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Adjudicatory Hearing Round II – Day Four

May 1, 2011 by · Leave a Comment 

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By Dan McClelland, Tupper Lake Free Press

Round II Day Four of the Adjudicatory Hearings in Ray Brook at APA Headquarters. Friday, April 29, 2011

Most of the same parties present that have been present all week.

Nearly a half hour devote to questions about reintroduction of Harry Dodson as witness and his ability to see the documents of recent days before he testifies again.

Dennis Zicha: Like it to be noted that exhibits not distributed to all parties. Do not have copy and I’ve been here all week.

Adirondack Wild also supports return of Mr. Dodson.

Paul VanCott (attorney for APA)

Tom Ulasewicz (TU): Applicant opposes. On April 21, sent copy to all parties. Re: Rebuttal testimony: “This rebuttal testimony will contain exhibits, alternative designs of Mr. Dodson and overlays of Mr. Dodson’s plan on site’s base map. Pictures of Stratton and Whistler. Due to time constraints. More than enough testimony to indicate when formulated. Didn’t get Mr. Dodson’s exhibits until he came to table.

Filing our rebuttal information when Jeff gave them to me on Monday. Mr. Dodson had not completed his testimony, or rebuttal and cross examination not completed. Anything I would have given you was premature.

Volumes of testimony on alternatives. Great deal more by end of Kretser and Glennon.

Rebuttal evidence shall be limited to evidence presented in direct case by parties. Does not say anything about sir-rebuttal. Applicant objects to motion.

Paul Van Cott: Staff have no opinion why exhibits developed where not provided to parties in advance. Lot for all parties to be dealing with. Did look back at your instructions regarding rebuttal (March 30, 2011) on page 2 where talked about notice of rebuttal, identifying witnesses and exhibits. Saw through our testimony yesterday, two of exhibits developed on April 18.
As Mr. Anthony testified, exhibits available April 25. Further testified through his notes. Appropriate for applicant to share the exhibits relating to rebuttal testimony that had been prepared. Not in support of adding extra layers. Record would benefit is Mr. Dodson was here and could examine the exhibits. Staff support motion by Adirondack Council.

TU: One further comment. To clarify. April 18 date is time we took aerial photo. That’s what referring to. Downloaded aerial photo. No idea what going to do with it.

Judge: Miss Tooher, how would address applicant’s contention that rebuttal limited to direct case of parties?

Meave Tooher: Purpose of rebuttal evidence….just want Mr. Dodson’s information complete for the record.

Judge: My concern about allowing Mr. Dodson to return has to do with keeping on schedule. Rule that he not be permitted (I think). Parties can appeal and if directed by commissioners can always reconvene the hearing. (I think)

Judge: In response to Meave Tooher request to extend proceedings.
Could we include in closing arguments?

TU: Like to keep May 9 date for comments. Don’t mind inserting another date.

Judge: We provided for that.

TU: Opposed to changes in dates.

John Caffry: Problem with May 9 is we all have May 11 pre-file deadline. Don’t see any harm in putting it off so after deadline for pre-file. Put somewhere after May 11.

TU: If put it off for week, that’s okay.

VanCott: Agree to put off for week.

Judge: Agreement to May 16. Notice of rebuttal due May 19. As this week has shown, really seems to me perhaps we would be out of woods if said the 23rd. Comments on summary and draft permit. Don’t want to deal with the motions I’ve had to deal with this week. Appreciate your work…it’s extensive. Big hearing…lot to review. Think parties would deal with delay of two weeks.
We’ve devoted nearly an hour to motions. If could limit them, that would be better. If extend May 9 by two weeks, propose to extend June 9 by two weeks.

TU: How about May 27 instead of 20th.

Judge: May be in hearing.

Caffry: Move deadline to 23rd. Any further discussion would be via briefs. Doesn’t prevent parties from negotiating.

VanCott: Love benefit to all parties, before do the briefs.

Judge: Responses due before the brief.

TU: Stick with one week delay. Ninth to 16. 18 to 25.

