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Green group: documents reveal secret talks during Big Tupper review

July 19th, 2012 by Brian Mann

Green groups allege that APA chair Lani Ulrich maintained backdoor communications with developers of the Big Tupper resort, a claim state officials deny. (Photo: APA)

An environmental group called Protect the Adirondacks says it has uncovered documents showing that Adirondack Park Agency staff worked in secret with developers of the proposed resort in Tupper Lake, as part of last minute effort to reshape state permits allowing the controversial project.

If so, those negotiations could violate state laws designed to protect legal permit hearings like the one conducted for the Adirondack Club and Resort, which was approved by the APA on an 11-to-1 vote in January 2012.

Protect and the Sierra Club have filed suit in New York state Supreme Court to overturn the permits.

In new legal filings released this week, the green group disclosed a series of emails and memos that appear to show APA attorney Paul Van Cott negotiating specific changes to the permits with Thomas Ulasewicz, an attorney representing developers Michael Foxman and Tom Lawson.

"Since we are trying to find common ground," Van Cott wrote in an email dated October 2011, "and I understand this to be a condition that your client does not like, I have attempted to rework it to meet the same objective with more focus."

In another email, also dated October 2011, Van Cott asks one of the developer's consultants to provide him with "edits to the findings of fact in the draft order."

Van Cott goes on to urge the developers to submit proposed changes "this morning if possible so that we can review them and work them in?"

In their legal filing, Protect also points to emails written by Ulasewicz, the resort attorney, in which he mentions an agreement between himself and senior APA attorney John Banta, who has since retired.

"All of the changes [Van Cott], I and Banta had agreed to…will be reflected in this new posting," Ulasewicz wrote, just seven days before the APA cast its decisive vote.

In that same email, Ulasewicz suggested that he was maintaining direct lines of communication to Banta, APA executive director Terry Martino, and APA chairwoman Lani Ulrich.

"[Van Cott] offered to meet with me on Sunday if we had our comments together on the whole package," Ulasewicz wrote, "so that he could bring them to the attention of Banta and Chairwoman Ulrich first thing Monday morning."

In their lawsuit, Protect argues that these communications, occurred in secret after the formal hearing record had been closed.

"The statutes and laws prohibiting ex parte contacts in the APA deliberations prohibit both direct and indirect contacts regarding any issue of fact or conclusion of law," the group asserts.

APA officials have denied that the developers exerted any improper influence over the process, though they acknowledged that Van Cott maintained communications with the project's backers.

In his legal reply, former senior APA attorney John Banta rejected the notion that "prohibited communication regarding the ACR permit occurred."

Speaking this week, APA spokesman Keith McKeever denied that any agreements were struck between the developer and senior attorney John Banta, or that communications were passed from the developers to Ulrich.

“We categorically deny that those things occurred," McKeever said.  "The agency strictly followed ex parte communications and did not violate ex parte rules.”

Ulrich was appointed by Governor Andrew Cuomo to lead the APA and took the helm just prior to the final review of the Adirondack Club and Resort project.

Environmental activists note that documents released this week were made public through a freedom of information act request, which has only limited authority to force APA officials to disclose communications with the resort developers.

Green groups predicted that more documents would be revealed during the so-called discovery phase of the trial, when the court could in theory force the agency to release additional documents.

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Morning Read: Responding to the Adirondack Club and Resort lawsuit

May 30th, 2012 by Brian Mann

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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Is the Adirondack Club and Resort lawsuit legitimate? Sure. Here's why.

April 12th, 2012 by Brian Mann

The last couple of weeks, editorial writers, local elected officials and even some environmentalists in the North Country have chastised green groups and Tupper Lake seasonal residents for suing the Adirondack Park Agency, in an effort to overturn the permits green-lighting the Big Tupper resort project.

The suit has been described variously as cynical, frivolous, arrogant and as a downright cold-hearted blow to Tupper Lakers who are trying to revive their battered economy.

Let me say that I have absolutely no opinion about the ultimate legal merits of the suit.

