APA hires ex-commissioner as counsel

The Adirondack Park Agency has hired James Townsend, one of its former board members, to serve as the agency’s counsel. He will replace John Banta, who retired last year.

A Rochester lawyer, Townsend sat on the APA board from 1999 to 2010. He left when he wasn’t reappointed by Governor David Paterson.

James Townsend

APA Chairwoman Lani Ulrich made the announcement today. “For more than a decade, Mr. Townsend worked tirelessly on complicated Park issues and has a proven track record of accomplishments on behalf of the Adirondacks,” she said in a prepared statement.

Environmental activists also voiced support for the appointment.

“He has a rare combination of legal expertise and skills, as well as experience in Adirondack issues and a strong conservation ethic,” said John Sheehan, spokesman for the Adirondack Council.

Peter Bauer, executive director of Protect the Adirondacks, praised Townsend for possessing “a deep passion for the Adirondack Park.”

“He will quickly establish leadership within an institution recently rocked by substandard legal and administrative review work.” Bauer said. “Protect is also hopeful that Jim Townsend can help to rebuild the APA’s role as an agency that provides independent oversight of the Forest Preserve, rather than acting as an agency subservient to the positions of the Department of Environmental Conservation.”

Bob Glennon, a former APA counsel, expressed a similar hope. “The agency is dismasted, rudderless, and, sadly, heading for the rocks,” he said. “It has simply lost sight of the mission assigned it by the legislature. May Jim recognize that and may his love for the Adirondacks translate into the aggressive environmental and preservationist leadership it sorely lacks. I wish him all the best in his new position.”

Townsend’s appointment will take effect on January 29. Click the link below to read the APA’s news release (PDF file).

APA news release

Protect seeks APA e-mails with Cuomo staff

Site of the proposed Adirondack Club and Resort. Photo by Carl Heilman II.

Protect the Adirondacks and the Sierra Club want to see e-mails between the Adirondack Park Agency and Governor Andrew Cuomo’s staff to determine if the governor’s office improperly influenced the APA’s approval of a massive resort in Tupper Lake.

John Caffry, the attorney for the two environmental groups, said the APA acknowledges that the APA and Executive Chamber exchanged e-mails on the project, but the agency refuses to divulge them.

“There is a school of thought that the governor’s office dictated the APA vote,” Caffry said, though he conceded that he doesn’t know that to be the case.

“Obviously they were very involved in the process; we don’t know what they said yet,” Caffry added.

Protect and the Sierra Club recently filed court papers seeking to force the APA to divulge the e-mails and as well as other communications, including those between the agency and the developer, Preserve Associates. They also want to take sworn depositions from all the people who took part in these communications.

The two green groups filed a lawsuit against the APA and Preserve Associates after the agency’s commissioners voted 11-1 in January to approve the resort. The suit contends that the project violates APA regulations meant to protect privately owned timberlands.

The commissioners were supposed to base their vote on the record of an adjudicatory hearing and not engage in “ex parte” discussions with the APA’s hearing staff, the developers, or other outsiders without the knowledge of all the parties to the hearing. Protect and Sierra contend that the APA violated the ex parte rule.

The groups have asked the Appellate Division of State Supreme Court to allow them to take depositions and force the APA to turn over the e-mails and other communications. The Appellate Division will consider the motion next month.

APA spokesman Keith McKeever could not be reached for comment. However, in the past he has denied that improper ex parte commissions took place.

Click here to read a news release from Protect and the Sierra Club. It includes links to documents filed in the motion.

FULL DISCLOSURE: John Caffry is defending me against landowners who contend I trespassed when I paddled through their property.

DEC on track to buy Finch lands this year

The state expects to buy the Essex Chain of Lakes this year. Photo by Carl Heilman II.

The state is on track to buy more than nineteen thousand acres of former Finch, Pruyn lands by the end of the year, according to the state Department of Environmental Conservation.

Karyn Richards of DEC’s Division of Lands and Forests outlined the department’s plans to the Adirondack Park Agency on Thursday afternoon.

Over the next five years, she said, the state will purchase sixty-nine thousand acres from the Adirondack Nature Conservancy for $49.8 million. The land will be purchased in four stages and added to the forever-wild Forest Preserve.

In the first stage, DEC will acquire the 18,318-acre Essex Chain Tract and the 944-acre Outer Gooley Tract. The larger parcel contains a series of connected ponds for paddling. The smaller parcel is located at the confluence of the Hudson and Indian rivers and will serve as a takeout for trips down the Hudson starting in Newcomb.

