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Adjudicatory Hearing Round II – Day Two

April 27, 2011 by · Leave a Comment 

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By Dan McClelland, Tupper Lake Free Press

Round II Second Day of Adjudicatory Hearing Testimony
APA headquarters in Ray Brook
Wednesday, April 27, 2011

10a.m. start

Some of those present: Mark Sengenberger, contractual employee with APA and former deputy director of regulatory programs, Kirk Gagnier, attorney for town board and town and village planning board, David Gibson and Dan Plumley of Adirondack Wild, John Caffry, attorney for Protect the Adirondacks, Bayard Read and Edith. Lamb of the Birchery Camp, Jon Kopp representing TL chamber of commerce, Kevin Franke and Jeff Anthony of the LA Group, Tom Ulasewicz, attorney for the Adirondack Club and Resort, Don Dew Jr., Fred Schuller, APA staff Dan Spada, Attorney Paul VanCott, Engineer Shawn LaLonde, Bob Fuller, village consultant, DEC Scott Abraham, Meave Tooher, attorney for Adirondack Council, Elaine Yabroudy and Peter Littlefield, Dennis Zicha, Bob Sweeney, co-council for ACR, Tom Lawson, Town Supervisor Roger Amell.

Don Dew: opportunity to cross exam Mark Sengenburger?
Judge: An issue we’ll review

Michael W. Klemens, PhD.- a witness by Adirondack Wild of Niskayuna, NY first on the witness stand.

Dan Plumley, co-owner of Adirondack Wild: any exhibits with pre-file?

Klemens: my CD. That’s all.

Dan Plumley: Your purpose today to give testimony about issue No. 1 (resource mgt) and No. 8 (wetland impact)?

Klemens: I have an addition to my testimony. Two days before hearing, did rapid assessment of amphibians on ACR site, both in day and night.

Plumley: Why necessary?

Klemens: No amphibian study included in application. They have important functions in food change. There are complex habitat requirements which link wetlands with upland habitats.

Move that Mr. Klemens’ pre-file testimony and additional on amphibian observation included in record.

Off the record for a moment.

TU: Want to evaluate his document to its credibility, and haven’t had opportunity. This is late, with regard to all procedures. Too late. Don’t mind cross examining him and putting this in record. But should be required to return if necessary, or not put in the record. Adding it at this point is unfair.

Bayard Read: Your honor, had the biological work been done by consultants at appropriate time, any work by Dr. Klemens would not be surprise to them.

John Caffry: Other parties, including applicant, have provided supplements to pre-file testimony. Not our fault applicant has planners but doesn’t have biologist here.

Judge: It is a bit of a surprise. When would he be available to return?

Dan Plumley: Retained in January but no time to inspect during spring breeding time, like this week.

Judge: When will you be available to return, Dr. Klemens?

Dr. Klemens: (mumbled answer) When additional hearings? Available in late May, from 24 to 26.

Judge: This is how we will proceed.

TU: In lieu of discovery, I’d like to be provided with Dr. Klemens’ field notes and other rough documents, as soon as possible.

Dr. Klemens’ resume incorporated into record. No opposition.

Judge: Supplemental testimony dated April 25. Reserving on accepting. Testimony today limited to pre-filed testimony. Determine later if need to call Dr. Klemens back for cross-examination. Take Ulasewicz discovery request under advisement. Address later.

Dr. K: I’m a conservation biologist. My philosophy is that good scientific information can create good project and protect natural resources. Environmentalists should be people who don’t say no but who say how. This is my approach. I’m chairman of my own planning board. I understand need to balance environmental information with people’s use of their property.
In this application, lot of information needed to lay out the design.

Dan Plumley: No further questions.

Who has questions?

Jon Kopp, Bayard Read, Kirk Gagnier, John Caffry , Tom Ulasewicz (TU)

TU: Separate and apart from Monday, ever been to ACR site?

Dr. K: No. I read application.

TU: Could you identify sections of application you thoroughly reviewed?

Dr. K: Sections that detailed biology and biological character of site.

TU: There is functional assessment study in application. Have you read?

Dr. K: Yes, the section that covered four categories of wetlands.

TU: There was submission by applicant in 2006. Did you review?

Dr. K: Show me the document please..

Paul VanCott (attorney for APA): We have it.

TU: In applicant’s response to second notice of incomplete notice.
Exhibit 35 Page 11. Pages 75 to 90.

Dr. Klemens: I do not recall. Lot of stuff on disk. Some looks familiar. I saw things like this. Can’t for certainty say I have seen it.

TU: Provide you with copy of Feb. 2006 response to second notice of incomplete. Functional assessment study, beginning at page 154. Exhibit No. 22

Dr. K: I have seen this. I do recognize portions of this.

TU: Please be specific?

Dr. K. Certainly recognize the wildlife section (pages 83 to 84). Rest of it looks familiar. I may have seen in other parts of application. Possibly forest compilation.

TU: Mentioned functional assessment study before. Have you read?

Dr. K: Believe so…recognize discussion of Bicknell’s Thrush (high elevation bird).

TU: Pages 15-21 Exhibit 39. Do you recognize?

Dr. K: Believe so…lot of same repeating stuff. Not sure. Lot of discussion there about common species with no impact.

TU: Turn to your pre-file testimony and going to page 5. “Language in act was that legislature decided to steer development away from resource management lands.

Dr. K: Forestry and other uses should be favored over development. Higher uses. Ultimate goal to maintain biological integrity. That’s my interpretation of zonal planning.

Dr. K: Two separate zones. Different functions that were created for a reason.

TU: There are four land use areas, would that surprise you?

Dr. K: No.