Judge: Not going to work.
TU: Willing to go along with John Caffry’s suggestion. All file comments to your documents on 23rd.

Caffry: Would be helpful.

Judge: Will allow reply to closing briefs.
TU: Discretionary.

Judge: Comments May 23, responses would be via closing brief.

VanCott: Mr. Spada said DOT closed one lane of Route 3 &30. Going to close second lane soon. There is an alternative going to St. Regis Falls. Longer route. In case parties want to discuss.

Bob Fuller: S curve towards Potsdam also out.

Judge: (to mayor): Your honor do you need to get back to Tupper Lake.

Mayor: No but…

Back on Record

Judge: during off record discussion, modify schedule: Comments on summary, due May 23. Response to comments about summary to deadline for closing briefs and that deadline will be available at later time. Try to send you all notices Monday or sometime next week.

Reintroduction of Mark Sengenberger (MS) as witness. APA contract employee and former deputy director of regulatory program at the agency who has been the principle overseer of this project for the APA.

Caffry: Before you are several exhibits. Briefly explain.

MS: Letters to me from agency staff and third one is staff draft that I prepared, but not for public distribution. Findings about conceptual application. Documents and letters sent to me and in response to a report Brian Mann had made on NCPR.

Caffry: Part of record. So move admission into record.

Don Dew: What is the number of the memo from Mr. Sengenberger, your honor?

Judge: Was part of administrative component of application.

Don Dew: John Quinn is a member of a hunting club that is affected by the project. (Mr. Quinn authored one of letters to Mr. Sengenburger)

Judge: So you object to letter 133?

Don Dew Jr.: Yes, your honor, on the grounds of conflict of interest.

Caffry: Any question of conflict of interest raised by Mr. Dew…
VanCott: Goes to weight of exhibit.
Judge: 131 Staff Draft, two pages, series of assumptions,
132 : memo from staff member to Mark re: low density development.
133: from Mr. Quinn to Mark (2005) regarding discussions of subdivisions (and their impact on lands zoned resource management).

Judge: Any other objections. Receiving 131 and 132. With respect to 133 I’m receiving. Your objection is noted. Goes to weight that should assigned to that. Can do that in your closing arguments. You could suggest some weight or no weight, because of the apparent conflict of interest.

Caffry: Re 132 exhibit. Memo to you from Sunita Halasz.
MS: Worked in resource analysis section. A scientist. No longer with APA. I sat down with her before I drafted my memo.

Caffry: Page 2 Appears to be a quote from scientific reference. “In a cluster dev. Nearby houses will overlap…” Did you ask applicant to design this concept in concept discussed with Sunita.

MS: I could go through notice of incompletion. Many references to natural habitat. Looked at impact zones, using Sunita’s process.

Caffry: All of discussion with staff went into the production of map, you said. Was your document ever presented to the applicant?

MS: Don’t know..but applicants were present when I presented it to agency board.

Caffry: Did applicant do this type of analysis?
MS: No. Asked them to do habitat assessment analysis (during our discussions with them).

MS: One of problems in process has been lack of understanding between APA and applicant about what is a habitat assessment analysis is. Agency didn’t provide guidelines what that should be at first.

Caffry: Despite initial lack of understanding of what you wanted to see. Did have extensive discussions about what you wanted?
MS: Yes.
MS: In end you had satisfactorily explained, but did not get the information you requested?

Caffry: Turning to exhibit 133.

MS: (answering Caffry’s questions about it) It is a memo from John Quinn in 2005. John is also retired…last May. He was with agency for 30 years, more or less. Played no role in the application. Tupper Lake resident. One of reasons he wasn’t assigned to work on application.

Caffry: Memo in response to your memo?
MS: Possibly. Yes it was. It was part of ongoing dialogue occurring between agency staff.

Caffry: Re Mr. Dew’s conflict of interest claim, anywhere in memo about ACR?

MS: No. Agree it was broader subject areas addressed.

Caffry: Turning to exhibit 131 that you wrote. Staff draft 2005. Done before application was filed?

