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Adjudicatory Hearing Round II – Day One

April 27, 2011 by · Leave a Comment 


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By Dan McClelland, Tupper Lake Free Press

Round II Day One of the Adjudicatory Hearings on the Adirondack Club and Resort
Adirondack Park Agency headquarters
Tuesday, April 25, 2011

Judge Daniel O’Connell presiding

Those in attendance: Elaine Yabroudy, Peter Littlefield, Don Dew Jr. , Fred Schuller, Dan McClelland, Roger Amell and Shawn Stuart of the town board, Kirk Gagnier, representing the town board and town and village planning board, John Caffry, attorney for Protect the Adirondacks, Jeff Anthony of the LA Group, Brian Houseal, executive director of Adirondack Council, ACR attorneys Tom Ulasewicz and Robert Sweeney, Kevin Franke, LA Group, Tom Lawson, (Mike Foxman unable to attend due to wife’s illness), , Paul VanCott, APA staff attorney, Mark Sengenburger, APA contact employee, Colleen Park, APA permitting officer for project, Dan Spada from APA scientific bureau, Shaun LaLonde, APA staff engineer, Village Mayor Mickey Desmarais and Village Consultant Bob Fuller, Jon Kopp for TL Chamber of Commerce, Dan Plumley and David Gibson of Adirondack Wild, Bayard Read and Edith Lamb of Birchery Camp, Lake Simond Road resident Dennis Zicah,

Judge: Explained to parties- three preliminary matters.
Caffrey letter asking clarification about judge’s ruling. Stipulations #10 and #12.
Second with respect to subpoena from Mr. Gibson about requesting witnesses.
With respect to transcripts, have received copies of transcript for first three days. Pre-file pages were supposed to be inserted. Did not occur. N
We need to gather those for insertion. Don’t know if can be incorporated in transcripts. So need hard copy version of pre-file documents and exhibits.

Paul Van Cott (APA attorney): agency staff sent e-mail to stenographer to try to work out issue. To figure out way to bring those pre-file documents into the transcript. Other alternative suggested is making a notation in transcript at certain points and having pre-file testimony established as an addendum. So commissioners could refer to in their reading of transcript.

Tom Ulasewicz: re transcript: hard copy or disk. When will be available to parties?

Paul VanCott: have received hard copy of transcript. Copy sent to judge. Also electronic copy (PDF version). Haven’t provide transcript to parties at this time. Need to deal with inclusion of pre-file testimony issue first.
If want own hard copy, work with stenographer. Electronic versions will eventually be sent to parties.

Judge: How should pre-file testimony be marked, as exhibits?

Meave Tooher (attorney for Adirondack Council): how electronic files sent?

VanCott: either e-mail or disks

Meave: we prefer disks, due to size.

Ulasewicz: applicant concurs with preference to disks

Judge: two additional exhibits: Watershed Stewardship reports from 2009 and 2010. Parties will get exhibit numbers during break today. We have a lot of testimony to get to this week. Are there any other preliminary matters?

First to testify: Mark Sengenburger, retired deputy director of regulatory programs at the APA and now a contract employee assigned to oversee Agency oversight of this project’s review.

Exhibits: Pre-file testimony with respect to issue #1, document on delegating powers within agency, document re: guidance of development on resource lands, and some supplemental pre-file testimony.

VanCott: refer to pre-file testimony re issue #1. Also resume submitted. Please take a look at.

Mark: reflects my background and experience.

VanCott: ask that all exhibits be introduced.
Look at remainder of testimony?

Mark: reflects my exhibits.

VanCott: please look at supplemental testimony. Accurately reflects what you submitted?

Mark: yes.

Judge: Objection to Mark’s pre-file testimony and supplemental?

None.

John Caffry (attorney for Protect the Adirondacks): About draft document on development of resource lands. This document said staff working draft not for public distribution. Like more information on it.Mr. Sengenburger, exhibit no. 3. Who wrote?

Mark: I did. Not officially approved by APA or executive director. My personal opinion. Carries no official status in the agency.

Caffry: no opposition, providing document just represents his personal opinion.

Judge: who has questions?

Hands up from preservationist group reps.

Caffry: have a lot of cross examination for Mr. Sengenburger. I’d like to reserve some for tomorrow because some witnesses can only be here today.

Judge: okay

Ulasewicz: what witnesses talking about?

VanCott: prior discussion was that Mr. Russell and Mr. Dodson follow Mr. Sengenburger. Mr. Caffry suggesting that because those two only available today, and because wants lot of time cross examining Mark, would like to move witnesses today.
Russell is an attorney who specializes in environmental zoning. Dodson is a landscape architect who testified at length in the first round a month ago about the impact of the ACR buildings on the landscape.

