Judge limits delay for Tupper resort lawsuit (update)

TUPPER LAKE – A judge this week rejected most of a motion that could have significantly delayed a lawsuit challenging the state Adirondack Park Agency’s approval of the Adirondack Club and Resort.

ACR developers are calling the decision a win, while one of the environmental groups who were denied downplayed its significance.

Judge Richard M. Platkin, acting justice of the state Supreme Court in the Third Judicial District, wrote in a ruling dated Tuesday that he is rejecting the request by Protect the Adirondacks, the Sierra Club and three neighboring landowners to carry out broad discovery actions.

The plaintiffs have accused APA members of engaging in inappropriate ex parte communications, and they requested in a motion to gain access to more documents and to depose anyone who may have been involved in the alleged communications or may have knowledge of it, as well as voting members of the APA board and anyone else who may have relevant information to the alleged communications.

Platkin rejected that request and two other parts of the motion, only granting that one part of a document be made public.

“The Court is not persuaded that petitioners’ interest in pursuing additional evidence of alleged improper ex parte communications outweighs the burdens attendant to the wide ranging disclosure they seek,” the Judge writes in the decision.

The judge notes that the petitioners claim to already possess irrefutable proof that ex parte communications happened, so “there is limited necessity associated with their sweeping effort to obtain ‘even more’ evidence.”

He also notes that the request is broad rather than “carefully tailored” to “sharpen the issues,” as previous case law sets out as necessary to grant such a motion.

“Petitioners propose to undertake a wide ranging, unfocused and intrusive inquiry,” he writes.

The judge notes that the discovery would cause substantial delays and incur significant cost to the parties involved. Deposing APA board members and agency staff would also take their time away “from their important stewardship duties,” he writes.


Protect and the other challengers also requested in their motion a full transcript of the APA board’s deliberations during three consecutive monthly meetings.

Platkin rejected that request, saying the petitioners didn’t prove there are laws that require the APA to provide such a transcript. The petitioners cited several cases they believed to be relevant, but Platkin said those cases aren’t equivalent.

The judge notes that the APA provided 22,270 pages of information, including a complete transcript of the 19-day adjudicatory hearing on the project, as well as electronic video recordings of all the agency’s deliberations, which were held in open session.

“In camera” inspection

The petitioners also asked that the court be able to inspect a Jan. 10, 2012, memo from APA Counsel John Banta, who has since retired, to members of the APA. They wanted the inspection to be done privately by the judge, or “in camera,” to check whether the APA was correct in denying the memo from being released by the petitioners’ Freedom of Information request.

Platkin inspected it and agreed that it is protected by attorney-client privilege.

“It is predominantly of a legal character, was made for the purpose of rendering legal advice and was intended to be confidential,” Platkin wrote.

But there was one six-page attachment to the memo, which summarizes the financial impact and economic benefits associated with the project, that Platkin ruled is not privileged. He ordered that document be released and made part of the record of the administrative proceeding.


Lead ACR developer referred to the decision as an expected victory.

“It’s fine,” Foxman said. “We won, and the other side never expected to win, and they didn’t.”

The case was sent from state Appellate Court to a lower court in December to make a determination on the discovery motion. ACR attorney Bob Sweeney said this week’s decision bumps the case back up to the state Supreme Court’s Appellate Division.

Sweeney said the discovery had the potential to slow the case down.

“We’re very pleased that the discovery was denied and that this case is headed for disposition in the Appellate Division,” Sweeney said. “That gets us back on track.”

Protect Executive Director Peter Bauer said he doesn’t see it as a setback.

“It doesn’t deal in any way with the merits of any of the allegations that we brought,” Bauer said. “We see this really as a procedural matter.”

Protect’s lawyers were in a tough position when arguing their case for discovery, Bauer said. They had to try to argue that they had enough information to prove that there was more to get, but they ran the risk of making it sound like they had plenty of proof and didn’t need more, which is what happened.

“We were at a little bit of a disadvantage because we had to argue both ways,” Bauer said.

He said that he’s waiting to hear from Protect’s attorneys and that the organization hasn’t made any decisions about how to move forward yet.

“There are several options that we could undertake,” including an appeal or at least a partial appeal of the decision, Bauer said. “We’re looking at all of that.”

Bauer noted that his group has also filed a separate lawsuit challenging the APA’s refusal of Freedom of Information requests for certain documents. He said they were waiting to see what happened with the discovery motion before moving forward with that case, but he said they will likely do so now.

“That may be a better venue in the long run to make these arguments about what materials are accessible to the public, what are privileged,” he said.

Contact Jessica Collier at 518-891-2600 ext. 26 or jcollier@adirondackdailyenterprise.com.