TU: Are you familiar with compatible use list in APA Act?

Dr. K: No. Some familiar with (forestry, agriculture, hunting) but not all.

TU: Which components proposed by ACR not on compatible list of uses?

Gibson: What is relevancy regarding these two issues?

Caffry: Easier and faster. He shouldn’t be expected to quote statute.

TU: Can you identify which components of ACR not listed on compatible use list of resource management lands?.

Dr. K: Talking about lack of information, and the impacts of that.

TU: Please answer.

Dr. K:I just did!

TU: You did not!

Dr. K: respectfully sir, I did.

TU: Are you aware of the components being used are on primary and secondary uses of APA Act.

Dr. K: Believe they are. I’m talking about impacts of all.

TU: You didn’t look at particular types of uses.

Dr. K: Looked at overall impact (I call great camps sprawl on steroids). Looked at houses and impact on site. Applicant hasn’t provided enough information to provide scientific evaluation of impact of houses on site.
It’s my professional opinion. Based on experience of looking at projects for 30 years.

TU: In your testimony you say state legislature tried to steer development away from RM lands by making RM secondary to forestry, etc..

Dr. K: RM lands need to be managed for recreation, forestry, etc. By making use of RM lands, using priorities- forestry, hunting, etc., development is not priority for those lands.

TU: What do you mean “forest-recreational” term.?

Dr. K: Use of forest for recreation, including hunting, skiing, etc. Recreation in forest- hunting, fishing, etc. Cross country skiing, snowshoeing, trapping- all things dependent upon forests.

TU: Are all of those a priority for resource management (RM) lands?

Dr. K: More compatible with RM lands than development.

TU: From western section of property, development jammed onto every portion of upland portions land. Show me areas on plan where you were referring to?

Looking at Site Plan of development.

Bayard Read: Could we have slide we’re looking at identified in record?

Dr. K: Can’t read development names, but have wetlands all around and development on slopes all around them. Above Sugar Loaf and Cranberry Bog. Lot packed in.

TU: Did you view this area?

Dr. K: No- I have never been on that area of site. I’m hypothesizing, based on slopes. Haven’t been on site. I was here yesterday.

TU: You heard Mark Sengenburger’s testimony?

Dr. K: Yes.

TU: His testimony said no development planned on steep slopes or on wetlands. Clarify?

Dr.K: Lot of development planned on steep slopes. Fifteen degrees of slope and more.

TU: Aware of Mr. Sengenburger’s testimony: Wetland impact minimized and determined acceptable. Aware of that?

Dr. K: But we’re talking about biological activity and wetland activity.

TU: Who is we’re?

Dr. K: I’m talking about that.

TU: No other questions about site plan map.

Dennis Zicah (Lake Simond Road resident): We’re looking at two different maps on two different screens?

TU: Go to page 9 of pre-filed testimony. Pages 7 to 9. Question there: the applicant asserts site has been heavily logged for decades therefore cannot be further fragmented. Did you write this question?

Dr. K: I don’t recall.

TU: Did you write question…you don’t recall?

Dr. K: Don’t know. Questions written and modified by Adirondack Wild and all vetted and looked at by me.

TU: Let’s turn to your answer. Asked if you agree. No yes or no. –and then go into explanation. What project components were you, Mr. Plumley and Mr. Gibson asking about?

Dr. K: The applicant and his people asked the question.

TU: Since you attempted to answer the question, where is this assertion found in application.

Dr. K: Has been a theme woven in this hearing.

Meave Tooher: Objection.

TU: Someone has made a statement and he is attempting to answer this statement which was never made. Where does it reside? In application? At hearings? Where?

Judge: Need to focus on the answer. I guess appropriate question would be what is the basis for the assumption in the question.

Dr. K: Documents that I read; testimony I have given.

TU: Can you identify document?

Dr. K: No I can’t

Questioning from Paul VanCott, attorney for APA

VanCott: Refer to pre-file testimony page 15, lines 11 through 14. In that portion, you conclude wetlands in project site not adequately delineated? Correct?

Dr. K: Don’t have numbers.

VanCott: repeated question.

Dr.. K: May be certain types not delineated. That is, normal pools and vernal pools.

TU: Object. Referring to supplemental testimony.

Dr. K: There are examples of small wetlands not identified.

VanCott: Please identify areas of wetlands not adequately delineated, based on your pre-filed testimony.

Dr. K: Right there, opposite bus or parking area.

TU: Man’s never been on the site

VanCott: Basis of that opinion?

Dr. K: Not prepared to talk about today.

VanCott: You said some areas not adequately delineated at time you did pre-filed testimony?

Dr. K: Several proclivities on slopes that could hold water, possibly. I believe there were small areas not delineated.

VanCott: Did you assume wetlands associated with streams?

Dr. K: Yes, based on topography of site.
Thought I saw some small vernal pools.

VanCott: Since never been on site, can’t point to specific wetlands?

Dr. K: Yes, but sense that not all wetlands looked at.

VanCott: In preceding testimony, talked about wetlands that would be jurisdictional. Greater than one acre in size and connected to intermittent streams. Did you know agency does not have jurisdiction over intermittent streams?

Objection. Which regulations referring to? APA Act, Wetlands Act, etc.?

VanCott: Going after Dr. Klemens discussion of our regulations (in pre-file testimony). No further questions.

Meave Tooher for Adirondack Council: Understand not asking questions about pre-file addition. How about his observations during visit Monday? Joel Russell gave observations of visit to site.

TU: Others didn’t file additions to pre-file.

Meave: Not looking to question pre-file addition. On tour of site for Adirondack Council, on page 2 of testimony line 18, question how do you see your academic expertise. Impact assessment is at core of these proceedings?

