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Day One- Start of adjudicatory hearings at Tupper Lake train station.

March 22, 2011 by · Leave a Comment 

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By Dan McClelland, Tupper Lake Free Press

About 70 people present: about 40 APA officials and party members, the balance interested citizens.
Judge O’Connell: opening statements can be filed in writing.
For today I’d like to get through appearances.  Announce name and give testimony.
Two stipulations to discuss re  two issues. Each party has right to cross exam a witness.

APA telecast is being undertaken.
Bob Kreider: not live today, because no internet at train station.  Posted on APA web site within week.
At APA headquarters, will be broadcast live.
Tom Ulasewicz (attorney for applicant)- publicly available?
Paul Van Cott (attorney for APA): yes.
Judge: important to use time efficiently.
Paul Maroun: comments the other night at the legislative hearing on the record?
Judge: yes, informal comments, unsworn  but on record.
Paul Maroun: opportunity for general motion about anyone who can’t attend.
Paul VanCott: APA feels people should be able to participate to their ability….blanket stipulation so all parties can participate.
Jack Delehanty: would written statements be available on line?
Judge: will distribute if they are sent to me.
Judge: we have many parties, will take some time.  I ask for your patience. We’ll get through it.

Hearing goes on the record:

Application No. 2005-100.

Procedures outlined in APA regulations.

Tom Ulasewicz: lead counsel for applicant.  Introduced LA Group, represented by Kevin Franke, Investor Tom Lawson. Mike Foxman unable to attend. His wife is undergoing surgery.

For APA staff- Paul VanCott, associate attorney.  Joined by Sr. Attorney Mitch Goroski. Colleen Parker, permit review person; Keith McKeever, PI officer, Bob Kreider, IT person.

Mickey Desmarais, Kirk Gagnier, counsel for planning board and town planning board.  Planning Board Chairman Jim Larkin, Jon Kopp representing chamber, Paul Maroun; Marc Gerstman and attorney for Adirondack Council, executive director Brian Houseseal; Curtis Read, B.G. Read, Protect Adirondacks, John Caffry, attorney; Lorena Duval, co-chair; Adirondack Wild, Dave Gibson and Dan Plumley; adjacent property owners: Peter Littlefield, Elaine Yabroudy, Don Dew Jr., Jack Delehanty and Charlcie Delehanty; Carol Richer; Lyndon Jones representing Kevin Jones.

Kirk Gagnier: two additional town reps: Shawn Stuart and John Storrin, town planner.

Parties Forfeiture: discussed during conference call several weeks ago.

Judge: at time not aware of authority for that.  Reviewed regulations since then.  Does anyone intend to make this motion where by not showing up would forfeit that person’s right as party.

Ulasewicz: premature to make that motion.  No idea who will show up and who won’t.  What disturbs applicant most,  with about 35 parties, there has been little movement to consolidate.  Only four or five parties indicate they intend to put witnesses on stand.  Don’t know why people who don’t participate should be permitted to maintain party status.

Paul VanCott, APA attorney: APA hearing staff role is to be advocate for full and complete record.  In furtherance of that role, critical that all parties have opportunity to participate to extent they can.

Staff makes motion: that judge exercise his discretion to allow parties to participate as they can, based on their individual  circumstances, including opening statements, submitting briefs, etc.

Jack Delehanty: join APA attorney in that opinion.

All regulations  developed to complete full and complete record.  There may be times many parties can’t be with us.  Many have taken opportunity to participate, such as filing  written statements.

Think you should rule on this to protect the parties and insure that full and complete record will be developed. You should be gate-keeper, judge.

John Caffry (attorney for Protect the Adirondacks): It is my client’s plan that I will not be in attendance during all parts…only relevant parts.  Lorraine Duval will be here some of the time.  May not have someone here every day.  Mr. Ulasewicz would like to limit participants.  As I interpret regulations, most parties appeared at pre-hearing conference, addresses the appearance stipulation.  Many will try to make many sessions.

Support APA staff motion.  Just because someone misses one or more meetings, an appearance complies with APA regulations.

BG Read: Birchery Camp owner.  Sent e-mail about need for parties to attend every session.  Most of adjoining property owners are seasonal and live elsewhere.  They can’t make every meeting.  Should be permitted to participate.  Second APA staff view.

Tom Ulasewicz: rather surprised you are  entertaining a motion.  If any party fails to appear, waives right to participate, except for good cause shown and discretion of hearing officer.  Everyone is a party.  No motion to remove parties as such.  No valid reason yet.  You are putting cart before horse.  Let’s wait…table.  Wait to see if makes motion to remove party.

