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Adjudicatory Hearing Round II – Day Three

April 29, 2011 by · Leave a Comment 

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By Dan McClelland, Tupper Lake Free Press

Round II Day Three of the Adjudicatory Hearings
Thursday, April 28, 2011 at Ray Brook headquarters of Adirondack Park Agency

Parties present: Don Dew Jr., Jon Kopp (representing the chamber), Dan McClelland, Fred Schuller, John Caffry, attorney for Protect the Adirondacks, Brian Houseal and Meave Tooher of the Adirondack Council, Bob Fuller and Mayor Mickey Desmarais from the Village of Tupper Lake, Kevin Franke, Jeff Anthony of LA Group, Bayard Read, Edith Lamb of Birchery Camp, Dennis Zicha, Tom Ulasewicz, attorney for the ACR, Tom Lawson, ACR partner, Heidi Kretser and Glennon of Wildlife Conservation Society, Jim Lanthier, Dan Spada, Paul VanCott, Mark Sengenburger and Colleen Parker of Adirondack Park Agency, Scott Abrahamson of DEC, Kirk Gagnier, attorney for town board and village and town planning board. Roger Amell attended yesterday’s session.

Judge: Continuation of adjudicatory hearing on ACR

Tom Ulasewicz: a motion predicated on fact that Adirondack Council and its two expert witnesses, pre-filed their testimony, failed to present support assessment methodology and actual assessment performed by Glennon and Kretser. Only after have results of work. Absence from record and failure of parties to review, make this hypothesis suspect. I propose that Council’s expert witnesses provide all documents to parties on or before May 6. That is, the Miller methodology and actual written evaluation performed by them using the Milder Methodology, including impacts, assessments, conclusions, etc. While applicant my participate in cross section, will do so only preliminarily. Schedule further cross examination or all of cross examination for third hearing session either before or after Phyllis Thompson. Applicant seeks to defer rebuttal examination until third session, after all cross examination of them is completed. Applicant seeks right to supplement testimony, based on new documents introduced on May 6.

Judge: Could you enumerate your points?

TU: Repeated motion.

Meave Tooher: Pre-filed testimony in March. Milder Technology is publicly available. Witnesses not required to provide public documents. None of witnesses have provided those. If TU had requested earlier, would not be facing the delay now. Motion is untimely and should be denied on that basis. For $30 on line he can obtain document. As far as underlying documentations in assessments, don’t mind trying to provide some of that. Very broad sweeping testimony. Cross examination should be done this week. Mr. Ulasewicz should get just one shot at cross examination. My concern is about delay. They are prepared to testify this week to address issue No. 1 (resource management protection). Important to keep witnesses and testimony joined. Looking at a break up of testimony.
Also asking for opportunity to introduce extra experts. Beyond the deadline

John Caffry: Find this motion ironic. Early on in this process, you set schedule for discovery. The interveners asked for various things. .Mr. Ulasewicz chose not to request discovery demands. Time for discovery is well past. Many of my demands refused because Mr. Ulasewicz said documents publicly available. Yesterday applicant produced a new document that parties had not received. Of my 174 discovery demands, asked Mr. Ulasewicz for every document and list of witnesses. He provided no documents. I may make a similar motion myself. Oppose the motion.

Bayard Read: Read family made supplemental discovery demand and you rejected as untimely. Seems to me this is same thing is happening on Mr. Ulasewicz’s part.

Paul VanCott (APA staff attorney) If you decide to grant the motion, staff request put off all of Kretser, Glennon testimony until hearing III dates. And quick file the rebuttal testimony.

Dan Plumley of Adirondack Wild arrived late. Motion before Judge was explained to him.

Caffry: One element of my objection you omitted is deadline for discovery passed months ago and TU made no requests.

Kirk Gagnier: Agree with APA staff.

Caffry: I think too if they are going to provide a new witness, we should have right to examine the witness.

Meave: The applicant has not provided a single witness who is a biologist or scientist. And now try to backfill that testimony.

Dan Plumley: Yesterday Dr. Klemens attempted to provide supplemental testimony. That was objected to. Can’t fathom the appropriateness of an additional witness at this time.

Judge to TU: How come you didn’t request materials, including Milder method, etc.?

TU: Decided to make this motion between Tuesday and Wednesday, and brought it to attention of Meave Tooher and Paul Van Cott. Reason didn’t do it earlier, had five issues to address in two weeks. Many notices filed. And Glennon-Kretser testimony was the last item to be heard on issue No. 1. Quite frankly, only started reading Glennon-Kretser late last week. Read it all weekend.
Think very important point to be made. Not question why TU didn’t ask for earlier. Why didn’t Adirondack Council file a needs document a month ago. Agency members should have all these support documents and shouldn’t have to go to web site. I want what Glennon and Kretser looked at and what they put in their study. I have no idea what has been posted on their employer’s web site.
With regard to no scientific witnesses, that was my conscious choice. May use them in rebuttal. Have to have comparable people to Glennon and Kretser. Rather to do all cross- examination at same time…so could defer to third session. No objection to pre-filing rebuttal testimony, providing given reasonable amount of time. Don’t know if will have rebuttal testimony.

To the conclusion I thought discovery was a waste of time, not true. Wasn’t aware of Glennon-Kretser’s techniques until received the pre-file testimony. With regard to Mr. Klemens and his supplemental info. He was providing new information. Could take more time and run through history of review of application over past five years. This application filed 2005. Milder Methodology first published in 2008- years after we filed our conceptual. If I can’t understand pre-file testimony without these documents, don’t know how agency commissioners will.
I must have these documents.