I don't know how the case will be decided, though most of my sources have suggested that the court will likely give a lot of deference to the Park Agency, given the lengthy review and the lopsided vote by commissioners in favor of the permits.

But I think it's worth noting that Article 78 lawsuits of this kind can play a valuable — indeed, a crucial — long-term role in shaping how government agencies in New York state and the North Country conduct their business.

Here are three reasons why this court case is a legitimate step in the Big Tupper review process.

Claims of secret talks

First, green groups have raised a specific allegation that state officials colluded unfairly with the developers of the resort, violating strict "ex parte" rules that were designed to limit undue influence over the process.

The APA and the developers deny this vehemently, but it's a serious claim.

In the past, pro-development and local government groups have raised similar allegations about unfair conversations and backroom deals between the state and green groups.

The Adirondack Park Local Government Review Board's Fred Monroe successfully urged the state Attorney General's office to probe claims that the DEC, the APA and the Adirondack Nature Conservancy were hammering out "sweetheart" land deals behind closed doors.

The AG's office looked into the matter and found nothing untoward or inappropriate.

It may well be that these allegations regarding the ACR decision, raised by environmentalists, will be discounted by the courts in similar fashion.

But if one side in the Park's debates wants its concerns about secret talks and unfair treatment to be taken seriously, it stands to reason that the other side should also get some attention when it raises the alarm.

A lawsuit or a rallying cry?

Critics of the lawsuit have suggested that the court fight is being used by environmental groups — specifically by Protect the Adirondacks — as a way to raise public awareness, build membership, and raise money.

The Adirondack Daily Enterprise argued in an editorial that Protect the Adirondacks had "ulterior motives."

I can confirm this.  I asked the suit's backers this question point-blank and prominent activists, including Bob Glennon, acknowledged openly that they hope attention attracted by litigation will mobilize new support for their cause, particularly outside the Adirondacks.

Cynical?  Maybe.  But there's nothing new in this.  All sides in the Park's debate have used litigation, and the legal process, as a way to draw attention to their concerns and agendas.

Essex farmer Sandy Lewis made a lengthy legal battle with the APA the centerpiece of his campaign to highlight what he considered bureaucratic overreach by New York state.

Lewis — and his supporters — appeared repeatedly on an Albany AM talk radio station, portraying the legal dust-up as part of a much wider fight for property rights and Park reform.

Lake Placid snowmobile activist Jim McCulley waged a similar legal-p0litical-public-relations fight against the DEC's management of Park trails.

Now some green activists are doing exactly the same.

Which doesn't mean that groups like Protect don't also believe that their case has legal merit.  After conversations with the attorneys who filed the suit, I came away convinced that they believe that they are in the right and will prevail.

Defining the terms of engagement

Finally, the Lewis and McCulley cases highlight another potential value of court cases like this one.

Legal battles often clarify the terms of fuzzily written state regulations.

In Lewis's case, state officials were given clear new parameters by the courts, with a judge confirming that the APA has very little oversight over farm-related projects.

Other recent lawsuits in the Adirondacks have helped to clarify a wide range of issues, from navigation rights on rivers, to the legal status of lake- and river-bottoms adjacent to state-owned forest preserve, to DEC management of state-owned roads in the Park.

It may be that in this case will do the same, offering, new legal insight into sketchy and ambiguous terms in Park regulations that have baffled all sides in the debate for decades.

What exactly does "clustered" development mean?  Is it appropriate (or not) to consider the potential financial benefits of a project when evaluating whether the impacts of new construction on the environment are "undue"?

Was it possible to conclude scientifically that there would be no "undue adverse impacts" from a project of this size and complexity without doing some kind of comprehensive wildlife survey?

Hopefully, this suit will serve to shed some light on those questions.

It's far from certain, of course, that any new legal precedents will be to the liking of the environmentalists and neighbors who brought this lawsuit.

On the contrary, a final ruling in this case could well go the other way, confirming the APA's current approach to residential development on the Park's privately-owned timberland — an approach that pro-development forces favor.

All of this will be cold comfort to Tupper Lakers exhausted by years of uncertainty.  Supporters want this project to move forward as quickly as possible.

