Morning Read: Responding to the Adirondack Club and Resort lawsuit

Phil Brown from the Adirondack Explorer reported late yesterday in the Adirondack Almanack that the Adirondack Park Agency and the developers of the proposed Adirondack Club and Resort in Tupper Lake have responded to the lawsuit over the project filed by Protect the Adirondacks and the Sierra Club.

Brown reports that a key argument in the suit hinges on how you interpret language dealing with residential development on private land in the Park zoned for “resource management” use.  Here’s the nut of the issue, according to Brown:

The plan states that that residential development is allowed on RM land “on substantial acreages or in small clusters on carefully selected and well-designed sites.”

That appears to be an either/or proposition, or at least so I thought. After the APA board approved the project in January, I asked agency officials which of the two criteria was met. Would the lot sizes amount to “substantial acreages”? Or would the homes be arranged in “small clusters”? Or perhaps some of both?

I could not get a clear answer from the APA. Protect and the Sierra Club, however, contend that the project meets neither criterion. “There is nothing optional about this statutory language,” they assert in the lawsuit. “It is not conceptual guidance. It is a mandate.”

But the APA and the developers, Preserve Associates, are arguing in their answers to the lawsuit that the either/or language does not constitute a legal requirement. The APA denies the complainants’ assertion without elaboration. The developers quote extensively from the testimony of Mark Sengenberger, the former deputy director of regulatory programs at the APA.

In his testimony, Sengenberger calls the two criteria “important considerations for reducing impacts rather than as inflexible mandates that may or may not make sense in a given factual context or for a given applicant.”

So there you go.  Check out Brown’s full article in the Almanack here.

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23 Comments on “Morning Read: Responding to the Adirondack Club and Resort lawsuit”

  1. don dew says:

    Brian, YNN has reported that if the great camp lots are reconfigured and a wildlife assesment is complete the “environmental” group would withdraw the lawsuit. I am not a lawyer but this sounds like extortion to me. I wonder who is saying this and what environmental group they represent Sierra or Protect. Enjoy This Nice Day! Don Dew Jr.

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  2. jeff says:

    I am familiar with timber harvesting in urban eastern Pennsylvania on lots under 10 acres. A major sawmill has survived years in that environment. Substantial acreage is not needed in order to be a resource. Small lots can work too. I’ve been on this tract- it could hide a lot more structures than planned.

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  3. Pete Klein says:

    What this is all about is +$100 an hour lawyers wanting to make some money and have some fun while they play word games.

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  4. Paul says:

    “I asked agency officials which of the two criteria was met. Would the lot sizes amount to “substantial acreages”? Or would the homes be arranged in “small clusters”? Or perhaps some of both?”

    It seems pretty clear that it is both. The planned development around the ski center is obviously clustered and on average the “great camp” lots far exceed the minimum acreage required under the statute. From an environmental perspective the fact that some of the camps are on smaller lots and not sprawled out over the property is probably a good decision by the agency.

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  5. Paul says:

    Pete, 100+ an hour? Where am I going to find a good attorney that works for that kind of chicken scratch?

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  6. Pete Klein says:

    Paul, I wasn’t suggesting you could find a “good” lawyer for that amount. Some charge much, much more. But I would suggest that not all good lawyers charge that much and some lousy lawyers charge much more.

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  7. Phil says:

    Paul, most of the Great Camps are on lots smaller than 42.7 acres, the minimum average lot size for RM lands. According to the legal papers, APA staff says these camps are not “substantial acreages” or “in small clusters.”

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  8. Paul says:

    Phil, if the camps on average for the project have at least 42.7 acres (BTW who came up with this number?) and the development is on almost 5000 acres then it almost seems like the plan covers both criteria if you have to have many of them on smaller lots. The “legal papers” you refer to maybe saying that yes specific dwellings do not fit these criteria if viewed as separate permitted projects. But in the end the decision here is based on the whole project. As I understand it now much of the rest of the property is placed under deed restrictions for future development. That is a balance that on the whole is probably better than spreading out these camps.

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  9. Phil says:

    Paul, the environmental groups do not view this project as a good example of cluster development. Because the APA has never defined clustering, though, people are more or less free to define it however they want. As I mentioned in the article, I asked APA officials if the project meets the clustering criterion or substantial acreages criterion or both. I did not get a clear answer. With the criteria undefined and uncertainty about whether the criteria are mandatory, we are left wallowing in ambiguity.

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  10. don dew says:

    Phil, ” With the criteria undefined and uncertainty about whether the criteria are mandatory, we are left wallowing in ambiguity” You nailed it on the head! You are 100 percent correct. The entire APA statute has loads of ambigutiy that make it very difficult for all points of view to work with. As party to the Adjuciatory Process and involved with the ACR project from day one, it became obvious that the ambiguity you are refering to frustrated environmental groups,supporting parties, the applicant,and even the Administrative Law Judge (familiar with Dec hearings not APA). Some people are claiming that this lawsuit will help clarify some of that ambiguity and that may have some impact on future applicants, but a system that relies on the Courts to clarify its intent is a very flawed system. The entire APA act needs complete top to bottom legislative review. Don Dew Jr.

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  11. Paul says:

    “wallowing in ambiguity”

    This is a complicated question. This could also be seen as “flexibility” for the agency. This is not necessarily a terrible thing.

    For example you could just have a set rule that says 1 SFD per 42 acres no questions asked, no exceptions. In this case it would mean changes to the application that would lead to smaller lots for some and larger lots for others. Basically creating more sprawl. Maybe what the agency was trying to do here is find a balance. We allow the developer now to build a few more structures based on the density restrictions in exchange for that he sets aside many acres of land and leaves it off limits for further development. Take out the “ambiguity” and you may lose some of the flexibility. Making or changing this legislation is not going to be a one sided deal that some group like the Adirondack Council want. Things just don’t work that way.