Meave: As far as scheduling, everyone working very hard. Lot of information we’ve had to read…including the experts. Working within that schedule is the course of doing this hearings. We work on tight schedules all the time. If TU couldn’t comply, wasn’t an opportunity to say that earlier on.
This methodology not new…2008. We discussed during mediation. We’ll make Mr. Milder available if necessary. Now TU says has biological witnesses…he’s playing Whack a Mole with these hearings. All parties have complied with schedule set by your honor. As far as appeal of discovery process, and extending deadline. Been closed for some time. We’re all operating on same schedule.

Judge: Had asked for witness list in January and did receive one from Adirondack Council

Caffry: When I would suggest schedule changes, Mr. U. would object. Now he’s doing the same thing.
Mr. U. just merged with large firm in Glens Falls. Mr. Sweeney is a member of largest firm in Albany. Zillions of attorneys there. Then have LA Group. Very large, well staffed organization. Then filed have Mr. Curran available. All of us have been reading pre-file. Kretser and Glennon are well known experts. Even quoted by applicant. We’re all overwhelmed…all over worked. Haven’t had day off in two months.

When I requested discovery demands, didn’t provide list of expert witnesses. Thought resolved, because received nothing. He promised he would produce certain information which he didn’t.

Judge needed time to consider.

Back on record.

Judge: Applicant’s motion denied. It’s untimely. All parties have complied with schedules. In fairness to everyone…

Paul VanCott: Mr. Sengenburger will not be available after 3p.m. today.

Judge: Proceed with Jeff Anthony and Kevin Franke of the LA Group.

Judge: Who has cross-examinations?

Bayard Read, Van Cott, Dennis Zicha, Plumley, Meave, APA staff, Kirk Gagnier.

Paul VanCott: two questions at this point.

Meave Tooher (Adirondack Council): Exhibit 173 Stratton Mountain diagram. You testified that 173 is schematic of Stratton Mt. Where did you obtain?

Kevin Franke: From Mr. Lawson, obtained off the internet.

Meave: Said not familiar with Intervale? Is private?

Jeff Anthony: Not aware…
Don’t know extent of land owned by Stratton Mt.

Aerial view of Stratton Mt. showing extended development.

Jeff: Shows extended areas.

Meave: Which portion represents Intervale or privately owned.

Jeff: Not sure.

Meave: Can’t identify what is owned by Stratton.

Jeff: I’m familiar with master plan, but don’t know what is owned by mountain and what is privately owned.

Meave: Any great camps?

Jeff: Don’t believe have any.

Meave: Where is center core village located?

Jeff: At center of map.

Village Core of Stratton Mt. Village photo

Meave: You testified only problem with comparing to ACR, this has 48 storefronts. Substantially larger than ACR?

Jeff: Said comparable size.

Meave: 49 storefronts at Stratton, doesn’t ACR have some retail?

Jeff: No so. Patterned ours to be less dense. Promise not to compete with downtown. Services there are essential skier services, limited food service, ski lodge, arts and craftgs. Do not propose putting in proliference of shops and retail facilities.

Meave: In updated ACR information, you list base lodge complex, coffee shop, bar lounge, ski shop, restaurant, outdoor dining, additional base area buildings, gym, clubhouse and spa, arts cabins, probably include some sales.

Jeff: True, but at no point did we suggest proliference of retail.

Kevin Franke: Mr. Dodson wasn’t that lucid…

Caffry: Objection.
Judge: Mr. Dodson’s testimony will speak for itself.

Meave: Look at artist’s rendering of Alternative #1 showing village center at bottom of mountain. Reasonable those buildings would include same things as you propose at ACR?

Jeff: Those five buildings located in resource management.

Meave: repeated question…please answer question.

Jeff: The five buildings I pointed out where not in the central core area. Yes they could include sports conferences, etc. Couldn’t tell what they were, so assigned one principle building site to each as courtesy.

Meave: Aware Mr. Dodson had to produce CAD files?

Kevin Franke: Yes.
Meave: You didn’t produce CAD files to Adirondack Council. So Mr. Dodson’s files were different from yours?

Franke: He converted PDF files into CAD files.

Meave: He had to use shake files created by you?

Franke: No had PDF files.

Meave: His CAD files not identical to yours.

Franke: Can’t say…only can say that he accurately transferred information.

Meave: When create an overlay is there a margin of error?

Franke: Yes

Meave: Transfer location of building on ground to location of building on map.

Franke: Can’t say. Margin of error might be five to ten feet.

Meave: So can’t say how close your files are to Mr. Dodson’s?

Franke: Judging by experience, perhaps 20 feet. Often take GPS in field and compare to CAD file diagrams.

Meave: You often tweak the map to the actual location?
The environmental factors…would adjust plan for environmental factors?
Franke: Yes.
Meave: Walk me through steps in process between conceptual plans and hitting the dirt?

Franke: Design process would not begin until had basic environmental data at hand.

Frank and Betty Bencze and Elaine Yabroudy arrived.

Jeff: When we do conceptual plan, we have already done a site analysis, so is very accurate…not hit and miss. Our plan developed very carefully and lot of care put into it.

Meave: You go from conceptual plan…what’s next?

Jeff: going in the field and checking things, making sure it’s right. We catch everything as do initial analysis. Basic data is accurate.
Then blow up scale. Add more plans, like drainage, etc. Then go to construction drawings. Then bid awarded to contractor.

We have completed a large portion of the schematic.

Meave: Step by step process. Concept plan comes before schematic plan and then get to working drawings.

Jeff: Mr. Dodson laid out three alternative plans that said was permittable.
I believe our concept plan is also permittable. I can say that because we’ve checked it carefully. Refinements could involve moving building or road a few feet. But not those he proposed near wetlands and on steep slopes.
Meave: You are saying Mr. Dodson’s concept plan couldn’t be redefined to be permittable.