And hopefully the court's review will be expeditious.  But unpopular as it is, this stage of the Big Tupper process may well serve the long-term interests of the Park and its communities.

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Green groups, neighbors sue "rogue" APA over Adirondack Club and Resort decision

March 20th, 2012 by Brian Mann

A "rogue" Adirondack Park Agency?

In  a press release first published on the Adirondack Almanack blog, two green groups have announced plans to sue New York state to block the Adirondack Club and Resort project in Tupper Lake.

"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."

Protect and the Sierra Club say they'll file the suit challenging the APA commission's 10-to-1 vote, along with two neighbors of the massive project.

Some other green leaders, including the Adirondack Council's Brian Houseal, have questioned whether a suit is appropriate or likely to succeed, noting that the APA spent roughly 7 years reviewing the project.

The move is also certain to spark ire from local government leaders, some state officials, and from lead developers Tom Lawson and Michael Foxman.

But the activists who filed the suit say they can prove that the APA's review didn't meet state requirements.

PROTECT!, the Sierra Club and the co-petitioners charge that the APA violated…components of its legal mandate. For example, despite having formally asked the developer to prepare a four-season, comprehensive wildlife study no less than four times, the Agency approved the fragmentation of the undeveloped forest lands without ever having received it. Even more puzzling is the Agency's approval of the project on the condition that more studies of impacts to wildlife would be done after that approval, rather than beforehand.

NCPR will have more on this story Wednesday during the 8 O'clock Hour.  Green groups say they plan to brief the media on their suit Thursday morning at 11 am.

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Was the Big Tupper resort decision really a major defeat for green groups?

February 21st, 2012 by Brian Mann

In the latest edition of the Adirondack Explorer, I probed the question of what the Adirondack Club and Resort decision means for environmental groups in the Park.

Some green leaders are indignant at the notion that the 10-to-1 Adirondack Park Agency vote might signify weakness, disarray or ineffectiveness on the part of the region's environmental movement.

In an email, Adirondack Wild co-founder Dan Plumley responded this way:  “To point blame for this so-called defeat on the environmental community or concerned citizens is tantamount to bald-faced propaganda."

Here's why I thought the issue was worth writing about.

When I came to the Adirondacks 13 years ago, green groups dominated the environmental debate.  They generally framed the issues, and had remarkably strong ties to the Pataki administration.

Green groups were arrayed in a more or less strategic pantheon, with different leaders playing different roles.  There were strong indications that these partnerships were at least somewhat coordinated.

They won big battles, pushing through wilderness designations for forest preserve parcels, blocking the use of SONAR on Lake George, shutting down float planes on Lowes Lake, and

In those days, it was often difficult to find strong, informed and influential spokespeople for the local government and pro-development side of debates.

These days, all that has changed.  Pro-development groups like the Local Government Review Board and ARISE are much more sophisticated, coordinated, and politically connected.

Green groups, meanwhile, have gone through a half-decade of turmoil, as prominent leaders have departed the scene, venerable groups have dissolved, merged, reformed, and splintered yet again.

On the ACR debate, they were clearly divided, with two relatively new groups — Plumley's Adirondack Wild and Protect the Adirondacks — maintaining that allowing the project would set a hugely dangerous precedent for hte Park.

But the region's biggest group, the Adirondack Council, embraced the resort in its final design, and publicly distanced itself from the rest of the movement.

For that kind of muddle to happen in the middle of a debate that many environmentalists singled out as a seminal battle in the history of the Adirondacks — one that they spent seven years fighting — that's significant.

One prominent green leader, Peter Bauer now with the Fund for Lake George, makes a salient point in all this:

This APA commission seemed very likely to approve the Big Tupper resort in some form, no matter how unified or efficient the green movement was.

But that fact raises an even bigger question about the state of the environmental movement in the Park.  Why is it that activist groups have been unable to successfully influence the choice of APA commissioners?

Green favorite Dick Booth was chosen by Democratic Governor Eliot Spitzer to serve as chair of the APA, but that decision was easily derailed by local government leaders and by state Senator Betty Little.

