THE LATEST ISSUE
The April 2008 meeting of the Adirondack Park Agency Commissioners was taken up almost entirely by the "Ski Bowl Village" resort redevelopment in North Creek. The Adirondack Park Agency Reporter was there, over the course of three days, and chronicled the debate in the April 2008 issue. The Commissioners evaluated the joint effort of the sponsor, Front Street Mountain Development [FSMD], the Town of Johnsburg and the state's Olympic Regional Development Authority [ORDA], which operates adjoining Gore Mountain.
The plan calls for 131 townhouse units, 18 single family dwellings, 10-room worker housing, five hotels of varying sizes and styles, and sundry commercial uses. Indoor and outdoor recreational facilities will be geared toward all four seasons, with skiing and tubing, golf and horseback riding.
Commissioner Richard Booth wanted to be sure the APA has oversight over all buildings, commercial and residential, architecturally and energy-conservation-wise, though he asked if the APA has authority to impose energy conservation measures.
Economic staff Stephen Erman reviewed the skier visit numbers from ORDA, reporting that the majority of them view Gore Mountain as a destination, rather than just day use. Commissioner James Townsend was skeptical.
"I found it hard to believe," he said, and Department of Economic Development designee Christopher Walsh, a skier himself, said he didn't understand how Gore could be only at 25% capacity when "the base lodge is packed now."
Erman also described projected employment figures, assessed valuation potential, and was questioned about the implications for the Town. Commissioner Frank Mezzano noted that worker housing won't appear for several years into the project, and Commissioner Leilani Ulrich asked about other provisions for affordable housing.
"The larger issue is the pressure that housing prices have in the future," said Department of State designee Richard Hoffman, adding that the resort will use up a fair amount of land designated Hamlet. He also criticized the layout and design. "The buildings by Rt. 28 are a sewage plant and storage. It's near to North Creek but not part of it."
Others questioned the maximum size of houses allowed, whether the FSMD/Town land swap is equitable, relationship to Gore's Unit Management Plan and whether fire protection is adequate.
Commissioners Richard Booth wanted a public hearing due to his questions about affordable housing, local government vulnerability if the project fails, water intake and disposal, and "because it lies in very close proximity to state land," both in Gore and Vanderwalker Wild Forest. Read who agrees with Booth on the need for more information and cross-examination of witnesses.
The Regulatory Programs Committee also voted on a resubmission of Jean Gruner's Cranberry Lake subdivision, sent to public hearing in January but withdrawn by her. Read what she did to get quick approval this time around.
Also, renewal/changes to three cell tower projects in Mayfield, Lewis and Lake George/Warrensburg, and the latest on the Adirondack Club & Resort mediation protocol [see below].
Legal Affairs Committee dusted off its plans for regulatory revision, now in its second decade of tinkering. Besides a few minor rule changes, staff wants to tighten up the eligibility requirements for inheritances, abandonment of structures and/or uses, measurement of building height, transfer of building rights from a very small pre-existing lot of record, conversion of motels and defining "second story" as it applies to boathouses. Keep up with the Reporter for promised staff presentations on these critical subjects for property owners.
Park Planning & Policy Committee members heard Department of Transportation personnel update their "Green Book" guidelines for the Adirondack Park. In the works are "Travel Corridor Management Plans," to be drawn up by "multi-disciplinary working groups" among DOT, Department of Environmental Conservation and the APA.
Enforcement Committee heard arguments from the attorney for Leroy Douglas of Silver Lake, accused of building a road in violation. Douglas contends that the road was pre-existing and just needed to be "fixed up." Enforcement staff laid out the "two-part test" for determining whether the road was there in 1983 when the Freshwater Wetlands Act was passed. A hearing is scheduled on the facts. Designee Hoffman noted that "threats of violence" create the need to hold the hearing in Ray Brook, possibly at the State Police headquarters.
Subscribers of the Reporter will see how the Ski Bowl was treated, compared to the Adirondack Club & Resort in Tupper Lake, the multi-unit ski resort complex first proposed several years ago. As publisher of this newsletter, I had objected to the use of mediation in this project as secretive and counter to the APA's own laws and regulations for public hearings. The following is the transcript of my appeal to the APA Commissioners after the hearing officer had denied my petition for party status.
APPEAL of DENIAL OF PARTY STATUS for SUSAN ALLEN by Administrative Law Judge Daniel O'Connell, Project 05-100, Adirondack Club & Resort. Presented on March 14, 2008 before the Adirondack Park Agency Commissioners.