Jeff: His plan would have to take over 60 homes and put them some place else. Where I don’t know.

Meave: If put those buildings 25 feet over. Would be permissible?

Jeff: Would be banging into each other. Not enough space left in those clusters to accommodate that movement. Clusters would get bigger, begin to look more like our clusters.

Meave: Mr. Dodson could change plan to make them permittable.

Jeff: If he moved buildings, couldn’t put them adjacent to resource. Not enough room to move those buildings around. One of deficiency is no land devoted to storm water management…takes up a lot of land. See no areas allocated in his plans.

Meave: DEC has not approved your storm water plans?

Jeff: Have designed to the latest standards. Nothing has been approved.

Meave: Indicated Mr. Dodson’s plan puts buildings in different locations regarding Resource Management and Moderate Intensity areas?
You indicated he had too many buildings in RM?

Jeff: More than allowed.

Meave: Aware leaves over 3,000 acres completely undeveloped?

Jeff: Yes.
Meave: How many acres completely undeveloped?

Jeff: Don’t have that number at my disposal.

Meave: Could do alt. #1 if moved buildings out of RM and moved to moderate intensity?

Jeff: Yes…if did all that.
His basic core village close to ours, although his is more dense. Ours fashioned after Sun Dance…more pastoral, less busy.

Meave: How close is Sun Dance close to resource management land.

Jeff: No idea.

Meave: Know why he prepared three alternatives?

Jeff: Idea to get in front of commissioners to convince them it is an approvable project, which they are not.

Meave: Quoting Issue No. 1…”are great camp lots on well defined sites?”

Jeff: If were to present alternatives, should have presented viable alternatives.

Jeff: Wouldn’t present alternatives that weren’t viable. Why present an unviable alternative?
Commissioners may believe viable. They are not!

Meave: In last six years, you have moved buildings on that plan?
Jeff: Yes.
Franke: Always in compliance with overall intensity guidelines.

Meave: You’ve had to modify?

Jeff: Our conceptual plan has been approved by staff.

Meave: How many times met with staff?

Jeff: Can’t count.

Meave: Mr. Dodson met with APA staff?

Franke: No.

John Caffry to cross-exam

John: No problem if I am interrupted for lunch.

Caffry: Reserve right to pass on witness qualifications until to get to that point in testimony.

TU: What are you trying to accomplish?

Caffry: Don’t have to explain that!

Judge: Let’s focus on issue at hand.

Caffry: Testifying in rebuttal to Harry Dodson. When did you receive?

Jeff: Answer unclear…April 21, 2011.

Caffry: Did attorney serve notice that wanted rebuttal opportunity?

Caffry: Arrived here April 26. Mr. Dodson testified.

Jeff: Yes.

Caffry: After lunch TU provided exhibits out. When did you and your firm get schematic from Mr. Lawson?

Franke: Either Friday or Monday.

TU: Objection.


Jeff: My office produced all documents and I brought them with me on Tuesday.

Caffry: Several completed on the 18th. Couldn’t they have been submitted with your request?

Jeff: It was work in process…to file in parts would have been ludicrous.

Caffry: Your attorneys sat on for day and half?

Meave: Mr. U. said they were not available before yesterday. Direct contradiction.
Caffry: Also goes to amount of time parties had time to review.

Caffry: I asked: You brought here April 26. Didn’t present to any of parties by 27th?

Jeff: Had in my possession?

Caffry: Familiar with term sandbagging?

Jeff: Know the term, but I don’t do that.

Caffry: Yesterday in rebuttal looked at notes.

Jeff: Had notes…but mostly ad libbing.

Caffry: I’m allowed to see those notes.

Off the record.

Caffry: Mr. Franke: did you refer to any notes.

Franke: Copy of Jeff’s notes.

TU: They are a panel.

Caffry: Just want to make sure getting everything there.

After Lunch

Continuing cross examination of Jeff Anthony and Kevin Franke of the LA Group

Discussing measurements on a schematic.

Jeff: My measurement roughly east west. Stratton Mt.

Caffry: Approximately 2 miles. In scale of three inches to mile?
Very rough estimate?

Jeff: Yes.

Caffry: I’m confused. You told me Stratton Mt. includes golf course and one subdivision immediately adjoining.
When you measured ski area, measured four miles.

Caffry: You said you thought ski area was limited to the one slide.

TU: Like Jeff to be able to finish his answer.

Caffry: Could you measure area that is part of resort, from top of ski hill to first subdivision, adjoining the golf course?

Jeff: Ten inches.

Caffry: About ten inches? More like 9.5 inches?

Jeff: I say ten inches.

Caffry: Limiting testimony to one exhibit. Measure from top of ski hill and heading to right and to golf course. See one, two, three streets to right of golf course.

Spent half hour measuring a map of Stratton Mt. Ski area.

Caffry: comes out to 3.5 miles?

Jeff: Yes

Caffry: Care to change testimony that Stratton four miles long? Misleading to talk about resort design when talk about base village?

Jeff: Drawing to show extent of project. Whole purpose of exhibit is to illustrate that more to a resort than core area. If want to read more into it, fine. All I intended was extend.

Caffry: I’m talking about project as whole. I’m talking about ACR versus Stratton. Now established not as large as you said yesterday.

Jeff: I estimated it yesterday…slightly incorrect. Four miles versus 3.5 miles.

Caffry: Thirty-three percent difference?

Jeff: It’s an approximation.

Caffry: Said yesterday that Foxman’s project four miles?

Jeff : Slightly over four miles.

Please address current site plan on screen

Caffry: Looking at overall design of ACR
Update you submitted?