All told, the lands to be acquired in the first stage contain eleven lakes and ponds, 14.7 miles of Hudson shoreline, and 8.5 miles of Cedar River shoreline.

However, even if the state buys the land this year, most of it will not be open to the public until next fall.

When the Nature Conservancy purchased the Finch, Pruyn lands, it agreed to allow hunting clubs to continue leasing tracts of timberlands through 2018. The annual leases can be modified to allow public access; however, in the case of the Essex Chain Tract, the changes in the leases will not take effect until next fall.

Conservancy spokeswoman Connie Prickett said some land along the Hudson—including the takeout at the Indian River—is not leased the public and will be open to the public earlier.

Lands to be acquired in the other stages are:

• Boreas Ponds, 22,081 acres that includes Boreas Pond, Boreas Mountain, and Ragged Mountain.
• MacIntyre Works, 11,950 acres, including ten miles of Hudson shoreline and 13.5 miles of Opalescent River shoreline.
• Southern & Smaller Parcels, 15,865 scattered parcels, including OK Slip Falls, the tallest waterfall in the Adirondacks, and two miles of Hudson shoreline.

Richards said DEC doesn’t know which lands will be purchased next.

Click here to read a detailed account of the Finch, Pruyn deal in the September/October issue of the Adirondack Explorer.

Groups say ACR permits expired

Preserve Associates plans to build a resort near the Big Tupper Ski Area. Photo by Carl Heilman II.

Protect the Adirondacks and the Sierra Club contend that the permits for the Adirondack Club and Resort in Tupper Lake have expired and the developer must begin the lengthy application process all over again.

In January, the Adirondack Park Agency approved the permits with conditions. Among them, the developers were told to conduct a wildlife survey.

John Caffry, the attorney for the two environmental groups, asserts in a letter to the APA that under the APA Act, permits expire if the conditions are not met after six months. He says the deadline passed on July 31.

“If the Project Sponsor wishes to proceed with the Project, it will have to begin the application process again,” Caffry wrote.

The original application process took more than seven years.

APA spokesman Keith McKeever denied today that the permits have expired. “The ACR Project Order specifies a 10 year time period for the project sponsor to complete all requirements necessary to obtain permits and convey the first authorized lot,” he said in an e-mail.

Protect the Adirondacks and the Sierra Club are suing the APA in an effort to nullify approval of the resort. The groups contend that the development would, among other things, violate regulations intended to protect tracts classified as Resource Management, the strictest of the agency’s six zoning categories for private lands.

The lawsuit has angered residents in Tupper Lake who see the resort as an economic boon for the community.

Preserve Associates plans to build a 719-unit resort on 6,200 acres of forestland near the Big Tupper Ski Area. The development will include so-called Great Camps, single-family homes, town houses, a sixty-room hotel, a restaurant, shops, a health spa, and a marina. Preserve Associates also intends to expand and renovate the ski area. The Great Camp estates would subdivide a large tract of timberlands classified as Resource Management.

Click here to read the news release of Protect the Adirondacks and Caffry’s letter to the APA.

Protect files brief in Tupper Lake suit

Protect the Adirondacks has submitted a lengthy reply brief in its lawsuit against the Adirondack Club and Resort in Tupper Lake. Protect is responding to the claims of the Adirondack Park Agency in its answer to the suit.

Among other things, Protect contends the project violates regulations for lands classified as Resource Management, the APA’s strictest zoning category for private property.

Protect also reasserts that the APA staff conducted illegal negotiations with the developers and that the agency approved the project without requiring a wildlife study beforehand.

We haven’t had time to read the brief in its entirety, but those interested can read it themselves by clicking the link below.

Protect reply brief

You can find a news release and links to more documents on Protect’s website.

APA approves Tupper Lake resort

Tupper Lake resident James Lanthier demonstrates outside the APA in favor of the Adirondack Club and Resort. Photo by Phil Brown.

The Adirondack Park Agency voted 10-1 today to approve the controversial Adirondack Club and Resort, the largest development ever to come before the agency.

Several commissioners said they had concerns about the project—including what they described as the developers’ optimistic sales projections—but they concluded that it fell within the APA’s regulations.

The commissioners agreed with the agency’s staff that the resort would not cause an “undue adverse environmental impact” and expressed hope that it would boost the fortunes of Tupper Lake.

Tupper Lakes hopes the resort will revive its downtown. Photo by Susan Bibeau.

