Green group: documents reveal secret talks during Big Tupper review

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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35 Comments on “Green group: documents reveal secret talks during Big Tupper review”

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  1. Thanks for the piece, Brian. I’m glad there’s one media outlet is trying to be fair to all sides in Park related-development issues. Lord knows the newspapers aren’t.

  2. ADKinLA says:

    I have no idea what the underlying law is regarding ex parte communications in this context so this is either a big find or much ado about nothing given that is a communication between attorneys regarding drafting which I can’t imagine would be prohibited (unless it is). NCPR, could you help provide some context regarding the rules at issue and how these disclosed communications might fit into it?

  3. Will Doolittle says:

    Here’s the law that I think applies:

    Unless required for the disposition of ex parte matters
    authorized by law, members or employees of an agency
    assigned to render a decision or to make findings of fact
    and conclusions of law in an adjudicatory proceeding shall
    not communicate, directly or indirectly, in connection with
    any issue of fact, with any person or party, nor, in
    connection with any issue of law, with any party or his
    representative, except upon notice and opportunity for all
    parties to participate.

    So, in this case, were all particies notified and given the opportunity to participate? I don’t know. First, who were the “parties”? Certainly, the two major parties — the APA and the developer — were participating in the communication.

  4. ADKinLA says:

    Thanks Will! There is also this qualifying language: “Unless required for the disposition of ex parte matters authorized by law” so this type of communication may in fact be acceptable under different statutes/case law.

  5. Fred says:

    Will D 1:48 pm. I know several of the parties involved in the adjudicator y
    hearings and I know for a fact that they were not notified or given the opportunity to participate in these meetings. For the record, I,m no lawyer but this revelation of these communications could have profound repercussions on the APA and their decision. That is of course dependent on the legal system which seems to be swayed easily by the party with the most cash to pay the highest priced lawyers to get their preferred decision. It is my understanding that the penalties for this type of violation could be as severe as revoking the permit that was issued for the ACR down to a simple slap on the wrist. My gut says there will be no repercussions for the APA or the ACR and its lawyers. But if the permit were to be revoked that would likley be the final straw for the ACR and down the drain it will go. And given that the chances of the ACR ever getting off the ground are about a zillion to one it really doesn’t matter.

  6. Steven says:

    Will Doolittle, there were aproximately 30 parties participating in the Adjudicatory Hearings and they were not notified of these meetings as required by law. If this was such a great project why did they feel the need to break the rules to get the APA to approve it. It gives the impression the APA was paid off by the developers. From what I read of the Foiled documents is appears Tom U was calling the shots and Van Cott was jumping just as high as he was ordered to. Certainly seems like back door shady dealings were ongoing throughout the process.

  7. Lily says:

    Haven’t we read several other stories about Van Cott’s lack of professionalism? There was a recent news story about him causing problems for a Village of Saranac LK meeting with the Trudeau Institute and, more notably, his written tirade directed at Sandy Lewis using his Government email. Is the State of NY so hard-up for lawyers that someone as incompetent as this guy keeps his job & pension regardless of his behavior? This could turn out to be another black eye for the APA.

  8. loraxII says:

    This is not just some innocent mistake by well intended people. Those emails are proof that the process at the APA was intentionally corrupted by senior people at the APA. The integrity of the process is necessary to protect everyone, no matter which side of the ACR issue one may be on. The Governor really needs to clean house at his agency.

  9. Larry says:

    Whether or not the law was violated, the appearance of shady dealing is damaging to the credibility of the APA and calls into question their judgement regarding this project.

  10. Peter Hahn says:

    There are many people who either hate the APA or hate the ACR. This “scandal” seems to work for both. Personally, I’m happy to see them trying to hammer out mutually acceptable language in a civil manner.

  11. Dave says:

    P Hahn: “mutually acceptable language in civil manner” ??? Mutually acceptable to who? The ACR and the APA to the exclusion of all the other parties involved? Why bother with an Adjudicatory Hearing process at all? So this 8 yr process was all just a joke and a huge expense to the people of NYS for no good reason? Not to mention the time and effort ALL parties spent going through the process. Reading the FIOLED emails where the developers lawyer belittles the APA Executive staff and Commissioners doesn’t seem very civil to me.