Jeff: True.

Caffry: Care to alter testimony before measure.

Jeff: Not until I measure (the plot plan).

Parties took five minutes to measure the map and do arithmetic about size.

Caffry: Wish to change testimony.

Jeff: Seven miles but not all developed.

Judge: Need clarification. Talking about property. Want to be sure what question is about project site.

Caffry: Yesterday said four miles. Today said seven miles.

TU: Still like him to finish.

Jeff: Just like Stratton where didn’t go beyond certain limits. In ACR took far end of Moody Pond and southern boundary…get five miles.
It’s five miles.

Caffry: You were wrong yesterday?

Jeff: I was estimating?

Caffry: Guessing? Winging it?

Jeff: No, estimating.

Caffry: Length of two projects is different?

Jeff: Yes. Not point of slide.

Caffry: Municipally owned golf course adjacent to Foxman property? Some sort of relationship between golf course and people of the resort?

Jeff: There is golf course. Intended to be some sort of relationship between buyers and golf course. Don’t understand full relationship.

Caffry: Vertical drop of Stratton?
Jeff: Stratton 2200 feet. Big Tupper little over half.

Caffry: Stratton is busier?
Jeff: Referring to it as it exists today.

Caffry: No of skier days at Stratton?
Jeff: No.

Caffry: App said 100,000 skier visits?
Jeff: If application says so, then take it.

Caffry: Think Stratton has more than 100,000?

Jeff: Hope it does, because that’s not many.

Caffry: Stratton comparable to Gore.

Jeff: No basis to make that decision.

Caffry: Given ski area larger and skier visits greater, wouldn’t you say Stratton Mt. project is more compact than what applicant proposing for Big Tupper?

Jeff: I don’t know if I can make that quantum leap. On ACR property, slightly larger.

Caffry: Five miles slightly larger than 3 miles?

Jeff: Larger.

Caffry: Expect Stratton to have more housing, given it’s a bigger ski area.

Jeff: No knowledge of that.

Kevin Franke: Many factors. ACR has waterfront access. Different amenities.

Caffry: Properties around ski area like around golf course?

Jeff: True.

Caffry: Referring to exhibit No. 174. (aerial shot of Stratton Mt. layout- ski area, golf course and neighborhoods around them) In speaking only about Stratton Mt. itself. Fair to say, based on scale, all of housing associated with mountain, if within 3200 feet of either ski trail or golf course? Feel free to get out ruler.

Jeff: Fair statement.

Caffry: Refer to Dodson’s alternative #1 Looking at it, it has scale?
Jeff: Yes.
Caffry: Mr. Dodson’s plan, all housing within 3,000 feet or less from ski hill or golf course?
Jeff: Fair statement.

Caffry: Fair to say that Dodson #1 and Stratton Resort have all of their in-project housing within 3,000 feet or less…but all within 3,200 feet of ski area or golf course?

Jeff: True.

Caffry: Aren’t they similar design?

Jeff: Yes. And so is ACR in design and uses. That’s what at contemporary resort.

Franke: Different in another way. Stratton Mt. got permits and was built!

Caffry: Getting back to Mr. Franke .The Stratton and Dodson layouts are pretty much within 3,000 feet.

Franke: Ski hill and golf course.

Caffry: Isn’t ACR plan sprawled out over five miles?

Jeff: Our lots go out that far.

Caffry: Regarding retail at Stratton. You said Mr. Dodson was misleading about showing stores? His picture of Stratton Mt. core showed some retail and such things, when …

Jeff: All I testified was commissioners might think core area was all there was…when in fact it was much more.

Caffry: Did you hear Dodson say his design included same elements as applicant’s design?

Jeff: A similar amount.

Franke: Believe he said there was need for a higher degree of retail.

Caffry: Didn’t say that.

Judge: We’ll review the testimony.

Caffry: Referring back to aerial photo of Stratton. You said some ski in, ski out housing?

Jeff: Yes.

Above base area there are several lots depicted in dark blue. And to left of base area, several clusters. All those are capable of ski in, ski out housing.

Caffry: On ski trail?

Jeff: On ski paths, not all ski trails.
Wide enough for small groomer to get through. Gets you to lift or a trail.
Some are trailside. All capable of leaving house and returning on skis.

Caffry: All of people can ski home?

Jeff: Standard my clients use is 300 to 400 feet from lift is considered marketable as ski in, ski out housing.

Caffry: Yesterday, Mr. Ulasewicz said he defied anyone to find that term ski in, ski out?

Jeff: I don’t. We’ve always said wanted ski in, ski out component of project.

Caffry: Referring to Dodson’s Alternative #1. HD-30. Fair to say significant portion on slide is within 300- 400 feet of base area.

Jeff: Good amount is.

Caffry: Slide 174 aerial shot of Stratton. Don’t have vertical scale, only a horizontal one. How far from top of ski hill to bottom?

Jeff Anthony: 7,000 feet.

Caffry: Testified yesterday ski in ski out going half way up mountain?

Jeff: Testified part up the mountain.

Caffry: You said half way?

Jeff: Don’t recall that.

Caffry: If look at dark blue lots.

Jeff: Roughly half way up mountain.

Franke: Going from base area

Jeff: That’s not housing. Looking at very small photograph.

Franke: About 1,600 feet.

Caffry: 25% of mountain.

Jeff: Sure.

Caffry: Let’s look at West Slopeside development. Built near and along existing trails?

Jeff: True.

Caffry: Upper most limit is approximately 2,000 feet from base of mountain?

Franke: Staff has full size exhibit. Would be helpful.