Ulasewicz: applicant’s rebuttal testimony? When will this occur?

VanCott: goal today to get as much of Mark’s testimony today and have the Council’s witnesses also appear. Mark could return tomorrow.

TU (Tom Ulasewicz): Caffry will not finish cross examination of Mark Sengenburger until after Russell and Dodson?

Caffry: I’m confused by Mr. Ulasewicz’s question?

TU: Judge, please list the order of appearance of witnesses, as you understand it to be?
Do not want to undertake cross examination of Mark, until hear from Dodson and Russell. My understanding that Mr. Dodson here for two days.

Caffry: If Mr. Ulasewicz feels Mark’s testimony should be finished first. That could work.

Off the record for ten minute break while attorneys confer about order of witnesses.

VanCott: agreed to permit Mr. Sengenburger’s testimony to be completed. Then Adirondack Council witnesses (Dodson, Russell). Hope those three will be finished today.

Ulasewicz: suggestion. If trying to gauge time. Then move Caffry closer to front than the end.

VanCott: agree with that.

TU for the applicant: Is there a precise standard for undue adverse findings?

Mark: Agency staff uses discretion. Staff assesses project impact by reviewing resource materials. Use 37 development considerations.

TU: Staff assesses resource information provided by applicant?

Mark: Yes and we also do outside inspections.

TU: True development considerations in APA Act apply equally to every land use area?

Mark: They do.

TU: When staff undertakes assessment, assessment applied to project site as a whole?

Mark: Yes.

TU: When staff required ACR for functional assessment of development considerations. Was done comprehensively over project site?

Mark: My recollection was that assessments done on entire site, not individual parcels.

TU: Agency board reasoning (for issue No. 1) was to ask if resource management areas will be reasonably protected?

Meave Tooher (attorney for Adirondack Council): Objection. Witness can’t answer for APA board.

TU: Like to know why, in Mark’s opinion, why was issue No. 1 only framed with respect to resource management lands?

Mark: staff’s recommendation to go to adjudicatory hearing related to a number of resource management issues, ie: high elevation development, wetland impact, etc.

TU: In final agency decision, they would determine adverse impacts and development considerations and benefits of projects.

Mark: Agency sent project to adjudicatory hearing on ten narrow issues, but their decision will be made on overall project.

TU: Would staff treatment of bald eagle nest in hamlet area be any different than on resource mgt. lands?

Mark: No.

TU: Once function of assessment successfully completed, then APA staff completed application?

Mark: Wouldn’t agree not completely satisfied, but did complete application.
Applicant could understand that project going to APA board with recommendation the board should send it to hearing.

TU: at any time during process which led to application completion, did staff change assessment methodology for evaluating development considerations?

Mark: Through the notice of incomplete application, etc., staff identified a number of deficiencies in the assessment and applicant responded to those. Nothing to read into completion other than that staff feels it was complete.

TU: An enormous amount of significance to complete application. That is, time clock for schedule, etc. Is it a major step in process?

Mark: Absolutely.

TU: When you talk about functional assessment, methodology never changed in length of process?

Mark: No. In questions that staff asked and completion notices, additional information was required?

TU: You got all the information you wanted?

Mark: Not all.

TU: Was not complete (the application)?

Mark: When staff makes decision about completion, it takes totality of info provided and assesses other info staff may have had in recommending going to formal hearing. Wildlife habitat was one of issues raised.

TU: During the two years that parties went through mediation, you attended, did staff ever request the applicant to reassess development considerations for wildlife habitat.

Mark. No. We weren’t in position to ask for that.

TU: Do you recall Adirondack Council ask for more considerations?

John Caffry: Objection! Relevancy?

TU: Because Council asking for new methodology and one of witnesses will address that.

TU: Do you recall the Adirondack Council asking for more considerations of development issues. Specifically, wildlife habitat impact?.

Mark: No.

TU: Is it your testimony that rare wildlife habitats not covered in application (page 8 in his pre-file testimony)?

Mark: Correct.

TU: Also in testimony with regard to resource management (RM) lands, were wetland impacts minimized and wetland mitigations considered acceptable by APA staff?

Mark: Correct.

TU: Did applicant follow guidelines of APA Act?

Mark: I don’t know.

TU: Agency must consider commercial, residential, etc. benefits as part of project?

VanCott: Objection.

Judge: Overruled.

Mark: Yes.

TU: How are those benefits weighed by agency?

Mark: Agency looks at economic benefits to nearby community.