Dr. K: What we’re talking about is impact on environment, wetlands, wildlife, economy…on whole range of values, both biological and otherwise.

Meave: Received an award on ecological impact on land use decision making?

Dr. K: When look at development, tend to look at cleared area. Look at a ecological footprint many times larger than what’s shown on plan. By using scientific information, get impact more in harmony with the development. They are concepts that argued about a lot. Science has obligation to put information into a format that is understandable.

Meave: Ecological footprint?

Dr. K: The entire area impacted by the development. It can extend one quarter to half miles beyond the area (of development). Issues like lighting, noise in developed areas that will spill over into the ecological areas.

Dr. K: Ecological footprint extremely large, because of number of roads and the way development spread across the entire parcel. Species respond in different ways. This is fairly spread out development….it is sprawl. Great camps very large subdivisions. These things not unlike many suburban developments. Give people the illusion of greenery. That’s why it should be made more compact. It helps with a variety of good objectives.

Meave: Spent considerable time working on good practices of forestry, etc?

Dr. K: Many years of work. Worked on forests, farms, etc. People often say if land is already disturbed may as well develop. Land can rebuild ecologically given time, so that is false. Is recovery on those tracts. As long as landscape is working landscape, many considerations preserved and over time can be restored. Once development in place, very difficult to regain the landscape…may take centuries. Will be losing all of that.

Meave: Best management practice for RM lands?

Dr. K: First understand what’s there. Need to talk about most important wetlands, streams, vernal pools. Most of development should be on moderate intensity zones rather that RM lands…where development more compacted.

Dr. K: Best type of development is when all ecological considerations weighed in first.

Meave: From your perspective, too late to assess all these resources and evaluate them?

Dr. K: Never too late to assess resources. Within context of hearing…not Lawyer. Can it be modified…believe it can.

Meave: How assess development in RM lands?

Dr. K: Try to basically put the areas of highest biological importance in lowest type of use. Forestry, hunting, etc. don’t increase fragmentation.

Meave: The ACR development wasn’t planned with an understanding of species. Application plagued with dearth of wildlife information.

Dr. K: Pound for pound more red salamanders than any other. No reference to the 15 types of amphibians that occur on the site.

Meave: You visited part of the site?

Dr. K: Tiny part…several roads, including Read Road.

Meave: Regarding the testimony, concerning ecological connectivity between lowlands and uplands. How determined?

Dr. K: By studying the site.

On western portion of site which I’ve not seen, from map can observe wetlands behind Sugarloaf, along Route 30, the feeds Cranberry Marsh…about each a lot of development has been proposed. If you are an amphibian and want to come off uplands portions to wetland areas have to cross through development yards and across roads where risk of mortality is much greater. Cutting off amphibians from being able to get into those wetlands…where significant amphibian breeding.

Meave: What is the benefit of uplands to amphibians?

Dr. K: They breed in wet areas and migrate to drier upland areas. They spend 11 months of year in upland forests. If allow development in uplands, lose your amphibians. So need a plan to protect these animals.

Meave: Talking wetlands and surrounding areas?

Dr. K: As ecologist, wetlands completely linked to uplands. Definitely linked. Active interplay between them. Lot of wetland regulations only look at wetlands alone and not surrounding areas. So this large area offers great opportunity for how someone could achieve that balance.

Meave: This time of year critical for amphibians. How long would you need to study.

Dr. K: For a 1,000 acre site, 600 hours over several seasons. About 3,000 hours that could be trimmed with many biologists. Not impossible to do in one season if had team of biologists.

Meave: Protection of amphibian interests, what type of conditions can be imposed to protect those areas?

Dr. K: Developed manual for best development protecting amphibians. First you must prioritize wet areas and their importance. We’ve used that a lot in Connecticut and NY. It lays out assessment methods of determining value of pools. Develop conservation strategies. Stay off first 100 feet and then develop only 25% of area from within 100 feet to 900 feet from the pools. Not a prohibition of development, but a strategy for best development.

Meave: Define the term vernal pool?

Dr. K: Depression that fills with water in spring and dries by summer. Amphibians breed there in spring. My hypothesis, that on western side, many cryptic vernal pools, which are amphibian breeding habitats. Tree frogs breed there. Vernal pools have flood control values, and extremely high importance for breeding.

Meave: How would Cranberry Pond be different from vernal pools?

Dr. K: Has many animals in it. I’ve seen it from aerial photographs. I believe there would be vernal pools embedded in Cranberry Pond marsh areas.

Meave: Anything in materials about mapping of vernal pools?

Dr. K: I assume vernal pools not identified.

Meave: What additional base line information to addressing Issue No. 1 (resource management lands protected)?

Meave: Should this application be deemed complete?

Dr. K: No. A fundamental piece of any large development is understanding all the wildlife resources. The ACR application should be ruled incomplete. I have ruled that in my own planning board deliberations. You need good info to make determinations. How can render on area on 6,300 acres- that is very ecological rich- how can you proceed without understanding all the resources. But I’m not the APA..

Meave: Fragmentation discussion. Is the project an ecologically informed site design?

Dr. K: This is not an ecologically informed site design! Very little site work was done to determine ecological values. There is deer yard, but that’s not only type of wildlife on site. No conservation planning on site, otherwise could manage for best stewardship of all wildlife species. For eg: identify important vernal pool, with breeding of important species. How will be maintain that pool. That’s good stewardship planning.

Meave: Page 9 in testimony. TU asked about logging. Award heavily logged?

Dr. K: Can easily see that. Logging creates open patches, but logging also opens areas where other species can flourish .One of the most intellectually dishonest arguments used by developers is that nothing further can be lost after logging in an area is covered with development. With development there is no opportunity fo an area to recover. Uneducated people see a site and when heavily logged, see no reason not to build houses.