Ten Minute Break

Judge: Have concern about road closures in area. What if people from Tupper Lake can’t get here. River coming up from 3 and 30. Need to decide if should convene tomorrow. Reserved time for next week. Figured would have snow day, not flood day. Need to decide if wait until next week. Don’t know who is going south tonight.

Tom U: Cancel. Won’t finish No. 3.

Judge: Don’t want to be stranded over weekend.

VanCott: Many going to SL or LP. Problem tomorrow is at Tupper Lake. Send out general alert if can’t get here from Tupper Lake. Other option is to cancel.

Judge: Witnesses coming via Lake Placid.

TU: I do judge but issues #9 and $3 and $4.

Judge: parties coming from Keene, who had difficulty today, may have more difficulty tomorrow.

VanCott: Can send out service e-mail alert. By 9a.m.

Fred Schuller: Call me earlier than that.

Caffry: Staying in LP, no e-mail access.

VanCott: I’ll call you.

VanCott: By 9a.m.our person gets there at 8:30p.m. I’ll double cover it.

Judge: Worked that out. We’ll know tomorrow by 9a.m. if going to convene.

VanCott: Absent closure of Route 3 and 30 at Tupper Lake, proceed as planned.

DEC had airboats out there.

Dennis Zicha: Adjourn for the day.

Judge: People worried about getting home?
If feel need to leave, you should.

During break Jeff Anthony and Kevin Franke asked to do some calculations distance from base of ski area at Big Tupper to top of West Slopeside area.

Caffry: 2000 horizontal feet on map?

Jeff: Yes, we agreed.

Caffry: from base to top of ski lift? 4,700 vertical feet.

Jeff: Agree.

Caffry: West Slopeside more than 40% up ski area?

Kevin: Yes.

Caffry: Housing at Stratton was 20% up ski area?

Kevin: Don’t recall. Have to go back.

Caffry: Comparing % up ski hill of top of housing. Big Tupper is about double.

Kevin: With difference of 600 feet, yes.

Caffry: In raw numbers, West Slopeside farther up mountain?

Kevin: Yes.

Caffry: Don’t have topographic data so can’t make that comparison?

Kevin: Yes.

Caffry: Based on Stratton and Gore, started with dispersed housing and then went to village core?

Jeff: Not aware how Stratton developed.

Caffry: On subject of ski in, ski out housing. Does your plan involve a transport lift?

Jeff: Transport lift goes down in north south direction to East Village.

Caffry: Where is East Village?

TU: Object. Outside scope of rebuttal testimony. Inappropriate. But willing to let him proceed.

Caffry: Goes to claim by witnesses about value of ski in, ski out housing.

Caffry: Point out where lift runs?

Kevin: East Village due south of Cranberry Pond. Crosses over ski tow road.

Caffry: Purpose of lift?

Jeff: To proceed ski in, ski out access.
Kevin: Put into place after mediation as a result East Ridge eliminated. To recoup amount of ski in, ski out housing. Put lift so they would have ski in, ski out.

Kevin: 124 units in East Village.

Caffry: Lift operated by ski company?
Kevin: yes.

Caffry: Mr. Dodson’s plan offered more ski in , ski out housing.

Jeff: If changes made in his plan. Not criticizing his plan for lack of ski in, ski out. Criticizing it in other regards.

Caffry: When testified about Dodson’s alternative. One criticism amount of housing on RM lands west of Read Road.

Jeff: True.

Caffry: Applicant’s design and alternative depends on legality of building across Read Road? Does ACR plan involve using intensity or building opportunities under OIGs building across Read Road.

Kevin: If using Read Road to divide project….Dodson would require much more RM capabilities.

Caffry: APA, under current design, opportunities for OIGs on other side of Read Road.

TU: Off rebuttal testimony.

Caffry: Don’t think so…going off notes yesterday.

Caffry: Both designs would require some shifting of densities from east of Read Road to west of Read Road.

Kevin: Yes, with ability to get additional sites off the site, not within project.

Judge: What I recall, difference 0f 64 lots.

TU: Was objection and no response.

Meave: Witness testifying outside of area of expertise.

Caffry: No one testifying transferring rights outside property.

Caffry: Are some rights potentially available under OIGs not be used?

Kevin: Yes…the numbers are..

Jeff: We consume 80 OIGs…two for ski area equal 82. There are 29 remaining.

Kevin: Mr. Dodson plan, as alternative, specified number of buildings within RM lands. Mr. Dodson, 175 principle buildings on RM lands on ACR property. ACR property has 111 potential building opportunities. So don’t understand question. Comparing two things.

Caffry: Based on your count, your overlays, #176, you counted extra 64 principle buildings in Resource Mgt.

Jeff: Yes. Went on assumption that Mr. Dodson’s buildings were single family and five other bigger buildings. Gave building right to each. Don’t know if he tried to include multi-family units.

Caffry: Mr. Dodson had great camp lots?

Kevin: Believe he did.

Caffry: Do you know which one are potentially great camp lots.

Kevin: There are three clusters on very western portion of the site. Second in area, what we call West Side Expansion and where Cranberry Village, a half dozen.

Caffry: 28 so called great camps in Dodson’s design?

Kevin: I get 29, but one large structure doesn’t have accessory structure next to it.

Caffry: When counted great camps, assume second dot is not principle building…maybe guest house.

Caffry: Looking at Exhibit #176 of Dodson’s plan in schematic of Big Tupper. Delineated between resource manage and moderate intensity. Some on line? I get seven or eight on line?

Kevin: Smaller foot-printed ones or buildings in total.

Caffry: All of red dots.

Kevin: Six that are red and one on line, but not colored red.
Delineation not done at scale of plan. Work not being done at scale of piece of paper.