(Booth now serves as a regular member of the board.)

Governor David Paterson then appointed environmental leader Peter Hornbeck to serve as an APA commissioner — at a time when Democrats controlled the entire state legislature.  Once again the pick was sidelined.

The situation is so difficult for green groups that last year Adirondack Council spokesman John Sheehan acknowledged that his organization was keeping mum about its preferences for the Park board.

"We used to publicize it but we've decided that it doesn't help those on the list so much," Sheehan said.

"If it was a Democratic governor and Democratic Senate, we wouldn't have to go to these lengths to keep it quiet."

The point here isn't to suggest that the ACR decision was the green community's "fault," or that environmentalists have somehow "lost" the APA.

The situation in the Park is obviously more nuanced and complicated than that.  But it's reasonable to look skeptically at the balance of power in the Adirondacks as it shifts and changes over time.

And I think it's fair to say that a significant shift has occurred.

So what do you think?  Do you see a different debate in the Park?  How do you view the relative strength of the pro-development and local governments inside the blue line, compared with environmental activists?

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Morning Read: Did the Adirondack Park Agency gloss over Big Tupper wildlife concerns?

February 14th, 2012 by Brian Mann

Last month's decision by state officials to allow construction of the massive Big Tupper resort continues to simmer out there.  A legal challenge could still come, with the deadline for a decision by green groups set for April 1st.

In today's Adirondack Almanack, David Gibson – co-head of the group Adirondack Wild — points to what he views as a glaring shift in how the Adirondack Park Agency treated wildlife concerns on the 6,200 acre property.

Gibson points to this passage, in official documents prepared by the APA in late October 2011.

“A comprehensive biological inventory of the project site was not conducted, so it is not possible to make specific findings concerning impacts to habitat from the proposed project or to identify the presence or location of specific areas on the project site that should be prioritized for protection.”

Gibson argues that just a few months later, the APA was sounding a very different tune.  In official documents prepared in January 2012, that paragraph is deleted and replaced with this:

“Site investigations to evaluate wildlife and wildlife habitat on the project site followed standard Agency guidelines and procedures. In addition to reviewing historical records for threatened and endangered species, qualitative biological surveys including on site visual assessments as defined in Agency guidance ‘Guidelines for Biological Surveys’ were completed during site visits. Other than identifying the deer wintering area as a key wildlife habitat, no other wildlife habitat was identified as containing threatened, endangered or species of special concern on the project site.”

During debate and discussion by the APA commission over the last several months, it became clear that wildlife surveys on the property were rudimentary at best, a fact that prompted a lot of concern even from board members who ultimately voted Yes.

State officials reported that when an independent scientist visited the property, a significant number of new amphibians were identified in a single day.  (The developer's review team failed to identify a single amphibian.)

APA board member Judith Drabicki, who represents the Conservation Department, pointed out during public discussions that DEC guidelines for evaluating endangered species concerns are significantly more rigorous than the methods used by the APA.

This may seem like yesterday's news.  But the issue Gibson raises could inform whether or not green groups sue to challenge the Big Tupper permit.

These questions could also be key to any discussion of reforming the Park Agency's procedures for reviewing big projects in the future.

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Morning Read 2: NY Times weighs in with story on Big Tupper resort

February 9th, 2012 by Brian Mann

The New York Times ran a major story on the Adirondack Club and Resort project.  As this is the first report that many influential New Yorkers will see about the development, I thought it was worth noting.

By and large, the story reported by Lisa Foderaro is fairly low-key, taking stock of the conflicts but also acknowledging that the decision was perhaps a bit less controversial that might have been expected.  Here's a sample:

In the early decades of the Adirondack Park Agency, which was formed in 1971, tensions around private-property rights occasionally turned violent.

That pitch of anger has subsided. Now even some environmental groups talk about the importance of development. One such group, the Adirondack Council, endorsed the resort plan in the end.

Check out the full article here.

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Was the Adirondack Park Agency's Big Tupper decision fixed? No.