    But I agree with the above comments regarding this “ambiguity”. If they want to set the rules in a clearer fashion then you won’t even need a regulatory agency. You will simply have zoning rules that will have to be followed.

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  12. Phil says:

    Paul, I think “ambiguity” is the right word, and ambiguity is not good for anybody, applicant or opponent. It may be one reason this process took seven years. Not only do we not know what “clustering” means, we don’t know if it’s a mandate or merely a suggestion. That’s too much flexibility.

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  13. Whocares says:

    This whole lawsuit appears to be a major waste of time. From all indications the ACR has no prospects of happening anytime in the foreseable future. They have no money, they haven’t even purchased the property. Tom Lawson has developed a reputation in the Tri Lakes and beyond as someone you don’t want to do business with, at least if you expect to get paid for your services. Word is that all his suppliers have cut him off(except maybe TL Supply), there is no work going on at the building on Park St in TL they are renovating. The ACR is way behind on their property and school taxes, Lawson still has over $538000. in federal tax liens against him for failure to pay his income taxes for 07-09. When this whole project was announce during the peak of the real estate bubble it was dubious at best, at this point it is absolutely ridiculous.

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  14. Pete Klein says:

    In case you really need to know and don’t want to pay a judge or a lawyer, a cluster is a close group of anything. Clustering would be to put things close together.
    I imagine the “smart people” would like to argue about how close things need to be to be clustered.
    I guess NYC is a good example of a clustered development project. Would that mean that Albany isn’t a good example of a clustered development project.
    Do we really need judges to decide such nonsense?

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  15. dave says:

    I’d like to think that the spirit of these regulations are clear and that people would honestly follow them without constantly looking for loopholes and seeking “gotchas” in the language.

    However, in my short experience following APA issues, flexibility in the language leads to one thing… abuse.

    I am not sure how anyone – other than a lawyer looking for these loopholes, or someone looking to benefit from them – can read the description of Resource Management lands and think that large resorts is what was envisioned for these areas.

    Reminds me an awful lot of the folks who abused the heck out of the boathouse rules because that regulation didn’t specifically list out all of the possible things a boathouse is not. (it is not a party deck for you to BBQ on, it is not an apartment for your nephew, etc)

    It feels like unless you define these terms – be it boathouses or clustering – in ways that are airtight and crystal clear, there will always be people looking to push the envelope of their definitions for personal and financial gain.

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  16. Bob S says:

    So we decide that we have a right to have a say as to what a man wants to do with his own private property despite the fact that we do not contribute anything to the cost of ownership. We create the APA to represent our so called interest in the property and subject the owner to about seven years of scrutiny with which he complies. When all is said and done the agency we have created approves his project and now we force him to litigate the question as to weather our own representative agency has adequately represented “our” interest. What?

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  17. Larry says:

    “Do we really need judges to decide such nonsense?”

    No Pete, maybe you can decide for us. On the other hand, anarchy is always an alternative.

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  18. Pete Klein says:

    If you don’t know what a word means, I guess you need someone other than a dictionary to tell you what it means.

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  19. Walker says:

    Yeah, Pete, I don’t often agree with Larry, but jeez! You think common sense rules the world? Not on this planet it doesn’t!

    And you figure we can all agree without further discussion that the housing density in Albany is too low to count as “clustered”? Common sense dictates that any housing density less than New York City is not clustered? And which part of NYC?

    Gee, I kinda think that housing in parts of Saranac Lake is clustered– there are houses here that are built all of eight feet from their neighbors. There’s even some town houses.

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  20. Walker says:

    “…I guess you need someone other than a dictionary to tell you what it means.”

    Cluster: “a group of buildings and especially houses built close together on a sizable tract in order to preserve open spaces larger than the individual yard for common recreation.”

    How close is “close”? How sizable is “sizable”?

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  21. Paul says:

    “Because the APA has never defined clustering, though, people are more or less free to define it however they want”

    Phil, if you want to know what it is we simply need to look at what the agency has done on RM lands in the past. There must be some precedent? What have they allowed applicants to do to date?

    In the absence of a clear definition precedent is the next best thing.

    The Brandeth project has what I would call clustering. It is probably even defined that way in the application and permit. The Champion/HFFIII permits allow single family dwellings on what I think any reasonable person would call substantial acreage (not the existing hunting camps but the SFD they are allowed to build in addition to the camps). If they are the only precedent than this project meets the standard in some instances and goes beyond it in others. But clearly it falls under what the APA feels meets the statute or we wouldn’t have issued permits?

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  22. Paul says:

    Clustering seems like a good thing if you can hook into the towns septic system but is the best thing for the environment when you have to use septic or have on-site treatment facilities?

    It seems like much of the clustering you do see in places is more by necessity rather than choice. For example you are trying to jam a bunch of condos slope-side or on the beach. For this project you might have seen it if they had decided to develop the Racquette river frontage that they have but instead they decided to leave that sensitive area undeveloped. Again maybe a fair balance.

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  23. Paul says:

    If you look at what some groups are asking for as far as changes to the APA act it looks to me like they want to have their cake and eat it too. They want the regulations to be made more strict and at the same time they probably want to retain the “ambiguity” that allows the agency to give in one area in order to gain a lower impact on the environment in another. Why have they not said that we should toss language like “undue adverse impact”? This certainly makes for more ambiguity than not defining “clustered” more specifically.

    Hypothetical: If all the “great camp” lots were 42.7 acres, the rest of the development was “clustered” at the ski area and perhaps some along the river frontage, a wildlife survey was completed showing that no rare or endangered species would be impacted, and the developer be allowed to later fully develop the vast majority of the land (that was left undeveloped under this application) under these same rules would everyone be happy?

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