Caffry :If some of buildings partly over the line. Could move a few feet so not in Resource management.
Kevin: May not be able to, given Mr. Dodson’s tight design. Some potential for adjusting them slightly.

Caffry: Your testimony that if were excess buildings in resource management. No where they could be moved to moderate intensity.

Kevin: Jeff said there are some opportunities to move to moderate intensity and then plan becomes more like ours.

TU: We shouldn’t be responsible for redesigning Mr. Dodson’s plans.

Caffry: In westward end of project. In southwest corner or left side of Mr. Dodson’s schematic, there are number of buildings that your firm colored in red that you believe in RM.

Jeff: True.

Caffry: Couldn’t we move to other moderate intensity lands on project that are less dense. Thereby reducing the number of excess units. Some moderate intensity lands due north of there.

Kevin: Without designing an alternative to this alternative, would need more info to redesign Mr. Dodson’s alternative.

Jeff: In moving 64 units, HD30a clearly shows units in this cluster and this cluster are multi-family. Not allowed in resource management. So would bump up number that will have to be moved.

Caffry: Tupper Lake View South is located in moderate?

Kevin: 18 single family homes. All buildings are in moderate. Portion of lots extend into resource management.

Caffry: In theory, if have excess density in RM, 14 could be moved into there. Correct?

TU: Getting more and more into redesigning Mr. Dodson’s alternative.
It’s troubling and I’ve allowed the latitude. Now it’s part of redesigning.

Judge: What has been established by our discussion that Mr. Dodson’s alternative 1, 2 and 3 would have to be adjusted. Getting into area more speculative. Don’t know why he put it why he did.

Caffry: This didn’t come up until they testified about his designs. Trying to show their answer is wrong.

Judge: Current plan provides for that so….so

Meave: No matter where this testimony is going, our position would be an appropriate person to review the document. Since exhibit existed prior to his testimony. Items weren’t provided to us. Put you on notice that we wish Mr. Dodson to have an opportunity to review these documents, that he should have been given chance to review.

Judge: Question is can some be moved to moderate intensity and could Tupper Lake View be used.

Caffry: Going to continue to explore those issues because believe lot of errors in testimony.

TU: Caffry willing to question integrity of people. My aim is to… and that is basis of my objection.

Judge: You’re looking at principle building options?

Caffry: Yes, based on Mr. Anthony’s claim can’t be moved. No objection to Dodson coming back.

Judge: Allow line of questioning to continue. My concern is that I would prefer the questions relate to areas that will be used by applicant.

Caffry: Question: wouldn’t it be possible to move some of buildings into Tupper Lake View area that is appropriate for 18 houses.

Kevin: Demonstrated that 18-unit subdivision can be situated there. If Dr. Dodson wants to put 18 building there, that’s his prerogative.

Caffry: In Tupper Lake View 18 units?

Kevin: Dodson has three in area and possibly a fourth.

Caffry: 18- minus four?

Jeff: 14.

Caffry: Could find more areas for Mr. Dodson?

Kevin: We could, but changing product mix. Changing to single-family homes. Changing his alternative plan by shifting number and building types. Talking about project design.

Jeff: In terms of numbers, asking if we could move 14 units. Real question is can move 64 units. Problem is much greater. Since HD 30a at last minute. Counted multi-family structures (35 to 40) in RM. That’s isn’t allowed by statute. Bigger problem that just moving things around.

Caffry: Thanks for the speech.

Caffry: Another map you created of Mr. Dodson’s No. 1 that you overlaid wetlands on.

Jeff: Yes. Using CAD technology put his map into our CAD design.

Caffry: Shows areas that won’t work.
Dodson seriously proposing putting buildings in wetlands?

Kevin: Don’t know.

Caffry: Some units relocated to avoid this problem

Jeff: Would have to be moved. Where, I don’t know?

Caffry: Possible some units be eliminated?

Jeff: If that’s his plan.

Caffry: Some of his buildings located on steeper slopes than would be permitted.

Jeff: 89 buildings would have to be located some place.

Caffry: Some of those in RM that already have to be moved.

Kevin: Some in RM, some in moderate intensity.

Caffry: Testified earlier Mr. Anthony, idea that some of units in Mr. Dodson’s conceptual subdivision face the street. Don’t most houses?

Jeff: That’s true.

Caffry: Based on plans by Mr. Dodson, at conceptual level, how can you tell what side the windows are on, where people would be looking out?

Kevin: HD 43 shows a Dodson rendering showing buildings, windows, roofs, parking lots, roads. This was in supplemental pre-file.
His exhibit HD 40 shows house orientation, trees, etc. Very detailed information as to design o f neighborhoods.

Caffry: See windows on all four sides?

Kevin: Some can see two sides of houses. Looking at HD 43, first four single family homes. Shared driveway, front doors facing each other. Views into subdivision. Most of windows will be on front and back of buildings. Most don’t have lot of views out of side of home.

Caffry: More salable if turned 90 degrees?

Jeff: May not fit the market they want developed. Buyers looking for rural experiences. Not a suburban setting.

Kevin: Don’t know many second home owners who want to come to Adirondacks and look out over a parking lot.

Caffry: Did Mark Taber report to visit to Sun Dance.

Jeff: Of course. He explained character of resort. Nothing in writing that were made available to client or anyone else.

Caffry: Notes/

Kevin: Maybe and some photographs.

Caffry: Why weren’t provided in discovery? Reserve that item for later.

Caffry: Did your firm have other documents that relate to Sun Dance?

Jeff: As project proceeded into design, Mr. Foxman had goal to create low key, pastoral design for what he wanted. Told us what he wanted. Mr. Foxman took Mr. Taber to observe it. Told we were designing to very low-keyed base core. Beyond that was in our hands. Didn’t try to copy it. Just used as philosophical method to design core area.