Kirk Gagnier: town of TL and planning board: concurs with applicant.  It’s premature to make motion.  Seems regulations better suited to allow motion at appropriate time.  Motion now premature.  Judge should rule on case-by-case basis.

About 20 local citizens attended, including Shawn Stuart, John Storrin, Mike Dechene, Dave Reed, Zach White, David Tomberlin, Rickey Dattola, Cary Snye and others.

Back on record

Judge: recognize objective of rules is to encourage participation. APA motion denied without prejudice.  No motion for excluding anyone yet.  Any party subject to motion will have opportunity to protest.

The term “appearance” does not require 100% attendance.


Letter: APA staff composed order for making opening statements.

Tom Ulasewicz (applicant’s attorney): on behalf as ACR. Directed to APA commissioners.  APA project site described as follows: 6,200 acres.  Site includes ski lodge.  Existing ski school building. Site has existing ski patrol building.  Two existing store garages.  Existing warming building and ranger cabin.  Site has 30 trails with over 1,100 foot vertical drop.  Three chairlifts, one t-bar, one rope town.  Site includes McDonald’s Marina.  Existing marina has nine existing buildings.  Existing docks and existing commercial fuel storage facility with equipment.  ACR site has 20.1 miles of existing  roads on it.  Total cleared area of 146 acres.  Numerous log-landing areas along roads.  Lumbering and logging have  been use of property since 1920, continues today.  Logging, skidder trails meander for miles.  Three existing hunting camp sites. Site has been subject to dozen APA permits over past 15 to 20 years.

Existing development 350 acres plus 5,000 acres exposed to logging activity.  Project will disturb 522 acres, including 350 acres listed above, leaving majority of acreage undeveloped.

Agency Members; critics of ACR proposal especially vocal o proposed uses of resource management land and biological life there. They have called for alternatives, like conservation development.  Term not defined in APA regulations.

All agencies must define terms.  Applicants will take opportunity to make a number of observations.  Unlikely any observations will be raised by adversarial parties.  APA Act describes character of resource management (RM) land, lands where protect, manage and enhance for outdoor recreation.

Most of lands will remain as open space and recreation.  Single-family dwellings second compatibility on RM lands.  Applicants asking to allow this permitted use.  Under APA law, ski center secondary compatible uses for RM lands. Under APA Act, sewer treatment plants are secondary compatible uses on RM.  ACR proposing this allowable use.  Plant will provide tertiary treatment, which exceeds treatment of village plants in all respects.

Some parties asked APA to issue permit based on alternatives.  Applicant submits that any such undertaking by the agency outside of its authority.  Applicant alone can define its project, not APA or any interested groups of individuals. APA members limited to decision-making as proposed: with or without conditions, or deny.

What is proposed by applicant is before you.  Project can’t succeed financially if required to be redesigned and built out from ski center.  Project can’t succeed if has to consider adjacent property in which it doesn’t own, like Read Road.  APA can’t make new regulations through review of an application.

This project meets all criteria for permit approval.  These adjudicatory proceedings are not required, mandating or not very much use.  Project has received conceptual approval in 2005.

Significant mitigation incorporated into proposal during mediation from 2007 to 2009,  including elimination of high elevation developments.  Elimination of 19 of 36 ski in-ski out in West Slopeside.  Eight residential units in West face Expansion.  Reduction of 31 small great camps.  Reconfiguration of 8 great camp lots.  All great camp lots limited to 3 acre building envelopes.

Elimination of Orvis shooting school out of concern for noise.  Elimination of Lake Simond proposed wastewater treatment plant.  Elimination too of Lake Simond canoe launch.  Project as proposed will not use 30 of its 111 mathematical building rights on RM land.  Project will not use 302 of its 946 allowable lots on heavier intensity lands.

Due to financial set backs, Big Tupper sold by the Town of Altamont in 1987.  Purchaser, Roger Jakubowski, eventually ran into financial difficulties.  Bank foreclosure resulted in the sale to two local businessmen who did substantial upgrades.  Despite improvements  to the ski area, troubled finances caused the new owners to  close it in 1999.

Now investors come forward with sound financial plan to reopen ski area: the ACR  Any significant departure from this plan, will mark a return to financial failures of 1980s and 1990s.  Attorney quoted APA ACT: stipulated that park residents should see economic development and growth as well, not just preservation of land.  This plan will compliment vision of APA master plan, and will all people of this state.

The legislature said it is purpose of act to preserve land in park, and recognizes matters of local concern, as well as those of state and regional concern.  Goal to achieve sound local planning.