Meave: So the fact that logging has occurred, does not mean the site has been irreparably effected.

Dr. K: No. The land would recover over time. Development and forestry are on two separate tracks.

Meave: Other ecological considerations not evaluated?

Dr. K: Don’t see much information. Their bird list very short. I’m used to seeing applications with lot of information about all types of ecology. Right now don’t have data and we’re debating lack of it. Developers need to look at what does data means in terms of site layout. But not there without data.

Meave: What if any adverse impacts have you seen from the design of this site?

Dr. K: All speculative. I do have a concern about the wastewater treatment plant and impact it will have on Cranberry Pond. All sorts of impacts must be mitigated. Must know impacts to know what you are mitigating for.

Meave: There is testimony on page 12 discussing a project in the Tanzania National Parks, similar to APA situation. What has occurred with regard to species mapping since the 1970s?

Dr. K: So many more techniques today…the explosion of information has been huge. Lot more citizen groups involved. People now have a huge interest in the natural world.

Questions from Jon Kopp (representative of the Tupper Lake Chamber of Commerce)

Jon Kopp: Explain ecological integrity?

Dr. K: As I define it, it’s basically enough connectivity and wholeness to allow a system to continue to function over time. Eco systems evolve over time, and provides for evolution and resiliency to recover from small impacts.

JK: No matter what building built, some type of impact. Will ecological integrity be altered.

Dr. K: Will change. Let’s get areas where it will be less affected.

JK: How do you value it? For instance, whatever resource you value.

Dr. K: Can justify it on several different levels. For example, financial. Some things of ecosystems have extreme values. The things we enjoy. When lost, public foots bill for recovery. Other values like wildereness and open space that are more difficult to monetize…more spiritual…important for the tourist economy. How do you value a wonderful view. Ecological integrity speaks to that. No one is against development…it’s about how it is done.

JK: Is ecological integrity often compromised for human benefit?

Dr. K: You try to balance human needs, property needs with ecological integrity.

JK: Regarding Cranberry Pond, where did you find your information on it?

Dr. K: I found it in the application. I’ve seen various maps. I’ve seen marshes on western end from ski slope road.

JK: Did you notice the dead timber?

Dr. K: It indicates a dynamic system, where many ecosystems operating. Beaver moving in, resulting in flooding. That’s dynamic process… part of what integrity is.

JK: The pond has changed over the years. At one time it was smaller. Then the beaver moved in and it grew. When you travel through Adirondacks on a good rainy night, you notice lot of frogs and amphibians crossing road?

Dr. K: Yes.

JK: See this each year. These are on roads. In some cases can roads prevent amphibians from moving from one area to another?

Dr. K: Yes they do.

JK: When water goes out of a beaver pond, the habitat changes. How does that impact amphibians?

Dr. K: When they are impacted, will move to another area of wetland. With lot of development, area s to relocate are diminished. Once area is cut up, not as easy to respond to recovery.

JK: Species come in and often overtake other species?

Dr. K: There are always periods of boom and bust. The reason the Adirondacks can sustain various types of species is that these areas can connect.

JK: Last ice age in Adirondacks?

Dr. K: There have been four ice ages…6,000 to 7,000 years ago wasthe last one.

JK: If you lived to be 100 years old…and another person succeeded that person who lived for 100 years. In 6,000 years, would get 60 people. Would you get the same opinion from them on….environmental change? How do you quantify ecological integrity given there will be environmental changes?

Dr. K: Ecological integrity is maintained where areas are connected. The more connected a system is, the more able it is to maintain ecological integrity. When Ice Age comes wipes everything off, then we start all over.

JK: Say I build a house and disturb the ecological integrity?

Dr. K: There will be diminished ecological integrity. Best goal is to develop an area with best ability to let an area recover. The aim is to eliminate small ecological islands.

JK: Just made value statement about ecological integrity, based on two different ecological areas.

Judge interrupted for purposes of framing the question: Can you have a new ecological integrity and is there a value?

Dr. K: Post development you will have a different ecosystem. A larger system will not be intact. People may enjoy it, because they like living near nature. But overall the system is more like an island, which are fragmented. Ability of those islands to sustain major changes will be less. It will be a weaker ecological system.

JK: Will development impact amphibian population in the Adirondacks?

Dr. K: No but it will damage the ecological value of the site. There may be species that are state-listed (for protection) on the site. If blue-spotted salamanders on site, and if lost, could be major loss.

Questions from John Caffry, attorney for Protect the Adirondacks

John C: Follow-up on pre-file. Mr. VanCott asked about definitions of wetlands, etc.
Fair to say vernal pools are less than one acre in size or not connected to stream?

Dr. K: Smaller than one acre. Not generally have an outflow and inlet.

Caffry: One acre limit (for wetlands is a legal definition?

Dr. K: Yes. Provides value if less than one acre. Existing water quality, existing drainage, others all apply to small wetlands.

Caffry: How about land?

Dr. K: As it relates to vernal pools and impacts upon them, existing topography, flood plain and hazard, open space resources, vegetative coverage, etc.

Caffry: In general what considerations apply to vernal pools? Does category five critical resource areas apply to small wetlands or vernal pools?

Dr. K: Some vernal pools have rare plants. They often contain rare and endangered species. Wetlands have valued effects.

Caffry: Key wildlife habitat, is it limited solely to rare and endangered species or others?

Dr. K: Vernal pools contain some conditional species; may contain threatened species as well.

Caffry: TU asked you about exhibit 5, the functional assessment study impact on flora and fauna. Remember seeing?

