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Adjudicatory Hearing Round III – Day Six

June 8, 2011 by · Leave a Comment 


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By Dan McClelland, Tupper Lake Free Press

Round III of Adjudicatory Hearings  Day Six  Wednesday, June 8, 2011

Present: Many of past players. New today: Brian Manne of NPR, David Norden, a real estate developer is back to rebuttal testify. Jack Delehanty here again today. Carol Richer, Don Dew Jr., Fred Schuller, Witnesses Terry Elsemore of Fractional Strategies Inc. and Jim Martin, Supervisor Roger Amell, Robert Fuller, Brian Houseal, Dr. Phyllis Thompson, Dennis Zicha, Jon Kopp,

Judge: Reconvened at 10a.m
Asked Mr. Caffry to identify papers related to motion.

John Caffry, attorney for Protect the Adirondacks: Have number of documents. Oral motion on April 29, and asked later to renew.

Tom Ulasewicz: attorney for applicant Preserve Associates. I’ll get a copy. Applicant be precluded from offering additional testimony on Issue No. 1, which involves testimony from Kevin Franke and Jeff Anthony.

Judge: All parties may be due by next Wednesday.

David Norden of Vermont- real estate developer

Questions from Tom Ulasewicz: Have visited ACR site?

Norden: Visited surrounding area. Drove up Lake Simond Road and road that goes beyond golf course to closed gate. Early May.

Tom: Ever involved in process before APA?

Norden: No.

Tom: Ever spoke with Steve Erman, APA economist?

Norden: No. Became involved several months ago.

Tom: Look at pre-file testimony page 15. Line 21 to 23. Cushman-Wakefield report residential market study: I reviewed the report done in 2006. Data outdated and inadequate. Did you write that?

Norden: Yes.

Tom: By letter through me applicant advised Mr. Caffry, sales projections have dramatically changed since 2005, given economic decline, thereby triggering 2010 documents. Is that true?

Norden: Mr. Caffry told me some of the figures had been updated.

Tom: Also know by this 2011 letter, that applicant advised Protect attorney that regarding C-W that no longer relevant

Tom: Page 43, you state: Facts of vacant lots pose a problem?

Norden: Vacant lots not desirable.
Tom: Say much of inventory of ACR would be vacant lots?
Would 30 of over 600 constitutes much?
Two thirds of 651 units are townhouses?

Norden: Aware.

Tom: APA staff issued notice of incomplete application, which contained dozens of questions? Did you read it?

Norden: Yes, I read.

Tom: APA staff issued second notice, which contained several pages of questions. Read?
Norden: Need to look at my files.

Tom U: You listed a number of documents you reviewed in pre-file testimony they were not on list.

Tom: APA staff issued a completed application in Dec. 2006. Did you review?

Norden: Yes.

Tom: Did you the importance of receipt of completed application?
Objection from Caffry attorney for Protect the Adirondacks.

Renew it.

Tom: With regard to fiscal and other issues, do you know importance of completed application.
Objection from Caffry.

Judge: Sustained.

Tom: On Feb. 2, 2005, APA issued conceptual review decision?
Objection: Relevancy from Caffry.

Tom: Genesis for what formal application filed. Been referred to in many documents? Do you know this component of the project?

Caffry: objection. Line of documents irrelevant. Nothing to do with this witness’ testimony which has to do with market.
Documents already in record. Irrelevant if this witness has seen this or not.

Paul VanCott: Agency provides non-binding conceptual review recommendations.

Judge: Mr. U, ask Mr. Norden if his list is complete.
Tom U: I’ll move on.

Tom U: Conducted some phone calls with ski area specialists. Who?

Norden: Spoke with some colleagues in ski association group. Douglas Kennedy out of Vermont.

Tom: Ski area specialists from Vermont, you referred to?

Norden: Not from New York. One works internationally. Other works nationally including many properties in New York.

Tom: Ski area marketing specialists?

Norden: Doug Kennedy.

Tom: Cite in your testify, ski facility size. Talk about Big Tupper as “unknown, which has previously failed.” Compare ski resort developments to ACR project and references to ACR are in testimony. Could you?

Norden: Made lot of references.

Tom: This is an Adirondack resort with a ski area?

Norden: Assumed ski center was a primary piece. Properties wouldn’t sell without ski area. So felt ski area a real focus.

Tom: Do you agree ACR is an Adirondack resort with ski area?

Norden: Feels like ski area is critical piece.

Tom: Talked about branding and that important marketing tool?

Norden: Branding is important!

Tom: How about Adirondacks as brand?