In past couple of years, large timber companies have decided to sell holdings: Champion, Whitney, IP and Finch Pruyn…and now Oval Wood Dish.  All holdings classified RM. No one has expressed interest in buying Oval Wood Dish land.  Growing school of thought, that environmental community wants protection for these large tracts.

That’s what occurring on ACR.  It is called cheating.  Opponents are saying let’s see what can get away with.  This phenomenon needs to be addressed.  Change rule to legal process; don’t cheat and  apply retroactively to this project.

APA staff opening statement (delivered by Attorney VanCott):

APA board must render decision within 60 days, unless ordered by judge or with permission of applicant.

Staff not party to hearing. Neutral.  In preparing for hearing, offered summary of application and draft permit conditions.  Neither should be construed as support for application by hearing staff.  Intended to assist parties in focusing on issues identified.

Potential draft permit conditions offered solely for the purpose of encouraging thoughtful testimony.

Staff will follow closely testimony offered by applicant and parties.

APA staff doesn’t have a recommendation on whether application should be approved or not.  After hearing staff may or may not make recommendation.

Statement provides summary on issue by issue basis.

Tom Ulasewicz to Judge: you may have copy of my statement as well.  Thought you wanted one or the other.

DEC staff: no statement

Mayor Mickey Desmarais: representing residents. Village board has supported ACR.  Numerous positive and pro-active actions to help project have been undertaken.  These days environmentalism is huge issue.  Project will prove to rest of world we can be good stewards, and won’t damage the park.

We will provide the necessary services.  Unlike developer who is willing to take all risk, village must be careful.  Nature has rights and so do we.  We must protect residents from any negative impacts.

Important for village to work with developers, as partners.  Partnership will help make ACR a success.  If ACR does well we should all do well.

Are some things we have said no to: eminent domain proceedings on private road; said no to municipal bonds.  Very few no’s, many yes responses.

Here are some of the things village has done: Board annexed school campus in anticipation of proposed annexation.

Given engineering services to help with water, sewer and electric.

Did electrical work to accommodate ACR

Assured developer of available electricity.

Work done on existing plants to accommodate ACR.

Countless hours reviewing many design plans, particularly with Delaware Engineering Group.

Submitted several items for stimulus consideration which would benefit town residents.

Work closely with DOT to expedite second phase of reconstruction.

Taken two visits to communities with similar resorts in NY state and Vermont.

Supported ARISE initiative to help Big Tupper reopen.

After 7 years looking forward to working with all parties involved.  Seeking agency approval on project that comes to us  with promise. We expect agency approval based on  honesty, truth and sound facts.

Kirk Gagnier: attorney for town and town planning board: Town and joint planning board respectfully request APA draw a permit for ACR.  Purpose of this hearing is to draw a record and give commissioner s a method to assess.

Town and planning board takes position that this project is in accord with APA Act and should be approved.

Record developed will give commissioners information to approve project.

Planning Board has given conditional approval.

Economic decline in Tupper Lake is pronounced….closed businesses, lost industries, etc.  Impact on this trend on population and school enrollment is easily seen…shouldn’t be further tolerated.

Effect can be seen on faces of the school children.

ACR will give this community a stepping stone to a brighter future.  Offers Tupper Lake a once in a generation, if not once in an ever opportunity. Tupper Lake has hung on, despite challenges.

This project has boosted our spirit…this project will invigorate this community and bring back people.

Project will reverse ongoing trend of decline.  State and federal agencies provide most of employment.  This project will meet guidelines and compatible uses under the APA Act.

The development is in an area best suited for this type of project.  Ski Center there.  Forethought that planning board  in 1980s undertook major zoning changes to accommodate a project like this.

Evidence will show this development will meet our needs and help this community revive.

Town and Planning boards request that project be approved.

Jon Kopp (Tupper Lake Chamber of Commerce): When I came to Tupper Lake in 1966 as a young forester working for Draper Corp.  Mill gone now.  Other mills gone too.  Over past 40 years, some major events have impacted future of Tupper Lake.  Changes in wood industry.  Much lost to Asian countries, so no option for secondary industries.  Lost railroad.  Always been important for Tupper lake.  Transportation key to any community’s success.  Lost that ability because of decline of wood industry.

Adirondack Northway changed the way people come to Tupper Lake. Used to come through Warrensburg.  Wherever major roads, that’s where development occurs.  Tupper Lake, like many communities, is out of main line of traffic flow today.

Retailing has declined as shopper go to the distant malls.  When I came here many retail stores…very self sufficient.  Now those jobs gone and we must rely on Sunmount DDSO.  About 1000 jobs at the state facility and the rest of community operates off those jobs.