MS: Yes. Distributed within regulatory programs division. At first to staff on review team.

Caffry: Is this in your mind as you prepared. Does it bear any relationship to developing material to considering resource management policy?

MS: Yes. Clustering on small areas, how proper development should be interpreted.
Considerable discussion about terms and what they mean. Skip Outcault (now retired, but was project review office on ACR project) and I have different opinion on how to interpret. Everyone’s comfortable with sharing their opinions and getting feedback. He and I disagreed on the interpretation.
Dr. Russell (who testified earlier this week) said not good guidance on that.

Meave: Objection your honor.

Caffry: Question of interpreting statute?

MS: It’s the job of agency to interpret the statute. I was delegated the authority to interpret it.

Caffry: Following assumptions in findings. Whose assumptions?

MS: Mine, not other members of staff.

Caffry: Conclusions?

MS: My personal conclusions.
Document completed before application was filed.

Caffry: Looking at first bullet point. Applicant said 25 great camp lots are critical (to financial success of ACR project). How many great camp lots in total?
MS: 39…
Caffry: 14 more.

MS: Take your word on that.

Caffry: Did (the applicant) provide any real estate documents confirming that?
TU: Question.
Caffry: Still talking about 25 great camp lots.

Five minute break

Judge: Come to order. Back on record.

John Caffry: Mr. Sengenberger. Did you speak to Mr. Anthony?

TU: Objection.
MS: Yes I did.
Caffry: Did you discuss testimony?
Objection: Miss Tooher saw him talking to Mr. Anthony.

Judge: (telling everyone to stop bickering) appreciate everyone’s cooperation. We need to get through this.

Caffry: When chatting with Mr. Anthony. What was subject matter?

MS: Didn’t discuss anything about my testimony.

Caffry: Back to question with regards to first bullet point. When you wrote the memo in 2005, you said project sponsors had stated that great camp lots are critical. Any documentation?

MS: Maybe in something I wrote to Skip Outcalt…often contains assumptions. Based on conceptual application materials.

Caffry : Since that time applicant provided documentation?
MS: Sponsor made statements about value of great camp lots. Statements were made by private sponsor’s team.

Caffry: Re: 25 lots. May not be subdivided? Anything in application that stated that these lots will not be subdivided?

MS: Believe they have agreed to deed restrict them.

Caffry: Tree clearing? Comprehensive forest management plan, it states. Does it include forest management plan?

MS: No.

Caffry: Top of page 2, first bullet point. Statement in 2005 “property last logged about 30 years ago, not currently in timber management plan. Since 2005, has there been logging?

MS: Yes.

Caffry: Third bullet point refers to habitat of several special species. Property around great camps do not contain habitat for certain specialized species. Since then a comprehensive assessment?

MS: There has not been, I believe. There have been discussions.

Caffry: No unique habitat? Here when we had a discussion of vernal pools? Important areas?

MS: Yes. There has not been an assessment of vernal pools.

Caffry: With regard to memo, last bullet point. Is it conclusion? Project appears to be really consistent, at conceptual stage. Just initial conceptual conclusion by you?

Don Dew Jr.: Like to withdraw my questions at this point.

Jon Kopp: How much acreage of forests in Adirondacks?

MS: 2.6 million acres.

JK: In lands zoned resource management?
MS: 1.3 million acres.

JK: Describe vernal pools?

MS: Can’t in biological terms, but I’ll try. Vernal pools are found in wetlands or in depressions on uplands. May or may not be permanent.

JK: Size requirement?

MS: No.

JK: Mud puddle?

MS: Wouldn’t say mud puddle. Been on some site where pools could contain many species of frogs, etc.

JK: Vernal pools are places to breed mosquitoes?

MS: Believe they could.

Paul VanCott (redirect): I have some copies for parties of exhibits.
Letter from MS to Kevin Franke.
Second one 2006 letter from Ulasewicz to MS
Exhibits 19 and 26.

Judge: Van Cott offered exhibits he would like to use during his redirect.