Norden: Adirondacks is a great brand.

Tom: Do you know there are 2.5 million acres of public forest preserve near resort? Did you know?

Norden: Didn’t know acreage.

Tom: Not bad neighborhood, eh?
Are you familiar with stringency of the regulations?

Judge: Ask witness if he knows about APA.

Tom: Speak about ski areas of Vermont, and including one in Japan. Know Vermont is the same size as Adirondack Park?

Norden: Didn’t know.

Tom: Is Adirondack branding unique?

Norden: Some may find it unique, even perhaps for wilderness aspect of it.

Tom: You state, with respect to market analysis, that the information is not up to date. Changed dramatically since 2006?

Norden: Yes that’s correct.

Tom: You’re saying market has changed?
Norden: Yes. A lot has happened to our economy.

Tom: Unlikely ACR will build west of Read Road within five years?

Caffry: Objection. Not in his testimony.

Judge: Rephrase it.

Tom: Realistically based on current phasing plan, depending upon what year the project gets underway, do you agree there will be no building west of Read Road for at least two to three years from now?

Norden: Like to look at map.

Caffry: Object…asking witness to guess what applicant may do.

Judge: Not sure what is before me.

Caffry: Fair for him to look at map and phasing plan.

Tom: Withdraw question.

Tom: Can you predict what market will be like five years from now?

Norden: No one can.

Tom: Can you predict the market from 2016 to project build out?

Norden: No one can.

Tom: Can you project quality and price point five years in advance of market?

Norden: No, uncommon. Think in planning process, normal to forecast what goals are. Normal to have projections five and six years out. They change as process proceeds…as ACR projections did.

Tom: You state: I also found discrepancy in documents. Jack Johnson documents suggest annual skier visits will approach 40,000. While analysis talks about 100,000 ski visits. Did you say that?

Norden: I said that.

Tom: Go to Jack Johnson document. Page 6. Based on carrying capacity of resort and assumption winter operation 90 days, 40,000 figure achieved. 40,000 figure based on 15% occupancy rate. Quite conservative?

Norden: The 15% occupancy rate was provided by an expert consultant. Don’t think conservative given type of improvements proposed. Nothing will be state of art or modern.
In my analysis I used the 100,000 skier visit figure. Used your larger number to do my analysis.

Tom: Changing your pre-file to say there isn’t a discrepancy?

Norden: No…I just said I used your figure.

Tom: In 2010 update, applicant changed occupancy rate to 37.5% from 15%. Did you factor that in?

Norden: I used your 100,000 skier visit figure.

Tom: Are there problems with going from 15% to 37.5%?

Caffry: Objection. No foundation. The 37.5% occupancy rate appears no where in record.

Tom: I’ll rephrase. In order to reach 100,000 figure, would 2010 figures have to have changed?

Norden: Don’t know how you got the 100,000 visits.

Tom: If 40,000 ski visitor figure based on 15% occupancy rate, in 2010 became 100,000 skier visits, would the occupancy rate have to go up?

Caffry: Objection. Asked and answered.

Tom: I have no recollection of answer

Caffry: Witness said doesn’t know where you got the 100,000 skier visit figure.

Judge: Don’t understand question.
Tom: Trying to undue so called “discrepancy” by witness.

Judge: Not what this witness considered. For his analysis he assumed 100,000 visits. Not sure why we are concerned about occupancy rate.

Carol Richer: Skier visits don’t reflect occupancy, some are day visitors.

Tom: Withdraw question..
Why is Mrs. Richer making statement? She is not testifying.

Judge: Taking Mrs. Richer’s statement as a question.

Tom: Let’s go to chart US vacation market trends. Looking at bar chart, agree 2004, 2005 and 2006 good years?

Norden: Great years.

Tom: What things looked at before 2001?

Norden: Don’t have specifics…have general sense.

Tom: Imagine we have that data, hypothetical…years 1996 to 2000, and then have five years beyond 2010. Conceivably may wind up with fairly straight line from 1996 to 2016. Conceivable, with exception of three good years?

Caffry: Objection. Witness says doesn’t have data. Testified he couldn’t predict market, Mr. U asking him to predict market.

Tom: Said hypothetically. These records put in by Protect. I ask for some latitude.

Judge: To Mr. Norden…are you familiar with info in chart…from 1996 to 2000?

Norden: My answer I had general sense…don’t have specifics.

Judge: Allow question up to current.

Tom: Possible may wind up with fairly straight line from 1996 to 2010?

Norden: Think need specifics of 1996 and beyond to draw that line. Don’t have that.