“This brings the opportunity of economic development to Tupper Lake, something that’s badly needed,” said Commissioner William Thomas.

Tupper Lake residents in the audience applauded when the decision was announced, and several thanked the board afterward.

Preserve Associates plans to build a 719-unit resort on 6,200 acres of forestland near the Big Tupper Ski Area. The development will include so-called Great Camps, single-family homes, town houses, a sixty-room hotel, a restaurant, shops, a health spa, and a marina. Preserve Associates also intends to expand and renovate the ski area.

Michael Foxman, one of the principal developers, began his quest for an APA permit eight years ago. At the time, he said, he was told the process would take eight months. Had he known it would take as long as it did, he added, he probably would not have pursued the project.

Foxman still needs to obtain permits from the state Department of Environmental Conservation and Department of Health and work out a financing deal with the Franklin County Industrial Development Agency.

After the APA vote, Foxman said he hopes to break ground in 2013. Preserve Associates plans to begin the development by selling Great Camp lots east of Lake Simond and work their way west toward the ski area. Asked if he has any buyers lined up, Foxman replied, “We have people we have been talking to for five years. Some are still interested, some might not be.”

Richard Booth was the only commissioner to vote against the permit. He called the developers’ sales projections—and thus the benefits to the community—unrealistic. He also faulted Preserve Associates for failing to undertake a comprehensive survey of wildlife on the property. Finally, he contended that the development is not compatible with the agency’s guidelines for Resource Management lands.

Most of the development will occur on lands classified as Resource Management, the strictest of the APA’s zoning categories. The agency’s Land Use and Development Plan defines Resource Management as open-space lands whose “primary uses” include forestry, agriculture, and hunting. However, the plan allows the construction of single-family homes “on substantial acreages or in small clusters.” The APA has never defined “substantial acreages” or “small clusters,” but Booth asserted that the design of the Adirondack Club and Resort, spread over thousands of acres, disturbs Resource Management lands “in a way that I think is not necessary and not acceptable.”

Environmental organizations such as the Adirondack Council and Adirondack Wild pressed Preserve Associates to come up with an alternative design to cluster the development more. Many of the complaints were aimed at the Great Camps, most of which will be built on lots ranging from twenty to a hundred acres. Because the thirty-nine Great Camps will be scattered throughout the tract, critics argue that they will fragment the forest and disturb wildlife habitat.

Preserve Associates stuck to its design, with several modifications, but it did agree to prohibit any further subdivision of the Great Camp lots. In the end, the changes were enough to win the support of the Adirondack Council.

“We didn’t get everything we wanted, but we got enough,” said Brian Houseal, the council’s executive director.

Houseal said the council wanted Preserve Associates to refrain from developing the lands east of Lake Simond, which border the 14,600-acre Follensby Park. The Follensby tract is owned by the Nature Conservancy, which plans to sell it to the state sometime in the next several years.

Adirondack Wild, however, remained fiercely opposed to the project. David Gibson, one of the group’s founders, called the APA vote “the most significantly bad decision they’ve ever made in the [twenty-plus] years I’ve observed this agency.”

Gibson said much of the development should have been moved from Resource Management to lands classified Moderate Intensity Use, a less-stringent zoning category. “There were so many other [design] alternatives with 6,200 acres to get it right,” he said.

Gibson said he did not know if Adirondack Wild would challenge the decision in court.

Another environmental group, Protect the Adirondacks, also opposed the project as designed.

APA writes draft permit for Tupper resort

The Adirondack Club and Resort would be built on forested lands near the Big Tupper Ski Area. Photo by Carl Heilman II.

After six years of public debate, the Adirondack Park Agency’s staff has written a draft permit for the Adirondack Club and Resort in Tupper Lake, finding that the resort would comply with the law if it meets all the conditions of the permit.

The APA board, which is scheduled to vote next Friday, could approve the draft permit, approve it with modifications, or reject it. Among other things, the board must decide whether the project will cause an “undue adverse environmental impact.”

Two environmental activists disagree on whether the project as described in the permit passes the test.

Brian Houseal, executive director of the Adirondack Council, said he is happy with the changes required by the draft permit. “The developer has designed the project within the existing regulations,” he said.

Houseal said he is especially pleased that no further subdivision will be allowed on the land occupied by the so-called Great Camps. As a result, he said, the fragmentation of wildlife habitat will be limited.