Dr. K: Yes but would like to see it again.

Caffry: Re. exhibit 39, does affect pre-file testimony?

Dr. K: No.

Caffry: TU asked questions about wetlands mitigation? Do you recall? From Mr. Sengenburger’s testimony that wetland impacts appropriately mitigated?

Dr. K: I recall they were merely avoided or fill was placed in them. That does not mitigate impact on amphibians!

Caffry: Refer to Oct. 2006 functional assessment study. Pages 75 to 90
You were asked some questions by Mr. Ulasewicz?

TU: Object…I need those documents back.

Go off record for minute…

Caffry: Pre-file line 7. Could you read the question that begins….?

Dr. K: Applicant assert that site has been continually logged and so no fragmentation.

Caffry: Do you remember TU asking that?

Caffry: Look at page 89. Second and third paragraphs. This is material from application?
Dr. K: Yes.

Dr. K: Read passage from application: “any alterations of wildlife will be minimal.” There is a downplaying of effect of development on wildlife. Don’t agree with comments by developers regarding impact on wildlife.

Caffry: Are there vernal pools on site? Based on your 30 years of experience?

Dr. K: I can say with 100% certainty they exist on that site.

Caffry: Regarding data. Doing survey of the property is huge, you said?

Dr. K: Yes.

Caffry: Recall Mark Sengenburger saying on more than one occasion APA staff asked applicant for wildlife data, and didn’t comply?

Dr. K: Yes.

Caffry: Any idea why applicant didn’t?

Objection from TU.

Caffry: When applicants don’t comply why with wildlife studies, why don’t they?

Dr. K: Sometime fear of what they might find. Sometimes for the cost of gathering that information. Becomes emotional for some developers. Some applicants not interested in getting information they don’t like. See sequel with poorly prepared scope of application. Many reasons projects like this don’t have complete information.

Caffry: You have assumed there are 15 species of amphibians on this site?

Dr. K: Fifteen would be high.

Caffry: Range?

Dr. K: Between 11 and 15, based on my 30 years of experience and other work I’ve done in Adirondacks. Spent lot of time on two species of salamanders all over state and in park. Trying to locate these hybrids.

Caffry: Did you observe other species.

TU: Objections. Way outside scope of project.

Caffry: Amphibians basis of food chain? Throughout Adirondacks?

Dr. K: They have impact through entire food change. Even dead ones are eaten.

Caffry: Birds?

Dr. K: Yes many birds eat them…like crows, ravens, etc.

Caffry: If breeding habitat disrupted, it effects the food chain?

Dr. K: Cumulatively it will…may become difficult for larger animals to find food.

Caffry: If lost large population of amphibians, would it effect wetlands themselves?

Dr. K: For wood frogs in particular. Linkage between amphibian productivity and quality of wetlands, including water quality, etc.

Caffry: You said the study could be done over several years. Are you aware the project came to agency on 2004? Had applicant started in 2005 or 2006, could they have done job?

Dr. K: Yes and we wouldn’t be discussing lack of data today.

Caffry: Is your hypothesis an opinion or wild guess?

Dr. K: It’s based on my understanding of Adirondacks as a whole and its environment.

Caffry: Would you clarify some testimony in response to questions from Mr. Kopp. Amphibians crossing the road. Wouldn’t it be true, some are crossing roads that exist?

Dr. K: There is high amphibian mortality crossing roads. People see lots of young, particularly among frogs.

Caffry: Impact to species come from cars or predators?

Dr. K: On rainy nights possum and raccoons know they’ll be on road. Large risk crossing roads. And from car traffic?

Caffry: Might road deter some species from crossing? Physical condition?

Dr. K: It can. Sometimes amphibians over generations relocate away from roads over time where there is a high mortality. No information available yet about populations in this project.

Caffry: Page 12 Line 5. Received McArthur Foundation Grant? Genius grant?

Dr. K: No, give money to regular people too.

Caffry: Reviewed pre-file testimony about Phyllis Thompson’s bird species study?

Dr. K: No.

Caffry: She observed 84 bird species. Would that be consistent with your expectations of flora and fauna?

TU: Objection. Phyllis T. testimony speculative and hasn’t be introduced.

Caffry: Based on similar areas you worked?

Dr. K: It’s far in excess of small list included in application. All species lists are very deficient in the application..

Caffry: In your professional opinion, by any accepted professional standard, is there sufficient professional data to determine there will be no impact on wildlife?

Dr. K: Insufficient data to indicate there’s no adverse impact.

Bayard Read: When speaking about ecological integrity on site, what you mean is not reducing the number of houses, but studying site to determine best location that won’t interfere with wildlife?

Dr. K: Basically planning for the site to preserve ecological integrity.

Bayard: Applicant intends to draw water from Cranberry Pond for snowmaking. Impact?

Dr. K: Very shallow. Could have significant mortality of species hibernating in the mud. In a draw down of water, it could freeze everything in hibernation? For species that winter in water it could become crowded and distressed. You anticipate a lot of disease associated with crowding. It could stress animals that stay active over winter and freeze others.

Bayard: Relates to biological assessments to an area. For salamanders are there important times to assess?

Dr. K: Yes. One of challenges this has, all project have, what bar do you set to determine the presence? More challenge to determine presence than proving absence. Expend reasonable effect to determine presence. Best time to survey for amphibians is right now. Some will breed a bit later. When I develop studies, I design a series of studies that define seasonal activities. And compiling data.

Bayard: Site visit allowed was on October 29 last year. Was that a good time?

Dr. K: Would have been marginal time. Don’t see much amphibian activity beyond Oct. 1. Probably would have seen a few green salamanders.