Caffry: Question of exhibit No…. provision for variance from the APA Act?

Jeff: Yes.

Caffry: Could have applied for variance to move units from RM to moderate intensity?

Jeff: Could have.

Caffry: One of you testified about storm water plan. Isn’t it true notice of incomplete application was 20 pages long? Also seven or more of pages relate to storm water management.

Kevin: Don’t have that. Approximately right.

Caffry: Long way from getting approved by DEC!

TU: Outside scope of this rebuttal!

Caffry: These witnesses said had problems with Dodson’s plan citing lack of good storm water plan and that they have better plan.

Kevin: Long ways away from having plan approved? Don’t agree. Met with DEC. Redesigned big part of project to bring in compliance with new design manual. Not long road to make those adjustments.

Caffry: Any of design work yet?

Kevin: In the process of assessing original design to see where changes need to made to bring them into compliance.

Caffry: Changes submitted to this agency?
You’re still designing plan?

TU: DEC application and permitting process not part of this process.

Judge: Pending question is if materials sent to APA staff?

Kevin: Haven’t been prepared yet.

Caffry: Yet willing to address storm water issue without these change.

Kevin: Many are modifications.

Caffry: Just one area of questioning. Stratton Mt. Withdrawn. No further question regarding their rebuttal testimony. Thank you for your patience.

Bayard Read asking questions of Jeff Anthony and Kevin Franke.

Bayard: Earlier today had discussion with attorney for Adirondack Council.. Dodson concept #1. No development piece to Read Road. Then asked number of developed acres east of Read Road.

Kevin: Don’t have that number.

Bayard: How many buildings east of Read Road in current plan?

Kevin: East of Read Road, on map dated June 2010, 47 single family homes on Lake Simond View, and 11 great camps and 8 large great camp lots or 63 units.

Bayard: Agree if had 63 units, it’s a significant area.

Kevin: Great camp lots have three-acre building envelopes. Single-family homes don’t have….

Bayard: To Mr. Anthony. Slide of Stratton Mt. downloaded by Mr. Lawson.

Jeff: Mr. Lawson e-mailed it to us.

Bayard: Purpose to show that construction consisted of more than dense core type. Could you enumerate on diagram. What are there beside dense core?

Jeff: Explained the neighborhoods and types of houses in each.

Bayard: So many of types of units almost same as in your plan. That’s why presented drawing?

Jeff: Exactly. No great camp lots.
Stratton is an example of successful resort that I was familiar with.

Bayard: Mr. Anthony has extensive experience designing ski resorts?

Jeff: Yes.

Bayard: When talked to Mr. Foxman about character. Thought Sun Dance appropriate.

Jeff: Only core area.

Bayard: Where did the great camp lots come from?

Jeff: As part of services to client. Discuss with client what they want. As part of our analysis. Refine that into a project statement. Shake down regulatory controls. What part regulated by what regulations. Develop program statement with Mr. Foxman and his advisors.

Bayard: Idea of great camps came from design talks?

Jeff: Suggested by Mr. Foxman.

Bayard: Another drawing that was up, where you showed Mr. Dodson’s plan and said some of homes impossible because of proximity to wetlands, steep slopes, etc.
Technique is to develop a plan, look at site and agency rules and determine where can situate components?

Jeff: Got it backwards. First step is to understand the site. Then develop program for client and what client wants. Review regulatory controls to see how they apply. Then take (gone to site many times by that point). Look at every source of data can collect. Go through McHargian Analysis. Look at resources, overlay them and look for conflicts. Also look for good sites. Then develop conceptual plan and then go to refinement stage. Have a concept that is 99% doable. Then look at one more time to see if need to change something. Arrive at conceptual plan after lot of homework.

Bayard: Final question about analysis. In siting various houses, what were biological parameters you used?

Judge: This is getting into pre-file testimony and not rebuttal.

Bayard: I will reserve that question.

Dan Plumley for Adirondack Wild: Friends of the Forest Preserve

Dan: Stratton Mt. in Adirondack Park or any other regulated area.

Jeff: In Vermont, subject to their regulations.

Dan: In AP, where have 85% of wilderness in New York State.

Jeff: Whistler and Sun Dance are not.

Dan: Mentioned, McHargian Principles. Would you suggest you used some of these in ACR project.

Jeff: Our basic source of design looks at resources. Look at various resource conditions.

Dan: In your professional experience, is Mr. Dodson schooled in same principles.

Jeff: Yes, reasonable assumption.

Dan: Expect you are aware of his quintessential book by Mr. McHarg.

Jeff: Yes.

Dan: One of Ian McHarg’s principles is to emphasize importance of open space lands?

Jeff: One of his principles.

Dan: He urged for national change in landscape design that protect open space resources.

TU: Object. More appropriate at time of looking at entire issue.

Judge: How does it relate to rebuttal.

Dan: Looking to speaking to rebuttal of Mr. Dodson’s plans.

Judge: Allow, but got to tie up.

Dan: Jeff, would you agree that compact development that protects large tracts of open space in Dodson’s plans, consistent with Ian McHarg’s principles.

Jeff: Style preaches an analytical technique. That’s what we did. Once found suitable area, crafted our land plan. Don’t believe he says you arrive at one conclusion, ie: clustering.

Caffry: Don’t think Jeff answered question.

Dan: Conceptually speaking, don’t Dodson’s proposal demonstrate compact proposals, leaving lots of open space, rather than more sprawling designs.

Kevin: Mr. Plumley asking about intent of Mr. Dodson’s design. Trying to design something commissioners would like. That’s not viable.