“The changes imposed by the APA will probably avoid undue adverse environmental impact,” Houseal said. “Is that a win for the environmental community? Yes.”

But David Gibson of Adirondack Wild contends that the board should reject the permit. Most of the Great Camps will be built on lands classified as Resource Management, where typical uses are forestry, agriculture, and recreation. Residential development is allowed only “on substantial acreages or in small clusters.” Gibson said many of the Great Camps will be built on fifteen- or twenty-acre lots. “It doesn’t meet the criterion for Resource Management,” Gibson said. “Most of the Adirondack Club and Resort could not be defined as being on substantial acreage or in small clusters.”

Gibson also said the developers failed to conduct a thorough study of wildlife on the property. Houseal, however, pointed out that the draft permit now requires the developers to undertake an amphibian study.

Adirondack Wild wants adjudicatory hearings reopened to address wildlife impacts and other issues, but Houseal disagrees.

“It’s time to have a decision here,” Houseal said. “I appreciate Adirondack Wild’s motion to put it back in the hearing, but we need to have a decision.”

Preserve Associates wants to build a 719-unit resort—a mixture of single- and multi-family homes—on some 6,200 acres near the Big Tupper Ski Area. It would be the largest development ever approved by the APA.

Despite writing a draft permit, the APA staff did not make a recommendation to approve or reject the project. APA spokesman Keith McKeever said this was due partly to the complexity of the project. “It’s up to the board to make a decision,” he said.

If the developers win the APA’s go-ahead, they will still need to obtain water-quality permits from the state Department of Environmental Conservation and financing approvals from the Franklin County Industrial Development Agency. Houseal argues that one lesson of the drawn-out process is that permits for future projects should be considered together, not separately.

Click here to download the draft permit and conditions.

The APA’s slippery criteria

Preserve Associates wants to build a 706-unit development near the Big Tupper Ski Area. Photo by Carl Heilman II.

Resource Management is the most restrictive zoning category for private land in the Adirondack Park. In the debate over the Adirondack Club and Resort, one of the big questions is whether the proposed resort is suitable for RM lands.

Essentially, RM lands are timberlands. The Adirondack Park Agency Act says the primary (or best) uses of such lands include forestry, agriculture, and recreation. Housing developments are considered “secondary uses.”

The law says that residential development on RM lands is permissible “on substantial acreages or in small clusters on carefully selected and well designed sites.”

The developers contend that their design meets the standard, whereas their opponents say it doesn’t.

The APA board, which began reviewing the project Thursday, will have to decide who is right. That won’t be a simple task: APA regulations fail to define either “substantial acreages” or “small clusters.”

The developers, Preserve Associates, want to build 706 housing units on 6,234 acres near the Big Tupper Ski Area in the town of Tupper Lake. The development would include 206 single-family homes, 453 townhouse units (in 125 buildings), thirty-nine Great Camps, and eight artist cabins.

Much of the debate revolves around the Great Camps. Critics argue that these rustic mansions would be scattered around in such a way as to fragment the forest and diminish wildlife habitat.

Most of the Great Camps would be built on lots ranging from twenty to thirty acres. Eight of them would be built on larger lots, ranging from 111 to 1,211 acres.

Since most of the Great Camps would be on RM lands, the APA board will be applying the “substantial acreage” and “small clusters” tests.

APA attorney Sarah Reynolds told the board Thursday that the agency’s staff does not regard the smaller lots as “substantial acreages.” The staff feels that the larger lots do meet the criterion. But Dan Plumley of Adirondack Wild contends that “substantial acreages” should be applied only to tracts of at least a few thousand acres.

If any of the Great Camps are not on substantial acreages, the board will need to decide whether they meet the “small clusters” criterion.

Preserve Associates argues that the resort does employ cluster development in that most of the land will remain in open space. Green groups disagree. The Adirondack Council has proposed three alternative designs that would preserve more open space. In the council’s preferred design, all of the development would take place on 750 acres west of Read Road, leaving 80 percent of the land untouched. Likewise, Protect the Adirondacks proposes that most of the Great Camps be built on lots ranging from two to five acres—again leaving most of the land undeveloped.

And what if the Great Camps meet neither criterion?

That, too, is up for debate. Protect the Adirondacks argues that the criteria are mandatory, but the developers say they’re not. The APA staff agrees with the developers, but the board is not bound by the staff’s interpretation.

In short, the board is tasked with making a decision on a huge (and controversial) development without knowing what the criteria mean or even if the criteria must be applied.