B.G. Read: These questions calling for speculation. Having trouble following. Shouldn’t Mr. U present his rebuttal witness?

Caffry: Appreciate Mr. Read’s help, but….

Tom: On page 32 of pre-file testimony Lines 17 to 19 you asked question: Has developer adjusted proposal to meet changes in market? Your answer: From my review of 2010 update, since 2006 projected reduction in costs, number of development units and increase in prices. Do you see that?

Norden: Yes.

Tom: Do know sizes of units?

Norden: Not clearly shown in the documents.

Tom: Do you know exterior materials that will be used? Interior finishes? Landscaping used? Materials used in buildings?

Norden: No to all, reviewed architectural guidelines.

Tom: How then can you project an opinion about prices?

Norden: Took figures in documents and compared them. It is simply a mathematical calculation.

Tom: This could change many times over next 15 years?

Norden: Probably will. In my testimony, I referenced some of those prices…but point is mute.

Tom: Know anything about demographics of project?

Norden: According to C-W study, targeting the baby boomer.

Tom: Isn’t the report obsolete?

Norden: I believe it’s obsolete.

Tom: Does wealthier clientele want quality?

Norden: Said all clientele wants quality.

Tom: Beneficial to attract wealthier buyers.

Norden: Yes, if you can.

Mayor Mickey Desmarais expected to attend afternoon session. Kirk Gagnier here.

John Caffry has questions for redirect.

Caffry: Few follow up questions. Mr. Jones asked questions about amenities of resort. About lake and you said it was unique.

Norden: Small parcel through renovated marina. There only a small access point through marina.

Caffry: Large or small amount of access?

Norden: Limited access. Property owners would have to have boats valeted to boat launch.

Caffry: Are there other resorts in northeast with some sort of lake access?

Norden: Yes, Lake Placid, Lake George and oceanfront properties.

Caffry: Jones asked you about lifts…fixed grip lifts versus heated lifts. Could you explain?

Norden: Most resorts used detachable lifts as primary lifts. Fixed gripped lifts are secondary. Benefit of detachable lift is they get you up mountain faster. Slower around bull wheel so easier to get on and off…The are more popular with skiers.
In Stowe, we have detachable lift next to fixed grip lift. No one riding fixed grip lift. Ten minute lift line for detachable lift. Both lifts access same terrain.

Caffry: In response to question from Mr. Plumley, in order achieve sales goals, need plan based on research not just hunches. Seen any such research done here?

Norden: I have not.

Caffry: Tom U. asked questions whether selling vacant lots versus already built homes. Anything in record that developer will build these homes?

Norden: Not clear who will build in record.

Caffry: Tom Ulasewicz asked questions about targeted approach to baby boomers. You mentioned baby boomers. C-W report said target market?

Norden: Yes.

Caffry: Any evidence this applicant has re-targeted to others?

Norden: No.

Caffry: Now important is it to target Generation X?

Norden: More than half buyers will be from that generation.

Caffry: Fall 2011 survey…your exhibit 211- Info from 20 different resorts. Applicant had access to your survey. Did they react to this and re-targeted their market analysis to include Generation X?

Norden: No.

Norden: Searched extensively for info on buildings and couldn’t find them.

Caffry: Would that make it more difficult to calculate sales prices?

Tom U: Objection.

Judge: Sustained.

Caffry: Knows about resorts?

Norden: In my opinion difficult to develop price points (for units) without knowing aspects of types of units…everything consumer will be buying…need to know in order to market.

Carol Richer, Tom Ulasewicz had questions for re-cross examination.

Carol Richer: Does quality have to be expensive?

Objection from Tom U: Nothing to do with redirect.

Norden: Quality is a widely used terms that means different things to different people. Quality often is expensive, especially when building high quality lodges.

Carol: If were to put different material, instead of granite countertops. .could still be quality but not luxury level?

Norden: Go from 4 inch piece of slab to 2 inch…someone will say that will cost less money.

Tom U: Exhibit 211, did you know that in response to document demand, applicant provided that document to Protect the Adirondacks?

Objection from Caffry. Relevance?

Judge: Sustain objection.

Others attending: Trustee Leon LeBlanc, Zach White, Kate Bencze, Ben Peets, Councilman Shawn Stuart.

Resumed after 15-minute break.

Next Witness: Scott Brandi, summer resident at Gull Pond, president of ski areas of New York. Sells ski area insurance. Big supporter of Big Tupper. Was not paid to testify as some of the expert witnesses were.

Move pre-file testimony into record.

