Tupper Lake resort heads to Supreme Court

ALBANY – Justices in the Appellate Division of the New York state Supreme Court heard verbal arguments Monday afternoon from representatives on both sides of the Adirondack Club and Resort Article 78 lawsuit.

The justices are expected to reach a verdict within the next couple of months. That verdict could be the end of a lengthy legal battle between the state Adirondack Park Agency and ACR developers, which were sued by Protect the Adirondacks, the Sierra Club and three local landowners: Phyllis Thompson, Robert Harrison and Leslie Harrison.

Parties on the losing end of that decision would have 60 days to appeal it. The case could then go to the Court of Appeals, but only if the Appellate Division judges who made the initial decision deem it worthy.

The representatives for each side submitted briefs to the court last year. Each had 15 minutes Monday to present verbal arguments to the justices.

Attorney John Caffry represented Protect, attorney Thomas Ulasewicz represented the ACR developers and Assistant Attorney General of Counsel Susan Taylor represented the APA and the state Department of Environmental Conservation.

John Caffry

Caffry centered his argument around his assertion that the APA board failed to complete or heed its own environmental impact studies when it voted in January 2012 to issue permits to ACR developers. He said the APA’s vote violated its own laws and set an unsavory precedent for future development in the Adirondack Park.

Caffry said there were two particular areas where the APA exhibited “improper reliance on after-the-fact environmental studies.” The first was on the potential impact of using Cranberry Pond for snowmaking at the Big Tupper Ski Area.

“The APA’s decision said the impacts have not been determined, yet they went ahead, approved the project anyway, and ordered studies after the fact,” Caffry said. “They clearly made the decision without obtaining the information they were supposed to have.”

Justice William McCarthy asked if there was a two-year study in place to study the impact of snowmaking on Cranberry Pond, and Caffry said there was. Caffry said the permits state the APA can stop resort owners from drawing water from the pond, but only after five years is up.

McCarthy asked if there would be continuing oversight to monitor the pond.

“It’s a two-year study, but it could go on for five years,” Caffry said. “Enough damage could be incurred in the five years.”

Caffry said the APA also found an alternative to using Cranberry Pond. Water could be piped from Tupper Lake, but it would cost more.

“While it would be expensive, there was no testimony that it would be cost prohibitive,” Caffry said. “It would just cost a little more.”

Caffry said the APA board also used an after-the-fact amphibian impact study when it voted to approve the contracts.

Justice John Egan Jr. asked Caffry what he thought about the developers’ proposal to provide valet service to a state-owned boat launch on Tupper Lake. Caffry said providing that service would overwhelm the boat launch and prevent the public from using it.

The final point Caffry made concerned ex parte contact between the developers’ representatives, the APA’s executive staff and the governor’s office. He said the governor’s office has never denied the allegation but instead said it would be a burden to examine it.

“We think there’s a smoking gun there,” Caffry said. “The mayor of Tupper Lake (Paul Maroun) was quoted as thanking the governor for his support of the vote with the APA commissioners. That should be sufficient to allow discovery to go forward.”

Caffry said there were 18 instances of communication between the governor’s office and the APA, which he claims the APA did not include on the record. He urged the court to obtain those communications and make its own determination.

Susan Taylor

Taylor began by stating that the project would take place on private land. Egan interrupted her and asked why the APA allowed the project to include valet service to the state-owned boat launch on state Route 30.

Egan said he thought there was a study that showed the boat launch could accommodate 48 boats per day and that the ACR was projected to bring 47 boats to the boat launch per day.

“If that’s true, that means one person can launch their boat per day from the public,” Egan said.

Taylor said that was only the petitioner’s theory and noted that the boat launch is currently underutilized. Egan agreed. Taylor said the DEC does not foresee a problem with increased use of the boat launch and said a unit management planning process could address any future concerns regarding overuse.

The project, Taylor said, is in the right place because it concentrates development in an already developed area just outside the village of Tupper Lake, and all of the proposed uses are within the proper land-use areas.

“The line that separates resource management lands from moderate-intensity use lands bisects the project,” Taylor said. “Most of the development will be in the moderate to heavy-use lands.”

Taylor said the housing that would occur on resource management land would preserve that land and protect it from further development. She said the 14 permits for the project wouldn’t be issued until substantial evidence proves the developers have met all of the statutory and regulatory standards set forth by the APA.

Justice John Lahtinen asked Taylor if Cranberry Pond is deep enough to support a snowmaking operation. Taylor said she thought it was about 8 feet deep, and the impact on it would be determined by a two-year trial period. After the trial period, the permit says the APA could revoke use of the pond if it was determined that snowmaking was adversely affecting it. The permit also expires after five years, giving the APA an opportunity to refuse its renewal.

Taylor said there was a study that showed that, even if the ski area expanded its operations, the snowmaking would have no impact on the pond. She added that piping water from Tupper Lake would cost more than five times what using Cranberry Pond would cost.

McCarthy asked if the valet service to the boat launch could be considered an amenity of a commercial establishment.

“It is not commercial by nature,” Taylor said. “There will be some hotel guests who will use that, but the rest will be private homeowners. They have just as much right to use that as anybody else.”

Taylor also contended that the agency had all of the information it needed to make a decision regarding the amphibian impact study. She said there are provisions in the permits included specifically for amphibians, like low curbs and special culverts, and further studies would only serve to fine-tune existing provisions.

Thomas Ulasewicz

Ulasewicz began by reminding the justices that an existing ski area, a golf course, a state route and a village would border the ACR.

Egan again asked if there was any data that show projections for how much use of the boat launch would increase if the ACR were built.

Ulasewicz said there was no projections for use that he was aware of, and repeated what Taylor said about the DEC getting involved. He explained that the resort’s crew would only bring people’s boats to the launch and would then return to the resort, so parking would not become an issue at the site.

Ulasewicz said two separate lake steward reports show the average number of boats using the launch per day in 2009 and 2010 was 13.9. He confirmed that the current capacity for the boat launch is 48 boats per day.

“That’s 15 years off from now, before we even reach full buildout,” Ulasewicz said.

In regard to Cranberry Pond, Ulasewicz said the records show that snowmaking would have no impact on the ability of the water level in Cranberry Pond to rebound after snowmaking. He restated that the APA could shut the snowmaking operation down if it is shown to have an adverse affect on the pond

“My client has, by the way, acquired an easement from the ski area to Tupper Lake in case that alternative has come to fruition,” Ulasewicz said. “We would like to see the data gathered to determine whether there will be a significant departure from the information that we have from earlier use.”

When enacting the APA Act, the state Legislature recognized the need to preserve the Park’s environmental character while balancing the need for a strong economy. He said the ACR project fits well within those parameters.

Caffry reserved one minute of his 15 minutes to rebut the arguments made by Taylor and Caffry.

He told the court he wanted to clear up the confusion on the boat launch use numbers.

“The number of 48 was developed by the applicant’s own expert, as presented in pre-trial testimony,” Caffry said. “The number 47 per day using up all that capacity came from my cross-examination of that witness.”

Caffry said the claim that development would permanently preserve thousands of acres of land was also false.

“That’s really a red herring because they’ve already used up all of the development rights on that land,” Caffry said. “That’s a 42.7-acre area.”

Caffry then asserted that APA officials previously testified to their lack of knowledge regarding environmental impact studies on the property. He said there were many other issues he would rebut if time allowed, and again urged the court to again read the previously submitted brief to review those items.