  12. I guess illegal secrecy is okay so long as it favors big developers.

    But if Lani Ulrich so much as said “hello” to John Sheehan as the two passed each other on the sidewalk, there would be an uproar.

  13. Peter Hahn says:

    It sounds to me like they are working out the language more than anything. Geez – if the all “the other parties” had to sign on to every draft change in wording, the process would take hundreds of years. (which would be fine with those trying to scuttle the project).

    I realize that the group raising this issue is trying to derail the agreement on legal grounds. They have every right to do so, and this is a reasonable tactic to try. But the rest of us don’t have to get all hysterical.

  14. don dew says:

    Conversations between parties in these hearings called a “caucus” were actually encouraged by the Administrative Law Judge. When Meave Touhre attorney for the Adirondack Council and John Caffrey Attorney for Protect strategized on how to cross examine and what experts they wanted to bring to the hearing and I as a party to this hearing was not informed of this IS THAT A VIOLATION OF EXPARTE COMMUNICATION. Of course not.

  15. Larry says:

    Nobody’s getting hysterical, just objecting to public business being done secretly. It looks bad, it is bad and any agreements reached this way should be thrown out.

  16. loraxII says:

    I don’ t think that Mr. Dew really understands that the conclusion that he stated is the correct conclusion. The facts stated by Mr. Dew have nothing to do with ex parte communications.

  17. The thing that’s weird about all this is that I’m not convinced that what happened ought to be illegal. If a developer wants to do a project in an environmentally friendly way within APA guidelines, then why shouldn’t he be able to get advice from that agency about what hoops to jump through and what t’s to cross and how to make it work. This is good for everybody. The developer creates an environmentally friendly project with adds to the economy. And the APA holds fewer hearings and doesn’t have to drag it out interminably thus spending more and more tax dollars. It seems like the law could be revised in such a way that facilitated this sort of advice seeking without compromising the public oversight part of it.

  18. Pete Klein says:

    I have a question. Why is the Sierra Club involved in any of this?
    Also, how desperate is Protect in bringing Bob Glennon into the mix? Does Protect really want to drag us back to the love fest between the so called environmentalists and the locals of the 70’s?

  19. mervel says:

    Brian is correct I think. For example when you build a new home in an existing area or add something, you usually go talk to the code enforcement people about how to do it correctly, what do they need etc. It would seem on big developments you would want and encourage developers to work with regulatory officials to avoid future problems.

    I think the issue would be if we are talking about bribery or about the regulatory agency not following state law to provide favors to the developer. But it is a good thing in general for regulatory officials to communicate with developers, the more often the better.

  20. loraxII says:

    But Mervel, we ARE talking about a regulatory agency not following state law to provide favors to the developer. If I may draw a parallel, think of it like a defense attorney presenting evidence to a judge and jury while the prosecuting attorney is excluded from the courtroom and does not have the opportunity to rebut. If this was just a routine permit application, I would agree with you but this is in the context of an adjudicatory hearing where all parties are supposed to have the opportunity to be heard.

  21. Larry says:

    When the public interest is involved everything must be open, straightforward and public. Even the appearance of secret deals must be avoided.

  22. Deep6APA says:

    One thing we should all be able to agree on, after all these years with this project, is that the APA serves no purpose any more! They wasted the developers time, drug the whole thing out, sent it to adjudicatory hearing, yet let, or atleast helped the devloper draft the conditions for the permit. How has anybody been served? The developer sunk god knows how much into defending the project. The APA wastes everbodys time on a hearing that led to a permit with a bunch a window dressing conditions that the builder was OK with in the first place. The only thing the APA accomplishes is doing just enough for job security. Smoke and Mirrors. Let the towns have their own planning boards. Abolish the APA.

  23. Deep6APA says:

    Pete, What is it with you and Bob Glennon? Please do tell. It must be good. You have dropped his name several times on a few different boards.

  24. mervel says:

    But it is not a trial. It is trying to make sure a major development is within the limits of the Park’s regulations. It would make sense that the regulatory agency would help the developer fashion a plan that was.