Dan: Want Jeff to answer question about compact development, leaving balance of tract undeveloped. Does it offer more benefits for open space than sprawling development?

Jeff: Opinion is that dense clusters in Mr. Dodson’s design are definitely space-conserving techniques. However so dense and so tight, leaves little room for adjusting the elements he’s trying to fit. Some of buildings only 15 feet apart. Premise the clustering is good. But when cluster tightly, limited ability to adapt neighborhoods. Especially here in Adirondacks with not a lot of flat lands, but on steep slopes, wetland areas, etc. That’s why have used more curved roadways. Within clusters saved wetlands, saved steep slopes. Not found in his plan.

Kirk Gagnier: Address panel in general: Is it your understanding that Mr. Dodson’s designs based on premise “dense gridded town center with mix of uses?”

Jeff: His characterization of his core area or venue. Don’t think the retail elements go into the residential area.

Kirk: Mr. Dodson’s concepts based on those in Stratton?

Jeff: Very densely clustered neighborhoods.

Kirk: Familiar with Stratton, said 49 commercial ventures at Stratton Village.

Jeff: 18 shops, 18 restaurants and others
I call them storefronts.

Kirk: Miss Tooher had question. Mr. Franke would you answer?

Kevin: Don’t know if can determine what Miss Tooher said were storefronts.

Kirk: Let’s refer to application re: retail.

Kevin: Lodge and accessory building, restaurant, shops, kiosks, café, artists’ studios, learning center and ski patrol club house. Rec center and health club.

Kirk: In your planning experience, if limited commercial ventures, will people travel to nearby village and patronize.

Kevin: Just look at Lake Placid.
Kirk: Aware no commercial ventures permitted by planning board.

Kevin: From Day 1 applicant didn’t want to compete with resources down town or could exist. Very few things that could be considered storefronts.

Jeff: Base village area supportive of ski experience. Will be restaurant, ski shop for emergency repairs. Won’t have full line of clothing for ski bunnies. If thee is a shop in downtown Tupper, want skiers to go there. Just essential services at base area.

Kirk: Any of Mr. Dodson’s examples involve reopening of closed resort with nearby village?

Jeff: None to my knowledge.

Kirk: Any new ski resort in existing village?

Jeff: No.

Kirk: If new resort opened like Stratton, how would it impact an existing village?

Jeff: Simple economics. If developer constructed a dense core with lots of tenants. He would be on street peddling stores for his resort. Would be in direct competition with stores in Tupper Lake or any village.

Kirk: ACR project designed to enhance community core?

Jeff: It’s those beautiful stores in Mr. Dodson’s photos is what main street Tupper Lake will look like.

Kirk: Talk about connection between Whiteface and Lake Placid?

Kevin: Lake Placid is the host community for Whiteface. Bulk of off-site spending occurs in Lake Placid.

Kirk: Consider Whiteface and Village of Lake Placid successful?
Kevin: I do.

Kirk: please put up exhibit OIG No.7. Focus our attention on green dotted boundary line that demarks two land use areas. Where obtained line?

Kevin: Available from GIS. Public information.

Kirk: Take a look at HD 30. On that exhibit is there a line that demarcates two zones.

Jeff: No.
Publicly available. But on all our application materials.

Kirk: Do you recall about conversion of files on CAD files. Do you recall if he was working with CAD files. Hard copies you provided demarcates the two zones.

Kevin: This is Mr. Dodson’s exhibit No.29. If you look in lower left of MP 0, clearly evident is boundary between RM and moderate intensity.

Kirk: When prepare plans, would you carry forward lines into all drawings.

Kevin: Yes.

TU object to any further questions from Mr. Caffry.

Caffry: Mr. Gagnier asked some questions I need to know more on. I feel I should have received more information on discovery.
Mr. Gagnier asked about presence of 49 storefronts on main street. Didn’t Mr. Dodson testify that would be very similar to ACR proposal?

TU: Earlier in Mr. Caffry cross-examination, you were asked to measure length of resort area on our plans. Five miles?

Kevin: Yes.

TU: Did include Lake Simond and number of private residences that are not part of ACR. If eliminate all those, what kind of measurement?

Caffry: Object. Measuring as crow flies, not intermittent distances. Question based on his characterization.

Kirk: My recollection was measuring development at Stratton. Lake was not part of development area. When he spoke of development map at Stratton. Can’t have it both ways.

Caffry: All kinds of ways we could have measured.

Judge: Allow one more measurement.

Caffry: Want redirect.

Kevin: Total length was 7.2 miles. If exclude Lake Simond, distance to southwest corner to northeast corner distance is .85 miles less. Or 4.53 miles.

Going into re-cross examination

Five minute break.

Caffry: No matter how measured, pretty much straight line?

Jeff: Yes.

Caffry: When measured ACR property?

Jeff: Straight line.

Caffry: As long as looking at alternate measurements. ACR property kind of a dog leg?

Jeff: Yes.

Caffry: If were to measure going around Lake Simond. I would get 12 miles?

Kevin: 7.3 miles. 38,000 feet.

Another five minutes spent measuring.

Caffry: Let me ask you. Scale on my map is one inch is 2,000 feet. Significantly larger than where housing on Stratton is spread. Approx. 3 miles?
Hypothetically speaking: 7.3 significantly greater than 3?

TU: Object. Already in record.

Caffry: Like their opinion.

Jeff: Could make a dog leg at Stratton too.

Meave Tooher. Distance from ski lodge to furthest great camp lot. Approx. 10 miles

Kevin: Can’t do quickly. Of ten miles, no idea.
Have to measure all the lengths of road.

Kirk: Road distance never issue at Stratton.

Judge: I’ll not allow question.

Adjourned for day about 5p.m.

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