January 24th, 2012 by Brian Mann

When I was leaving Adirondack Park Agency headquarters last Friday, after commissioners green-lighted the Adirondack Club and Resort on a 10-to-1 vote, green activist Richard Brummel walked over to share his views.

He hadn't heard the discussion inside — he was picketing outside during the final two days of testimony — but he was convinced of one thing:  the fix was in.

Approval of the Big Tupper resort had been orchestrated in Albany and the process of debate and voting in Ray Brook was window-dressing, a sham.

He pointed to the abrupt departure of APA chair Curt Stiles last summer as evidence that strings were being pulled.

Brummel's view isn"t unique in the green community.

I've spoken to a number of environmentalists who say privately that they think the review process was deliberately skewed at various stages, with APA staff forced to soften or water down their concerns.

A press release issued by Protect the Adirondacks on Friday argued that the "decision has been unduly influenced by enormous pressure from several quarters to do something to try to revive the local economy."

The APA obviously operates in a politicized atmosphere, facing pressures and influences from all sides.  It would be naive to suggest that big decisions like this happen in a complete vaccuum.

But having covered this process closely, I think speculation about this kind of big fix is off the mark.  Here's why:

- Critics suggesting that the process was fixed, or skewed unfairly, are making a serious claim about what would amount to illegal activity.  They have yet to offer any evidence to support their claims.

- My (fairly good) sources throughout the APA say this kind of manipulation didn't happen.  The hearing staff and the executive staff within the Agency concluded that the permit as written could be granted legally.

- My sources also say the APA's experienced scientists and field staff concluded independently that environmental damage caused by the resort would not be "undue."  ("Undue adverse impact" is one of the standards for denying a permit.)

- The APA is a pretty leaky ship.  If some kind of fix had been in, or if people suspected that kind of behavior, it's a safe bet that someone inside the agency would be whispering about it.  So far, no one is.

- The APA permit was voted for by Cecil Wray, a veteran commissioner with deep ties to the environmental community.   Wray is an experienced attorney and has a sterling ethical reputation.  I would need strong evidence to believe that his vote was fixed or unduly influenced by anyone.

- The one commissioner who voted No, Dick Booth, praised the overall process and raised no questions about undue influence or unfairness. Booth is a smart guy, a committed environmentalist, and a close observer of goings-on at the APA.  I have no doubt that he would speak up if he smelled a rat.

- The permit drew support from the Adirondack Council, the Park's biggest green group, which concluded that the project satisfied APA regulations and would not do undue harm to the environment.  We're they in on the fix?  Not likely.

- Lani Ulrich, the new APA chair, told NCPR that she received no phone calls, had no conversations, and received no instructions from Cuomo Administration officials or anyone else while the process was underway.  Ulrich is widely respected, even by her critics, as a straight-shooter.

Obviously, it's fair for critics to argue that APA staff and commissioners got this decision wrong.  We may see that question tested in court.

But an effort to fix the outcome unfairly would have required the collaboration of dozens of people over a period of years, all exposing themselves to significant legal peril.

As I report today, a far more plausible explanation for the environmental community's defeat on Big Tupper is that they failed to organize effectively and failed to rally around a clear set of legal arguments against the project.

As always, your comments welcome.

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How would you vote on the Big Tupper resort project?

January 20th, 2012 by Brian Mann

Would you want to be in their shoes today?

As Park Agency commissioners prepare to cast their defining votes on this project, I'm curious to hear from In Boxers.  If you were sitting in those hot seats up there today, would you vote Yes or No on this project?

Chime in below with a thumbs up or a thumbs down — and add a few sentences to explain how you reached your decision.

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Tupper Lake watches as APA prepares for Big Tupper vote

January 20th, 2012 by Brian Mann

As the Adirondack Park Agency prepares this morning to vote on the Big Tupper resort project, Tupper Lakers are watching closely.

A contingent of supporters has arrived here in Ray Brook.  Jim LaValley, head of the group ARISE, is at right.

(CORRECTION:  I said earlier that Jim was at left.  Thanks to an In Boxer who caught the error.)

A celebration is planned in Tupper Lake this evening, if commissioners vote to approve the resort.

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