Caffry: As to whether applicant has complied with discovery demands about background.

Tom U: Reluctant to have this witness be questioned about documents he is not aware of.

Caffry: I’ve made the same point make over and over…discovery demands. There were other documents that applicant promised to produce when became available but didn’t. Judge directed me to file more specific list of documents. Judge reminded applicant of responsibility to comply with discovery.
Mr. Brandi’s testimony refers to lot of studies, documents.
Now holding Tom U.’s hand what he is responsible to do…you have reminded him. Are there documents that support these figures…otherwise move to preclude witnesses testimony. Tom U. should have known better.

Tom U: To extent I understand and identify what Mr. Caffry asked for, have provided him with everything. Why didn’t he contact me along the way. Anything I have I would have given to him. To dream this up now when this gentleman is here on his own time, fail to understand the importance.

Caffry: Question Scott Brandi.
Do you have professional resume?

Scott: No, not at this stage in my career. Every two years my company does a survey of all ski areas…Ski Areas of New York Inc. That’s where statistics in my pre-file came from. This is a membership company and I am the president.

Caffry: Looking at page 5 of pre-file…discussion of capital investment. What is source of your information?

Scott: From National Ski Area Association…Study is done annually. I maintain a copy with me.

Caffry: Discussion of skier visits and slope side lodging…where did the numbers come from?

Scott: Economic studies from National Ski Areas Association.

Caffry: Discuss reason why Big Tupper failed in past. Source of info?

Scott: My opinion. Based on my years in industry and first-hand experience at Big Tupper.

Caffry: Housing demands from development?

Scott: In my opinion.

Caffry: On same page, lines 6 to 17, number of stats regarding skier visits, slope side housing, economic impact of skiing.

Scott: Documents from National Ski Areas Association.

Caffry: page 8 estimate of ski area employees. Based on any documents?

Scott: My company does survey every two years. I have access to them. Ski Areas of New York Inc. does the survey.

Scott: Using 100,000 skier visits threshold…number of ski areas run between 50,000 to 100,000. Comes from survey every other year.

Caffry: Potential skier spending?
Scott: From economic study 2009-10 our organization commissioned. Many of these documents are kept in house. I wrote pre-file. Questions were from Mr. Ulasewicz. Did Mr. U ask you for source of data or documents?

Scott: I can’t recall specifically.

Caffry: Ever discuss discovery requirements?

Scott: I don’t recall.

Caffry: Reviewed pre-filed testimony versus my discovery demands…
Oops more questions.

Caffry: When did you get involved in any shape or form about ACR?
Scott: My association is as resource to industry.

Caffry: When did you first speak to Michael Foxman?

Scott: Several years ago… In e-mails I gave him advice on insurance and contacts in the industry. I may have received his replies.

Caffry: Any contact with LA Group?

Scott: No.
Caffry: We’ve made discovery demands…received back one e-mail. Heard him say multiple e-mails. Mr. Brandi’s contains numerous facts and figures…skier data, our discovery demands included that…his testimony touches on job creation. Our demands covered that…all documents regarding estimated number of skier visits…all data, articles, correspondence that has or will be relied on by expert witness.
Mr. Brandi said there have been numerous documents he relied on. We received none of this information…heard Mr. U didn’t even ask him for these documents. Judge, you have seen many of these documents…went through before in April…you gave them a chance to provide documents. Want a chance to use some of these documents. This is supposed to be end of testimony. If you allow us to adjourn to give Mr. Brandi time to produce them, we’ll be back in July. Only one appropriate remedy to preclude this witnesses testimony. Cited precedent…judge said if someone didn’t respond…move that this witness’ testimony be removed in its entirety…in response to applicant not fulfilling discovery demands.

Tom U: Anything relevant to the testimony and everything we’ve shared, not second guessing questions that have been asked in discovery demands. Have to check all his demands and compare…I have none of the documents that have been discussed by Mr. Brandi this morning. Reports have not been used. Can’t respond to litany of documents.

Brian Houseal: Adirondack Council would very much like to see an end to the process.
Jon Kopp, Dan McClelland, Don Dew agreed with Mr. Houseal.

Jack Delehanty: I’ve been a member of the Bar association since 1977, in my practice of 31 years, that CPL that certain materials should be turned over at specific time. Free exchange of information facilitates your job and improves the record. Rules that require turn over of material, discovery demands should be complied with. Don’t know if will rule on Mr. Caffry motion, my opinion, if materials haven’t been provided, preclusion is appropriate sanction. It is the basis of all legal proceedings for development of complete record…so public has information it needs to have. I understand some people believe this should process should be concluded. This witness has not shared what he should have shared with Mr. U., and Mr. U has not shared what should have shared.