Bayard: Adirondack Wild asked for site visit?

Judge: There was a request. Visit ruled against.

Caffry: Question to clarify. Couple of time in response to Read questions, you said “You imagine”- was there a degree of certainty?

Dr. K: Yes…I’m getting tired.

Don Dew Jr: You are chairman of a planning board?

Dr.K: Yes.

Don Dew Jr. Two or three years to do a study?

Dr. K: On a site this large. Most sites like this would require team of biologists.

Don Dew: Do you, as planning board chairman, require every applicant to file complete ecological assessments?

Dr. K: Not for something in a hamlet.

David Gibson (Adirondack Wild group): Movement of amphibians you studied between wetlands and uplands was your focus?

Dr. K: Not limited to those.

David Gibson: What is the life zone around vernal pools, 750 feet to 1,000 feet?

Dr. K: Extends 750 feet but from 100 feet out.

David Gibson: In profile testimony on page 13, beginning on line 6, asked question about interconnections between site and Tupper Lake and other areas nearby, please read answer.

Judge: Already in pre-filed testimony

TU: Objection.

Judge: No cross examination on that.

Gibson: Trying to get to connectivity. Mud turtles in particular.

Judge: Already in testimony. I won’t allow.

Dan Plumley: Like to ask for a visual from the application to be put up. Prepared by agency staffing February 2007 in staff’s recommendation to send the project to anadjudicatory hearing. Ecological impact zones. Slide 30.

Slide was included as demonstration of existing ecological impact zones, presented by APA and one by applicant. Offer any perspective of what this slide presents? -And difference between sprawl development and cluster development.

TU: Object. This slide not relevant since still had Orvis shooting school and the upper elevation neighborhoods when it was completed.

Plumley: Rephrasing: APA staff chose to include an assessment of ecological impact zones?

TU: Outside his expertise. You are asking Dr. Klemens to interpret staff actions.

Judge: Sustain: In terms of redirect, do what do you feel needs to be emphasized.

Plumley: My goal is to get Dr. Klemens to assess if there were significant changes on ecological impact.

Judge: Frame it with several simpler questions. Has there been an improvement?, for example.

Plumley: Are you aware the project has been modified?

Dr. K: Yes, some I’m aware of. Orvis shooting school gone. Changes in great camp layouts.

Plumley: Do you feel significant improvement has been based on general changes you’ve discussed in supporting or reducing ecological impacts?

Dr. K: Don’t have any information to draw conclusion either way. Lack of information in the application makes that question hollow to me.

Plumley: How far do the amphibians range?

Dr. K: Some range 800 feet. Some frogs range 1500 feet. Then he added: 817 feet for spotted salamanders and 838 feet for some frogs.

Plumley: Did you review road layout in project? Given significant range of some of these, what problems would roads present?

Dr. K: It depends on the number of cars traveling on them and their surfaces. If paved whole different set of conditions. If curbs and catch basins, could create more problems for them. Many conditions of mortality based on types of roads. It’s all about site design…I’m sounding like a broken record.

Plumley: Testimony of controlling impacts through site design…?

Dr. K: Commissions often want to appear reasonable. Sometimes people before them are their neighbors. Sometimes studies are done after the permit is issued.. My advice it’s not the agency’s obligation to condition a defective application to make it whole. Clear instruction through applicant is important. Can’t make poor application correct with conditions.

Plumley: Purposes, policies and objections of resource management (RM) land is to protect resources. Is this application designed to protect physical and biological resources sufficiently?

Dr. K: It hasn’t been addressed adequately because don’t have information to do that.

TU:I know we have witnesses to testify this afternoon. Try to finish up issue No. 1 today and tomorrow. Issue No. 3 Friday.

Caffry: Do Harry Dodson first, so he can leave.

Afternoon Session- began at 3p.m. after hour lunch break

Judge: Some discussion about if parties were finished with Mr. Dodson, the landscape architect who testified on Monday.

No one had any more questions for him.

Tom Ulasewicz (TU): Two components of discussion about Mr. Dodson’s testimony. Compact community at base of existing ski areas. We’ll be introducing information about those communities. Second component: taken all three alternative designs and we have overlayed them on the resource maps in application. We will attempt to demonstrate with regard to all three do not follow regulatory requirements for approval. That’s all we intend to do. In overlap of rebuttal testimony, intend to ask ten or 12 questions about our pre-file testimony. Don’t believe any of it has to do with rebuttal testimony.

Meave: Couple of concerns. Like opportunity to review photos you intend to introduce.

Caffry: Don’t have objection to the concept of them introducing rebuttal. Am concerned with cover areas in their pre-file. May open up entire line of questioning on my part. Hope can limit it strictly to Mr. Dodson’s testimony.

Judge: Will allow rebuttal. If any parties have objections, they can raise them and I’ll address. Are exhibits available now?

TU: Yes.

Judge: Why don’t you distribute them?

Jeff Anthony, president of the Saratoga Springs-based LA Group (planners for the ACR) on witness stand.

Exhibit HD 22- new village at base of Stratton Mt., Vt.. on screen.

Introduced Jeff Anthony’s resume.

TU: Direct question to one of you. Do you recall Mr. Dodson’s testimony that all three of proposed designs are approvable? Did you review Mr. Dodson’s pre-file testimony on dense, traditional community development?

Jeff: Looked at HD 27 and 28. Uses hamlet of Tupper Lake as example. Of compact design. Traditional of typical hamlets in Adirondacks. Only concern to pattern is that grid pattern sometimes not compatible with natural environments with wetlands, sweeping views, etc. Would agree with Mr. Dodson that design is acceptable. In Adirondacks, however, projects do not follow this pattern. Very appropriate for use in core area where there is a walkable type community on smaller portions of ground which are flatter and more useable. Not subject to steep slopes, other natural elements.