TU: Includes all benefits?

Mark: Yes.

TU: Reopening ski area a recreational benefit?

Mark: Yes.

TU: Improvement of downtown area considered?

Mark: Yes, if occurred.

TU: Increased tourism?

Mark: Yes.

TU: Page 16 in your pre-file testimony, professional approval criteria for agency is not if project will have adverse impact, but if will have undue adverse impacts?

Mark: Yes.

TU: No further questions.

Kirk Gagnier (attorney for town board and town and village planning board): I’d like to pick up on commercial benefits that Mr. Ulasewicz touched on. In review of application, isn’t it true that applicant did not plan significant commercial interests at base site?

Mark: Yes.

Kirk: -And applicant proposed downtown revitalization?

Mark: Yes.

Kirk: When you were deputy director, page 3, 2200 permits issued. In resource mgt. areas, 180 permits?
Mark: Yes.

Kirk: Since your document was not accepted (by the agency board), was it something you followed with respect to issuance of resource management. permits?

Mark: No. I issued permits before document written.
In discussion among staff, felt need to clarify some of the terms. Document was shared with staff and also shared with couple of board members in attempt to decide if staff should help draft a formal policy on this matter. Determination by board it was not necessary and original act should be followed. Didn’t feel terms should be further defined.

Kirk: Staff satisfied with existing procedure?

Mark: Yes.

Meave Tooher (Adirondack Council attorney): Indicate agency board’s determination of resource management use. Is it your opinion that natural resource impact adequately addressed?

Mark: I believe it will be at conclusion of hearings.

Meave: Not true at this time?

Mark: Not prepared to say that. One purpose of hearing is to give opportunity for additional information to come forward.

Meave: When spoke earlier about assessing application presented by ACR, was it your understanding the hearing would flush out additional issues?

Mark: Yes, opportunity for that.

Meave: And about deficiencies, you felt they would be addressed?

Mark: Correct.

Meave: You testified earlier in response to TU’s question that staff determined application complete but not necessarily satisfied with all information?

Mark: Staff would have preferred habitat assessment would have be done over several seasons. When we recommend completion, often don’t have all the information we’d like. But use own experience and observations to supplement that information.

Meave: Do you remember that the Adirondack Council wanted more information on habitat impact?

Mark: Don’t recall.

Meave: Do remember generally?

TU: Objection. I want a citation of what referring to.

Meave: I’m trying to get his recollections.

Mark: No.

Meave: Do you remember Adirondack Council raising wildlife habitat questions during mediation?

Mark: Vaguely.

Meave: Applicant reasonably avoided wetland impact areas?
Critical wildlife habitat not considered.

Mark: No. Information was available from DEC.

Meave: Critical wildlife habitats not considered in application?

Mark: Application didn’t identify any critical wildlife habitats.

Meave: Today we are addressing Issue No. 1 (Is natural resource protection adequate?) Are visual and other issues adequate?

TU: Objection. We already covered visual last time. All been covered in that phase.

Van Cott: Object. Calling for a conclusion agency board will make.

Meave: Sengenburger offered as expert in resource management issues.

TU: Mark doesn’t give advice to APA board anymore.

Meave: but this information is for the board.
Judge: I’ll allow the question.

Mark: Don’t understand question. The agency staff felt there was sufficient information to warrant the completion. There will be additional testimony from Heidi Kretser and others later in the hearing.

Meave: Is there additional information that should be required?

Mark: Yes.

Meave: What presumption referring to?

Mark: Single family dwellings.

Meave: Regarding page 9 of your testimony. Talking about environmental assessment.. Indicate if assessment related to natural resource and site development which staff must consider. Staff must consider all of assessments?

Mark: Yes.

Meave: Can you identify?

Mark: I’m addressing all development considerations.

Meave: Concerning resource management areas. RM area are those lands where need to protect forests and open space is of paramount importance. Were these heavily weighted?

Mark: Yes.

Meave: Balanced against commercial benefits?

Mark: Yes, but based on a project specific basis.

Meave: Reading from APA Act. RM areas will allow for residential development on substantial lots, in small clusters, where sites carefully considered.

Mark: Those terms are not in the language of act.

Meave: Do you know what they mean?

Mark: Not really.

Meave:Tthese are considerations of the statute, in those terms? 805-42.

Meave: Have you considered those terminologies in other applications?

Mark: We generally relate them to the particular sites. Ie: steep slopes, wetlands where not suitable for development. Have had 50 acre sitse where couldn’t find room for septic treatment system. See these as outcome of careful assessment of resources. Land form defines where appropriate areas for development. Sometimes lot must be substantial in size. Sometimes areas suitable for more than one residence.