Paul VanCott: From outset APA staff made clear our role for board is to assist in insuring that full record is brought to the board. Cannot sit here today and say that board how much value would give to Mr. Brandi’s testimony. They should see that testimony and should see documents Mr. Brandi has alluded to. Should have been provided per Mr. Caffry’s document request. Very frustrating. Sure you’ve shared the frustration, Your Honor. Cannot support Mr. Caffry’s motion to preclude. The conduct is inexcusable and whatever means in terms of the lay of this proceeding all on applicant’s shoulders. Should have been provided.

Kirk Gagnier: With regard to motion, second Mr. VanCott. This group of issues particularly relevant to planning board. Mr. Caffry’s statements and Mr. U’s responses are part of the record. Hearings shouldn’t be permitted to extend. This is last witness. Take a position that important for what this witness has to stay. Rather than preclusion, should be permitted to testify. As to what Mr. Delehanty said, with regard to CPLR…

Don Dew Jr. One comment. In response to Mr. Delehanty, this is not a trial. It’s a hearing so I believe this motion should be denied. It should be part of the record.

Dan Plumley, Adirondack Wild: My organization supports the Caffry motion. If look over testimony. It’s a mixture of reported facts and personal opinion. May or may not be true. Testimony comes with no information on what the organization is, no resume on Mr. Brandi. Gives significant data based on surveys not included in pre-file, giving no basis in fact. Should be excluded until documents provided. The documents should be provided in expedited fashion.

Caffry: Mr. U said while he didn’t think these documents should have been provided. Fact Mr. U did not undertake duty to ask witness for documents. Slap in face to you, your honor, to the APA and to all parties, that he didn’t do what any first year graduate of law school knew he must do….Mr. U ignored his obligation. Didn’t ask witness for the documents.. He’s done this multiple times through proceedings. How long will applicant get away with this?

Only way process will be accepted is to preclude this witness. Only when sanctions are applied, then things are done properly. Without sanctions, people will continue to ignore discovery…it’s acase for respect of process.

Judge: Need a few minutes…go off record.

Judge after ten minute study: Big opinion: “One more thing I have to check.”
Judge: I’ve given lots of instruction of disclosure. More instruction on April 29, and reminded parties. No further adjournments due to disclosure. Partially grant and partially deny some of Mr. Caffry’s motion. I will strike parts of Mr. Brandi’s answers to certain questions. Parties will have opportunity to respond.

Caffry: Repeat stricken sections?

Judge: Page 5 question 10…page 7 question 12, both question and answer stricken.. Allow 13 to remain, however, striking part of the answer. Question 14 a and b, question and answer stricken. Pre-filed testimony those questions will be crossed out, not deleted. Decision to delete is up to commissioners. I’m not final decision-maker. That’s how Mr. Brandi’s pre-filed testimony will be presented.

After lunch

Caffry: Note for the record, exception to that portion of your ruling leaving redacted portions still in the record.

Judge: So noted.

Caffry: When were you get involved in giving advice to project sponsor?

Scott: Can tell you how and why, but not when. Pretty much over insurance needs.

Caffry: Have private insurance brokerage?

Scott: Yes…advising him about general liability operating exposures…vacant land exposures…placing properties in proper insurance venues.

Caffry: You provide insurance to Big Tupper in past? Providing insurance to ARISE?

Scott: No.

Caffry: Future insurance policies to investors?
Trying to root out conflicts of interest.

Tom U: object. Questioning credibility of witness.

Caffry: Discussions about your brokerage providing insurance to project?

Scott: No.

Caffry: Discussions with LA Group?

Judge: Asked and answered.

Scott: No. Just a chit chat today.

Caffry: When you testified, doing on your own, not on behalf of your employer?

Scott: I’m doing both, if possible. Trying to draw a line between the two.

Caffry: On pre-file page 6, line 10, discussed making snow on primary trails quickly. Know water source?

Scott: Cranberry Pond…know it’s controlled by beaver dam.

Caffry: No further questions.

Tom U: No questions on redress.

Judge: Mr. Caffry…rebuttal.

Caffry: Need few minutes to discuss with my witness.

Caffry: No rebuttal testimony.

Judge: Conclude discussion of issues 5 and 6

Reconvene on June 21 at 10a.m. Scope of work to complete testimony relating to Issue No. 1 on use of resource management lands and the project’s environmental impact on the site.

Adjourned about 2p.m.

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