TU: Mr. Dodson had represented three alternative designs are characteristic of typical resort designs and the ACR plan is outdated?

Jeff: I disagree. Mr. Dodson provided some successful designs, Stratton Mt. and Whistler BC. At Stratton, base village well designed. Support that design in a resort project. Only problem is this particular village has 18 shops, 18 restaurants, plus for an addition of 48 storefronts.

Looking at aerial view of Stratton. Core area at Stratton Mt.

Jeff Anthony: Core of Stratton Mt.’s development has dense development, walkable areas, retail shops, everything you might want in little village. Near lifts to mountain. Problem with pictures is that they were the only images Dodson introduced that represents a contemporary design of a ski area. It was a partial misrepresentation. Only shows core area. I’ve been at Stratton many times. Downloaded site plan. It shows the entire Stratton Mt. master plan showing many regions of development around core.

As you can see by master plan, much more than just core area. Golf course, many subdivisions of single family homes. Number of cluster of multi-family neighborhoods.

TU: Move that this exhibit included in record.

Caffry: Objection.
There hasn’t been a proper foundation laid for this document. When drawn. Ever approved by town? Don’t know how valid it is. Nothing to indicate the reliability of this document. Because it was just received, no ability by anyone to check it. Not appropriate to introduce.

Judge: Foundation?

Jeff: I believe it is on Stratton Mountain’s current web site.

TU: Who generated?
Let’s go to next PowerPoint.

Aerial view of Stratton Mountain prepared by the LA Group.
Jeff: Aerial imagery of Stratton Mt. area. Downloaded at my request. Current photography as current as can get. Downloaded last week.

TU: Prior exhibit Mr. Caffry objected to is that schematic represented on this downloaded version.

Jeff Anthony showed the core area and the various neighborhoods at Stratton Mt., Vt. Ski lifts come out of base area. Core area depicted by HD 22 and 23. Golf course to the north of core area. To north of course are subdivisions of single family homes.
To east of core area, can see a series of neighborhoods. All are multi-family neighborhoods. More development in the periphery of photo.

TU: To move first master plan into record.

Caffry: Object to master plan. If wants to make it part of aerial photograph, no objection.

Meave Tooher (attorney for Adirondack Council): No scale on first schematic.

TU: Be happy to add that.

Judge: Exhibit introduced. Parties can argue about in closing briefs.

TU: Any further comments about schematic.

Jeff: During visit several years ago, lots was happening on the mountain. Building ski bridges over and under trails so cars could get to units. Important, because considered ski in ski out housing. Very desirable for buyer. Very valuable for developer. Core community is very walkable, however, way Stratton operates is there are distant parking lots and shuttle service, much like has been proposed at ACR. There are many non-walkable components. Most neighborhoods aren’t. So shuttle system is in place.

TU: At Stratton majority of houses are not walkable distance to lifts at base core area?

Jeff: Correct. There are higher elevation units above base lodge.

TU: Do you know size of Intervale?

Jeff: Don’t know. Never been to Intervale.

TU: Size of Stratton?

Jeff: Don’t know acreage.

TU: Same as ACR?

Meave: Objection. Witnesses already said doesn’t know.

TU: Number of residences?

Jeff: No.

TU: Size of ski area?

Jeff: Four times ski capacity as Tupper Lake.
Exhibit showing Whistler, BC village are where 2010 Winter Olympics held.

Jeff: Well done. Very dense. Walkable. Whistler’s core village. But much more than what meets eye by Mr. Dodson.

Exhibit 175 Aerial photo of Whistler Mt. Ski Resort.

Jeff: Never been there.

TU: added to the record?
Mr. Anthony, you described to us what is in exhibit. Where is Mr. Dodson’s core area on the aerial photograph.

Jeff: Aerial photograph downloaded by technician. Downloaded last week. Simply to show the scale of the resort and the extent of the resort geographically. Not just core area, but neighborhoods extend great distances where other development has occurred.

Meave: Never been there. He’s speculating.

TU: Mr. Dodson never visited.

Objections from Meave and Caffry about validity of aerial photograph. No foundation there, they said. Could be anywhere on the planet.

TU: There is a latitude and longitude demarcations on if and that would represent location.

Objection from Caffry.

Judge: Will admit the aerial photograph of Whistler.

Jeff: Have conclusion about these two ski areas in general.

Meave: Objection.

Judge: Concern whether or not Mr. Anthony can testify about Whistler since hasn’t been there.

TU: Any conclusions?

Caffry and Meave: objection. No foundation for his testimony.

Judge: Sustain objection.

TU:With regards to aerial photo of Stratton Mt., any final remarks based on your profession and your visits?

Jeff: My concern for commissioners in looking at HD 22 and 23 and Mr. Dodson’s exhibits are somewhat misleading. They are giving the impression that high dense core village was only part. Resort extends much beyond the core. Whole picture is very similar to ACR. If Dodson said Stratton very desirable. What we’re designing if very similar. Neighborhoods outlying that not walkable.

TU: When reviewed three alternative design plans submitted by Dodson. Comments re jurisdiction by APA?
TU: Third alternative No. 1. Describe how this diagram came into existence?

Jeff: Exhibit 176.

Kevin Franke: As part of Mr. Dodson’s testimony. We simply digitized the housing locations and also put on plan boundary between moderate intensity and resource management. Loaded into CAD drawing.
Don’t recall delineation between moderate intensity and resource management on Mr. Dodson’s map.

TU: Move map into record?

Judge: Purpose?