What has happened to Tupper Lake has happened to many towns.  We will never be able to make ski area viable.  Motel operators suffer because can’t maintain the year round 60% occupancy you need to survive.  When I came 60 lodging places…now 20.

Have wonderful plan with ACR.  I was blown away when first learned of it.  To move development rights to ski area is a wonderful idea.  Homeowners will keep ski area open and keep skiing here.  Skiing very important here…watched the kids at Big Tupper.

We support this so much…we love the Adirondacks…love the ski area…this project will provide a hope for our future.

Franklin County Legislator Paul Maroun: My brethren have  spoken very eloquently.  No need to repeat their points.  Touch on very few points. Glad APA staff here and preservationist groups

Going to talk about bonds.  Want staff to research.  Bonds issued by IDA and subsidiaries no way an obligation on taxpayers.  Not obligation of taxpayers…we routinely issue them   Only relationship is between bank and the buyer.  Want APA staff to research so commissioners understand.

PILOTS- no agreement at this point of any official relationship through IDA.  PILOTS very hard to explain.  Hard for people without legal background to understand.  Taxpayer will pay same rate per $1,000 whether in or out of area.  Part of goes to pay bonds.. Have been used for years all over county.  If we have a PILOT income to local governments will be greatly increased.  PILOTs are not  a burden on taxpayer.

No doubt this project will increase our tax base.  No doubt residents and others will see more tax revenues flowing into community.

Sales  tax: as growth happens from such a project, more people will visit here and spend money and will offset property taxes.  Will be able to avoid tax increases like the 20% county one in 2011.

Two final points: my understanding and hope APA counsel confers, no subdivision permitted on proposed great camps.  Can be no further subdivision.

Natural phasing will be over many years.  I’m told facilities like private ski center cannot operate without some sort of resort around it.  Ski area at Titus has developed around their facility.  Without ACR, Big Tupper proponents will be in same position we’ve been in the past.

We need this project.  Some things need to be tweaked but they can be.  Hopeful staff will look at these issues to bring clearance to them.

Adirondack Council Attorney Meave Tooher: written statement with clarification: page 2: 719 units and 332 buildings.  Written statement submitted.

Supports economic aspects of project but just wants to make sure environmental issues taken care of.

John Caffry  (Protect the Adirondacks): Client believes this project the largest threat to ecological climate of the park than anything ever proposed.

Doesn’t comply with APA Act. Not financially viable…many negative fiscal impacts.  It presents a negative precedent for future of Adirondack Park.  Application must be denied. Glad hearings have started so we can tell our side of the story.

Sooner this  application denied and a responsible operator comes forward, sooner Tupper Lake can start on economic recovery.

Protect represents 5,000 members, many live in within park and two dozen  live in Tupper Lake.  We believe evidence will show project does not meet current standards of APA Act.

Mr. Ulasewicz would have commissioners believe that opponents are trying to rewrite the act.  Our position is that the applicant is trying to rewrite the law to favor their interpretation of law.

On issues that will come before members, Issue No. 1, if great camp lots approved, character of RM will not be protected from land fragmentation.  Lost of timberlands and loss of hunting camps will occur.  Great camps lots must be eliminated.  Large lots won’t prevent  impacts, just spread them further.

Mr. Ulasewicz states 5,600 acres will be undeveloped.  Like oil companies who wish to drill in Alaska.  The say that   land will only  be disturbed will be at drill site.  Whenever something is built in undeveloped areas, every building has impact on entire area.

While some high elevations units removed, some remain.  Erosion damage.

Applicants failed to address visual impacts.

Findings outdated, since much has changed.

Fiscal risks to community are significant if developer builds infrastructure and lots don’t sell, town will be left holding the bag.

Current project does not guarantee Big Tupper will continue.  Ski area reconstruction  dependent on real estate sales.  Sale projections based on pipe dreams.

Too much competition for limited amount of buyers.  Project not viable in the long term.

Boat launch service will violate act because of business on forest preserve prohibitions.

Issue 12- illegal transfer of density across Read Road violates act.

Great Camp lots limited to 3 acres.  Originally only two-acre envelopers.  Increase number.  So there was not meaningful mitigation.  Application must be denied.  Applicant can’t meet burden of proof.

Praise ARISE in reopening Big Tupper.  Hickory Mt. renovate is example of successful effort.

Agree with Council that there may be a permittable plan, but disagree that permit could be issued with conditions.  Project as proposed way too far from complying with the law.

This project is not approvable under  the law.

Adjourned for lunch: 12:15p.m.

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