Thank you for allowing me to speak. My name is Susan Allen. I live in Keene Valley, New York and I write the "Adirondack Park Agency Reporter," an independent newsletter covering the actions and deliberations of this agency. I have published it singlehandedly every month since December of 1991. The newsletters does not take positions on projects.
I don't think anybody has done this before -- appeal of a decision on party status. Some of you made some interesting comments yesterday, but for the record I want to state for the record that I have not had any contact with any of the Commissioners or staff regarding this appeal.
I'm going to quote my favorite President, Andrew Jackson. In 1795 he was 28 years old and still a private citizen, he had not yet been elected to any office. When he heard the outcome of the Jay Treaty, which had been negotiated in private between Chief Justice John Jay and some British lord, he was furious. He believed it was unconstitutional because "the president by and with the advice and consent of the Senate is authorized to make treaties; but in the present treaty the advice of the Senate was not required by the president prior to the formation of the treaty, nor the outlines of said treaty made known to the Senate until after made." Jackson urged his Congressman to oppose it and to "have the insulting, cringing and ignominious child of aristocratic secrecy removed, erased and obliterated from the archives of the grand republic of the United States."
I know this is not about the impressment of American sailors, but neither is the issue of secrecy a trivial and purely bureaucratic matter. I am seeking party status on this specific issue only -- the question of whether mediation should be conducted in the context of a public hearing. You may argue that this is an issue about the shape of the table, but it is an issue nonetheless. And it is an issue that has been added to the list of ten issues in your order for a public hearing, and it is not on your list of issues to be specifically excluded.
It is an issue that does have a connection (or nexus) to this project. It will change the course of this public hearing in a materially significant way, as pressures can easily be brought to bear when attempting to resolve controversial aspects of the project out of public view. These will not be sessions of peacemaking or "finding common ground." It is also an issue that can affect the course of future public hearings as it is sure to serve as precedent.
The regulation 580.7(5)(e) allows party status on an issue in which a petitioner has "an area of expertise." I fail to find in this regulation any requirement that an intervenor must take a position on a project, but I absolutely do have a position on this issue of mediation, as you can see from my previous statements.
To "demonstrate capacity" to act as a party on this issue, I am in my 17th year of continuous monthly coverage of this Agency. I have outlasted any number of Commissioners and staff. I cover everything from the highly controversial down to the excruciatingly arcane. I'm the only one who does this. Who better to ask the questions that need to be raised?
I presume that other non-statutory parties were approved because they established that they represent some wider world. My newsletter is a stand-in for the widest world possible -- the general public, which is the "social interest" that will be affected by the decision to enter into confidential negotiations. If given party status, I would question what would happen if someone from the general public might want to intervene on some issue outside of your original list of ten, but that person will not have any way of knowing that the issue has been raised, as the entirety of the process will be conducted in secret.
At the March 11th pre-hearing conference, a number of additional disturbing provisions were added to the proposed mediation process, which would further privatize this public process. It's probably out of bounds to list these here*, but I'll only give one example since Mr. Connolly mentioned it yesterday, a proposed mechanism to inform the media about what is happening in the mediation process. If given party status, I would be in a position to question that proposal.
The role of APA staff in 580.6(a) is to "act as an advocate for a full and complete record upon which an informed decision can be made." Since you as Commissioners are segregated from the process once you direct a project to a public hearing, you have no way of asking these questions. As provided in 580.7(5)(d), granting my petition for party status can only "further the purpose of the hearing."
Thank you for considering this appeal.
*These "additional disturbing provisions" are: not even the agendas for the mediation will be made public; parties will be allowed to "caucus" without all parties present, but possibly including the ALJ and/or the APA staff; parties can meet or hold conference calls outside the mediation sessions, again not requiring the presence of all parties; attempts to characterize the discussions as "trade secrets" in order to avoid the Freedom of Information Law; and attempts to find a rationale for local governments to discuss the mediation in executive session, in order to avoid the Open Meetings Law.
My appeal was denied, on the basis of being "a legal interest" that "does not lend itself to party status." However, Department of State designee Richard Hoffman and Commissioner James Townsend agreed that this is a "valid issue" and stated that the board would discuss the matter of mediation in the future.
At the Public Comment session afterward, I made a brief statement: "Thank you for considering my appeal. I understand the reason for denial, but this was the only way I could raise this issue so it would be on the record. However, I should not have had to petition for party status. Over the past few months, when you were given updates on the process, apparently you were being asked if you agreed to mediation, but you didn't know you were being asked. Mr. Townsend said earlier that you had given `tacit approval' to mediation. By not taking definitive action, I really think you fell down on the job. I hope you'll go home and read about the Jay Treaty -- how'd that work out? I'll be watching your discussions on this subject in the future. Thank you."
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