Meave: Don’t have specific definitions of terms?

Mark: Terms applied based on site.

Meave: Ecological considerations?

Mark: Sure. Once staff reviews projects, we don’t focus on terms “cluster” or “substantial acreage.” Focus on all 37 development considerations.

Meave: Is it fair to say, haven’t been previous considerations of those two terms?

Mark: We have considered but they are the not focus of staff.

Meave: trying to evaluate use of RM lands, these terms are part of statute, so Mr. Sengenburger’s testimony relevant.

Would it be appropriate there are standards involving those terms?

Mark: No.

Meave: The agency has never reviewed a project of this side?

Mark: Correct.

Meave: In your experience, would it be helpful to have that additional info?

Mark: Sure.

Meave: I direct your attention to supplemental testimony. Page 6, line 6, factual inquiry weighs impacts and benefits of project. How can impacts be mitigated?
Don’t see reasonable standard of mitigating impacts? Where?

Mark: don’t know what standard referring to. The agency has a great deal of flexibility in determining what undue adverse impacts are. Can look at all sorts of impacts on a variety of things and make determinations on all of those.

Meave: Are there factors that go into mitigation?

Mark: Depends on type of impacts. For example, if mitigating wetlands impact, can require additional wetlands to be created.

Meave: And what about impact on wildlife?

Mark: In park 2.5 million acres of public lands and other protected lands through conservation easements, etc. The agency can look at overall impact on wildlife. Great deal of latitude on what we choose to consider.

Meave: Would have to determine what the impacts actually were?

Mark: May not be able to mitigate all impacts.

TU: I object to the question since I don’t understand what is meant by fragmentation and how it applies to resource management lands.

Caffry: Just because Tom doesn’t understand the question, it’s not valid objection.

Meave: Do you understand term fragmentation?
Mark: No. Biologists and conservationists use that term.

Meave: How do they use that term?

TU: I object.

VanCott: I also object. We have witnesses who will be testifying to wildlife habitat.

Meave: In his experience with this application, has fragmentation of habitat been considered.

Mark: Yes. Dan Spada can address.

Meave: Opportunity to see fragmentation considered in other apps? Mitigations?

Mark: Habitat is one of 37 development considerations.

Meave: Is it necessary to evaluate if there is an impact?

Mark: Board will weigh that.

Meave: Can fragmentation impacts be mitigated?

Mark: Projects change as time goes on as part of discussions between staff and applicant. For eg: higher elevations development removed by applicant.
To extend impacts can be avoided and mitigated, occurs throughout the project, not just at the end.

Meave: Does staff make recommendations about mitigating impacts?

Mark: In some cases.

Meave: Part of role of staff is to have board consider w to ways to mitigate adverse impacts?

Mark: Yes.

Meave: Page three of the guidance, you encourage proper management of forests, etc? You indicate proper economic management…some definite procedure. Includes use of ski area?

Mark: Yes.

Meave: And logging uses too?

Mark: Sure.

Meave: Is forestry considered part of application?

Mark: No. It was originally.

Meave: Is there a forestry or recreational plan?

Mark: Not a forestry plan. There is a recreational plan.

Meave: Page 4 of guidance: aim is to preserve open spaces that are character of park. Lands and waters not built upon and where natural characteristic dominate…is that your definition as open space?

Mark: No. Open space is defined in APA guidelines.

Mark: Five pages relating to open space, in depth, that was included as part of Colleen Parker’s testimony.

Meave: What is your understanding of open space?

Mark: Areas that do not have buildings on.

Meave: Open space important to maintain biological integrity?

Mark: Agree with that.

Meave: Will habitat fragmentation occur?

Mark: Yes.

Meave: A valid resource management consideration in RM lands?

Mark: Yes.

Bayard Read: Asked hypothetical question, you said because such a condition would substantially effect the project, only board can decide. How did you determine financial feasibility?

Mark: From the beginning applicant has said the sale of the great camp lots will guide the renovation of the ski center. If board decides no great camp lots, would effect the financial viability of project. If agency issues a permit, applicant can challenge the permit and attempt to have condition modified. There will be substantial information available when we get to issues 5 and 6.

Bayard: Does APA have anyone on staff to evaluate whether conditions would determine financial viability?

Mark: Economic development person no longer employed by agency.

Adjourned for lunch.

The Free Press reporter had to head back to the office to put the paper together Tuesday afternoon.

The afternoon testimony was expected to include comments and cross-examination from the zoning expert and the landscape architect, Mssrs. Russell and Dodson.

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