Applicant stonewalls and withholds important information.

May 2011 APA public hearing schedule released.

March 2011 Go behind the scenes at the ARC hearings.

March 2011 Update on the hearing.

March 2011 Read PROTECT’s Opening Statement at the APA adjudicatory public hearing. In this Opening Statement, PROTECT stated:

“PROTECT believes that this project represents the greatest threat to the ecological integrity of the Adirondack Park since the creation of the Adirondack Park Agency. Unfortunately for the people of Tupper Lake and the Adirondacks who are looking for a way to revive the local economy, the project, as proposed:

● will have an undue adverse impact on the resources of the Adirondack Park;
● violates the Overall Intensity Guidelines for Resource Management areas;
● is not financially viable, so it will not support the improvement and future stability of the ski area;
● will have negative fiscal impacts for the community; and
● would create a very negative precedent for the future of the Adirondack Park, which is a matter of state-wide, and even national concern.

Therefore, the application does not comply with the APA Act and must be denied.”

PROTECT zeroed in on the issue of the design of the “Great Camp” lots:

● If the Great Camp lots are approved, the natural resources of the Resource Management lands will not be adequately protected from visual impacts and habitat fragmentation, all of which are issues covered by the APA Act’s development considerations.
● There will also be a loss of productive timber lands, and recreational opportunities now available to local citizens, including hunting clubs, will be lost.
● The 100 to 700 acre lots will not prevent these impacts from occurring.
● These lots must be eliminated for any project to be approvable.
● The current proposal is not a legitimate cluster design – the lots are all about 25 acres or more.
● That’s not a cluster under any reasonable definition of the term.
● There are alternatives that could be legitimate cluster designs, that would reduce the impacts of the Great Camps on the natural resource, timber and public recreational resources of the RM lands.
● Mr. Ulasewicz (the ACR lawyer) said that 5,600 acres will be undeveloped. This is like the oil companies’ claims that they will only affect a few acres if they drill for oil in the Arctic National Wildlife Refuge, because they don’t count the pipes, only the footings that hold the pipes up above the ground.

March 2011 Public statements can be made at the opening of the public hearing, after which the hearing will be closed to only approved “parties.”

March 2011 PROTECT Board member Sid Harring enumerates why PROTECT should be part of the APA’s adjudicatory public hearing on the ACR project.

Harring writes “We are also people who care deeply about the Adirondack Park. We appreciate its grandeur. We love its scenery. We value its recreational opportunities. We trust that we share these values with most Park residents. Moreover, in a world that is rapidly destroying its wild places and in which species go extinct by the thousands annually, we believe it is important to protect the few wild places remaining and to preserve the integrity of their ecosystems. We support Article XIV and the Adirondack Park State Land Master Plan because they protect these values. We love this place as well as its people and its communities. We are committed to the vision of the Adirondack experiment in which wilderness is preserved and small communities thrive. We are not anti-development. At the same time we want development to be is consistent with this larger vision. We doubt that ACR is consistent with it.”

February 2011 Letter to the Editor from PROTECT Board members Bob Harrison and Lorraine Duvall lays out cogent arguments.

February 2011 The development in Tupper Lake known as the Adirondack Club & Resort (ACR) is entering a new and expensive phase. After years of delay on the part of Preserve Associates (the Applicant), they now seem to be in a rush to push forward with the Adjudicatory Hearing. This hearing was ordered by the APA to resolve 10 critical issues when the APA issued a notice of incomplete application in 2007. The Administrative Law Judge has recently added two more issues.

The Applicant’s push came just days after the Department of Environmental Conservation issued a notice of incomplete application on the same project. DEC had been waiting since 2007 to receive the required information from the Applicant. DEC raised serious questions regarding storm water control, sewage treatment, drinking water supply, and many other issues which could significantly change the makeup of the project.

Protect the Adirondacks! has been involved in the ACR case since its inception five years ago.  We participated in the mediation requested by the Applicant which lasted over a year and lead to no meaningful changes or compromises. Many believe that the project as now proposed is worse than the original configuration. ACR has refused to accept any compromise and now wants to proceed to the hearing despite pleas from neighboring property owners, environmental groups, and DEC to resolve the DEC issues first.

PROTECT believes that the project as now proposed will fragment wildlife habitat and adversely affect water quality. PROTECT also believes that the project is an economic house of cards that will place local taxpayers at severe risk, which is unlikely to result in significant job creation.

PROTECT is a leader in the fight to prevent the proposed Adirondack Club and Resort in Tupper Lake from doing irreparable harm to the environment and economy of the Adirondack Park. PROTECT has “party status” in the upcoming hearing on this project.

Our goal is to ensure that, if the APA issues a permit, the permit protects the environment, adheres to the requirements of the Adirondack Park Land Use and Development Plan, does not put the Town or Village of Tupper Lake at fiscal risk, and ensures a permanent reopening, with access for town residents, of the Big Tupper Ski Area.  If, as appears to be almost certain, the applicant is unwilling or unable to meet these requirements, then a permit should be denied.

The latest application is being presented by the developer as having concessions, but is not significantly different from the original. In the current application the number of homes is fewer at 651, however 31 of them will be on lots averaging 25 acres; 8 of them will be on 100+ acres. This is more Great Camp lots than were originally proposed. Also, their impacts will be increased:

  • The number of Great Camp lots has increased from 24 to 39.
  • The amount of back-country land that would be allowed to be cleared on these lots has increased from 2 acres per lot to 3 acres per lot, and there are more lots; more than doubling the amount of backcountry clearing.
  • The acreage to be occupied by these lots in Resource Management (the most protected type of APA land use area) has increased by over 85%, from 1,866 to 3,459 (almost double).
  • The length of roads and driveways in Resource Management has been increased by .6 miles, not reduced.  Roads and driveways are a major factor in habitat fragmentation.

Others points:

  • Instead of clustering ski area residences at the base of Mt Morris, they will be all over the ski area, causing more fragmentation, more erosion on steep slope, and more visual impact.
  • The applicant has refused to propose an alternative “conservation design” plan for the project, which would minimize its impacts.
  • There will be one less sewer plant; but the remaining one will discharge into a waterway that drains into Cranberry Pond.
  • The applicant also proposes to withdraw the ski area’s snowmaking water from this fragile wetland/pond, without first studying the potential impacts to the fishery and ecology of the pond.
  • The shooting school was dropped.
  • There are no guarantees that if the project fails, the taxpayers of Tupper Lake will not be left to pay the cost of maintaining the new roads and other infrastructure.

We have completed the pre-hearing conference, are nearly through discovery and have identified our expert witnesses. The next step it to issue retainers to the fee witnesses so they may start there review and prepare there testimony.  It is critical that we present the strongest case possible.

PROTECT has retained the law firm of Caffry & Flower to represent PROTECT in the Adjudicatory Hearing as they have done in all previous issues regarding the ACR.  John Caffry is one of the most respected environmental lawyers in New York with a long history of success on Adirondack Park issues. We have identified expert witnesses who must be retained to testify at the hearing. All this will be costly, but critical, if we are to be successful in reshaping the largest development project ever proposed in the Park.