TU: To demonstrate land use area where Mr. Dodson has established for development.

Meave: Mr. Dodson’s schematic not final plan.
TU: Explain what represented in diagram?

Jeff: Alternative No. 1. Essentially shows all development west of Read Road. Put line between RM and Moderate Intensity. Based on acreage of RM lands on site, our overall intensity guideline is 111. That’s maximum no. of houses, as per APA Act.
Given small plan to work with. Couldn’t tell if buildings were single family or what. If look at ….

Spilled his water and so asked for a break so APA staff could scramble around and get paper towels.

Jeff: Back track a little. Based on acreage in RM on site. 111 principle building rights in that land classification.

Caffry: Objection. Not building “rights.” They are not “rights.”

Judge handed Jeff Anthony copy of stipulation on #12 that refers to terminology.

Jeff: Call this overall intensity guideline…111 are potential sitings on RM property. When superimposed boundary line on Mr. Dodson’s site plan, found building colored in red are in RM land. Assumed all buildings would be single family structures. Five larger buildings. Counted 175 lots on his map. Don’t know if multi-family or what. At that number he is exceeding allowable by 64, including five bigger buildings.

New map showing wetlands. Same alternative by Harry Dodson from Tuesday.

Jeff: Significant amounts of parking lots within 20 feet of wetlands.
In relation to this diagram, brings into discussion clustering and density of development. Agree clustering good approach to development. However when dealing with region like Adirondacks, can’t build as dense. In Dodson design, buildings close together. Resource conditions make that difficult. We avoided those resource limitations. This plan allows no choice to avoid them. This is consistent through entire alternative plan No. 1, as we have analyzed. Just within wetlands alone.

Caffry: Is it your understanding that Mr. Dodson’s was final or conceptual?

Jeff: Conceptual. But in terms of degrees of violations, not workable.

Caffry: Subject to further refinement?

Jeff: It would have to be.

Map entered into record.

Drawing put together late last week and Monday by LA Group staff. Developed drawing by superimposing Mr. Dodson’s plan over slope map. Colors represent how steep.

Jeff: 87 buildings with slopes on 25% or greater. After look at both of plans, real question has to be asked how to build a project of this nature. Everything is exacerbated when building on steep slopes. Draining problems multiply. Have to do grading plan for this at this conceptual level. If tried to build would be speculative. With buildings so close, when compound that with wetlands and drain ways, you would remove a lot more vegetation. Lose all evidence of natural characteristics within neighborhoods.
In our plan we respected steep slopes and wetlands. Avoided those areas. We do have impacts.

TU: Move onto Mr. Dodson’s Exhibit 40. Aerial sketch of ski slope trails and clustered neighborhoods. With regard to alternate designs 2 and 3 in testimony. How do overlays impact on other alternatives?

Object from Meave.

Judge: overrule.

Jeff: western area not much difference. Overall intensity guidelines violated. Pressure on wetlands.

Meave: Object. Testimony specious. Overlays done for alternative 2 and 3.

Judge: Did you do overlays?

Jeff: No we did not.

TU: Mr. Dodson said there were the same number of buildings placed west of Read Road?

Meave: Same number of buildings in entire development, not just west of Read Road.
Caffry: Another objection. Mr. U. said limited time couldn’t do. Last Thursday served supplemental pre-file. Could have produced the overlays. They had Mr. Dodson’s documents for quite a while. Could have laid foundation, but didn’t do it.

TU: Question was, with regard to alts. 2 and 3, do you have any comments on viability of those alternatives?

Judge: Be more specific.

TU: With regard to alts 2 and 3, do they meet overall intensity guidelines?
Jeff: No they don’t.
Caffry: Objection…no overlays.

TU:……in your review of those, do they meet APA guidelines?

Jeff: If forced to crush those numbers, will come to same conclusion as did on No. 1.

TU: Similar results established with regard to wetlands and slopes?

Jeff: With respect to tight clusters it prevents not being able to avoid problem areas, etc. yes.

TU: Principal buildings in wetlands and over 25% slopes?

Jeff: Possibly.

TU: In terms of layout and design of HD 40, any concern about how and where houses located, as compared to ACR siting?

Jeff: Few concerns. First off. In these clusters, and as result of seeing recent exhibits, we see a mixture of multi-family and single family in neighborhoods. No pattern. Client has no intention of building such mixed unit neighborhoods.

Meave: Object.

TU: We’re responding to Dodson’s exhibits.

TU: Just refer to HD 40 (aerial shot of mountain).
Judge: Why don’t you appreciate way Mr. Dodson drew diagram?

Jeff: Graphically misrepresents project. No grading plan. How clearings were arrived at? Graphic representation doesn’t represent situation that would exist in final project. Far more disturbance..far more trees cut. This picture represents artist’s rendering, and not real conditions.

TU: Different types of buildings, have opinion on reality of situation.

Jeff: Can only go on my 41 years of experience. Only 1 project designed where had multi-families adjacent to single family buildings. Can’t think of many projects, really. Did one at Killington. Only reason worked was that prices were same.

TU: In your opinion of marketability, marketable design?

Caffry: Objection. Mr. Anthony not expert on marketing. Thought he was a landscape architect. Does hold a real estate license?

TU: He is a landscape architect who designs projects like this for the market.

Judge: Mr. Dodson did talk about marketability, so I’ll allow question.

Jeff: Few projects I’ve ever seen with severely mixed neighborhoods.

TU: In your opinion, is it marketable design?

Jeff: No.

Reconvene tomorrow at this location. Proceed with cross and rebuttal of Mark Sengenburger. Turn either to Franke and Jeff Anthony.

VanCott: Then do staff panel.

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