By the way, no one knows what “forest fragmentation” means either.

Ulrich picked to lead APA board

Governor Andrew Cuomo has chosen Lani Ulrich to take the helm of the Adirondack Park Agency board and nominated Wanakena resident Sherman Craig to a vacant seat on the body.

Lani Ulrich

Ulrich, an APA commissioner since 2004, had emerged as a consensus candidate to replace Curt Stiles, who resigned in August after four years as the board’s chairman.

“She gets along with both conservation organizations and local government,” said John Sheehan, a spokesman for the Adirondack Council. “We think she’ll steer a wise course.”

Fred Monroe, executive director of the Local Government Review Board, an APA watchdog, also has spoken favorably of Ulrich. “I think she takes a balanced approach, and she’s always willing to listen to local government positions,” he told North Country Public Radio in September.

Ulrich, an Old Forge resident, ran afoul of APA shoreline-setback regulations this year. APA spokesman Keith McKeever said her dock on the Middle Branch of the Moose River and the steps leading to it exceeded 100 square feet, the maximum allowed under the law. He said Ulrich fixed the problem by removing some of the steps.

Sherman Craig is a retired teacher and avid hiker who has lived on the Oswegatchie River in Wanakena since 2001. He is chairman of Five Ponds Partners, an organization that created the Cranberry Lake 50—a fifty-mile trail that circles Cranberry Lake.

Click here to read the governor’s news release on the appointments.

Driving to Marcy Dam?

Jim McCulley walks along the Old Mountain Road in the Sentinel Range Wilderness. Photo by Susan Bibeau

Imagine how the High Peaks Wilderness would change if people were allowed to drive to Marcy Dam or Indian Pass. The Adirondack Park Agency raises this possibility in a legal brief filed last week in the long and convoluted dispute over the Old Mountain Road in the Sentinel Range Wilderness.

The Old Mountain Road is now used as a trail for hiking and cross-country skiing, but in May 2009 the state’s environmental conservation commissioner ruled that the route was never legally closed and thus, theoretically, could be reopened to motor vehicles.

If allowed to stand, the decision could be cited as a precedent for reopening other old roads in the Forest Preserve, according to the APA.

Jim McCulley, the president of the Lake Placid Snowmobile Club, touched off the battle in 2005 when he drove his pickup truck onto Old Mountain Road. Motorized vehicles are not allowed in Wilderness Areas, but McCulley contended that the road had never been legally closed. He was ticketed by the state Department of Environmental Conservation.

DEC Commissioner Pete Grannis agreed with McCulley and dismissed the ticket. But DEC’s staff, in a motion filed by DEC attorney Randall Young, contended that Grannis misinterpreted the law and asked for a clarification of the decision. Young is not seeking to reinstate McCulley’s ticket, but he has argued that Grannis’s ruling raises questions about the status of other roads in the Forest Preserve.

The APA sides with Young on this point. In its brief, the APA mentions the old truck trail to Marcy Dam and the trail through Indian Pass as two old roads at risk of being reopened to motor vehicles—both of which are in the High Peaks Wilderness.

“These are just two among many recreational trails that occupy the track of 19^th century roads and are placed in question by the argument in the Commissioner’s [ruling],” the APA says.

The APA argues that Grannis’s ruling violates the Adirondack Park State Land Master Plan, which sets forth the rules for the management of Wilderness Areas. In essence, the APA contends, Grannis modified the master plan by altering the status of the road. The APA says only its board can modify the master plan.

The Adirondack Council also filed a brief in the case. The council also says the Grannis decision could lead to the reopening of roads in other parts of the Forest Preserve, endangering flora and fauna and damaging trails.

Click here to read a story in the Adirondack Explorer about the implications of the Grannis ruling.

The decision on whether to clarify the ruling lies with Administrative Law Judge Louis Alexander.

McCulley’s lawyer, Matt Norfolk of Lake Placid, said in his brief opposing the motion for clarification that his client will not recognize any order that alters the Grannis decision. “The motions for clarification and reconsideration … have made this particular administrative proceeding to be a spectacle of lawlessness and abuse of process,” Norfolk asserts.

Norfolk also contends that the APA filed its brief after the 5 p.m. deadline on March 18. In a letter to Alexander, he asks that the agency’s brief be rejected as untimely.

Click the links below the read the briefs filed by the APA, the Adirondack Council, and Norfolk.

APA brief PDF

Adk Council brief PDF

Norfolk brief PDF