    Now, I think the issue is as Lorax pointed out, if the agency was by law not supposed to speak to a developer, than that is a major issue I would totally agree.

    But I have government contracts that I manage for our agency that involve regulations, I talk to state agencies ALL of the time asking how I can make sure I am in compliance and how I can fashion our proposals to meet all the regulatory requirements. The more communication the better.

  25. Pete Klein says:

    My problem with Glennon and Protect is they both appear to be an environmental version of the Tea Party. They want the past, not the future. They are desperately seeking the 70’s when everyone else has moved on.

  26. Dave says:

    “The more communication the better.”

    That is the point of the law, isn’t it?

    Giving all parties the opportunity to communicate is more communication. “Backdoor talks” between just two of the parties is less communication.

    I don’t think the problem is that the state gave the developers advice about how to craft the permit, it is that they did so in secret (so to speak) without letting the other parties know about it, or giving them the chance to be a part of it.

  27. mervel says:

    I think if the law that Mr. Doolittle quoted above holds and is applicable in this case, then yes they did not follow the law if they did not inform all of the parties, so in that case it is a major problem I agree.

  28. Pete Klein says:

    We have way too many laws. Many of them are designed by lawyers to keep lawyers in business.
    Secret talks? Everyday, everyone of us takes part in “secret talks.”
    When Common Ground met, there were secret talks going on all over the place.
    Guess we are all criminals.

  29. Brian says:

    Not surprisingly, the Post-Star has reversed its long-standing position against secrecy in public bodies in this case (while upholding its long-standing position bashing any group thinks developers should be able to do whatever they want unfettered). How typical.

  30. Paul says:

    The article this morning here on NCPR refers to Protects’s efforts as “attempting to block construction”? Is that accurate? I thought they were trying to get changes to the design of the project? My guess is that maybe they would prefer to “block” construction but they have never characterized it that way. Have we moved to a new level in the debate?

  31. Brian Mann says:

    Hi Paul – You are correct. Protect has suggested that some form of the resort might be buildable, though their description of what a viable design might like look has been starkly different than the one put forward by the developers.

    A more accurate way to describe the current situation would be that Protect wants to block construction of the resort in the form now permitted by the APA.

    –Brian, NCPR

  32. Paul says:

    Brian, thanks. If their version of a viable design is unmarketable than they have accomplished blocking the project either way. Any design might be unmarketable in this market!

  33. don dew says:

    Brian Mann, you say “Protect has suggested that some form of the resort might be buildable.” I don’t recall that being part of the Adjudicatory Hearing Record. The only alternative design that I remember being discussed was presnted by the Adirondack Council. They might be saying they would support a development centered around the ski area now but they certainly were not talking that talk then. I find it interesting that they fought every step of the APA review process then, continue to fight it in the courts now and then want to be looked at as the voice of reason.

  34. Brian Mann says:

    Don –

    I don’t remember whether Protect entered views on this matter into the hearing record.

    Here’s a statement issued by the group last week on this question.

    (I place it here not as an endorsement of their argument, but only to answer your question about their position):

    PROTECT’s precursor organizations supported responsible developments in communities such as Lake Pleasant, Brant Lake, and Old Forge where developers clustered development and worked to mitigate development impacts so that a balance was truly achieved. PROTECT has supported quality developments. ACR never even tried to meet higher standards of conservation subdivision design and planning (the APA even brought in the nation’s leader in this field for a public presentation during the time frame of the ACR project, but made no attempt to adopt these ideas) or low impact development.

    While ACR made minor adjustment to its initial project lay-out, the project design remains a bad example of rural sprawl, far from the conservation subdivision design alternatives it could have prepared. PROTECT would not have opposed a properly designed project. In fact, one of PROTECT’s precursor organizations met with the ACR representatives in 2006 and outlined viable alternatives that clustered development in RM, shielded neighbors, removed high elevation development, and implemented stormwater management.

    –Brian, NCPR

  35. don dew says:

    Thanks Brian, Again I focus on the then and now. The statement says Protect would not have opposed a properly designed project. The confrontational style they brought to the hearing certainly could leave one with a different take.

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