VanCott: Some of notes from letters of incomplete application. March 23, 2006 letter to LA Group. Attached page 29 which is page Mr. Sengenberger testified to. MS letter to Kevin Franke (2006). Responding letter from TU to MS. Attached portion of information provided with 2006 letter. Exhibit 23 Major project notice (2006). Exhibit 50 Memo from MS (Jan. 2007) to Richard Lefebvre, executive director APA. Agency meeting 2007 minutes. Letter from Richard Lefebvre (Feb. 2007). Move these into admission into record.

Judge: Objections?


VanCott: during cross-examination. Asked about deficiencies in application, particularly wildlife habitat. Would you like to add anything?

MS: Thought it would be useful to recap how agency goes about determining that applications are complete where there may be information lacking and how agency deals with that. Agency staff reviewed initial application which has some habitat info including presence of wetlands. Limited species list. In notice of incomplete, asked for functional assessment of flora and fauna on site… including info on Bicknell’s Thrush (high elevation bird). On March 23 sent second notice of incomplete application. We said do a functional assessment study. As moved forward, we requested some clarifying info to proceed with…staff indicated need for wildlife functional assessment done for type 1 and 2 lands. Asked for expansion to include 3 and 4 lands, including the marina.

Caffry: Clarify those types of lands?

MS: Can’t recall in detail. Lands set aside, some to be developed, some lands at ski center…can’t recall specifics.
In 2006, we received exhibit 39 which included wildlife functional assessment study and some information related to Glennon-Kretser paper about wildlife study. Exhibit 43 is the completion of this. At time of completion, deficiencies in some of materials in application. Nevertheless agency determined the application complete. That started the time clock. So necessary for staff to propose to board and present to board info in our recommendation to proceed to adjudicatory hearing. It was their decision to do that.
Exhibit 50, staff made recommendation to go to adj. hearing.
Wildlife functional assessment failed to delineate all species, vernal pools, etc. So difficult to determine impact, and biological (details) of site. Habitat concerns were issue for staff and for consideration by board. Agency board received power point presentation by staff and deliberated and decided to send the project to adjudicatory hearing.
In Issue No. 1 (natural resource protection and do great camp lots contain substantial acreage?) One think board did not do is to direct the applicant to complete a functional assessment review. That hasn’t been done. One of ways staff recommends sending project to an adjudicatory hearing is possibility that information presented at public hearings would benefit the commissioners’ review. Board didn’t require a functional assessment (in its ten issues for adjudication). Parties in this hearing have provided information that will inform the board about the project.
Came away from discussion of vernal pools, with some particular information. He said majority of vernal pools would be located in the wetlands that have been delineated in the application.

Some of that information has become part of the record and staff will have to consider that. Later information from Dr. (Phyllis) Thompson, not yet admitted, on bird species. More information from Adirondack Council on aquatic species. That is exactly kind of information the commissioners would like to hear about. Where does that leaves staff? Staff needs to evaluate all of materials received and take those materials in how it informs the commissioners. Assimilate, understand and then apply it to the project design. That’s a complex, often difficult process.

Staff’s role is to prepare potential recommendations for consideration by the agency. Task yet to be performed. Staff hasn’t formed any final decisions yet, relative to adverse impacts.

Van Cott: Not in consultation with agency board at this time?
MS: Absolutely not. Agency board will make recommendation based on the totality of the record. Whether approved, approved with conditions or denied. Or send back to hearing.

VanCott: Exhibit is a map from updated plan set.
MS: Drawing RW 2010 entitled recreation and open space plan.
VanCott: describe?
MS: Site plan for overall project. Identifies three types of open space on property. Type 1 open space are great camp lots. Type 2- recreational open space around ski area Type 3- lands retained by project sponsor.
Type 1 (great camp lots), Type 2 lands relate to ski area land, Type 3: retained by sponsor.
Van Cott: Anything to add. Like how open space reviewed by staff and protection of open space.
MS: Open space is somewhat difficult term for people to understand. Staff is informed by info in Act. There is a chapter on open space. Part of Colleen Parker’s pre-file testimony on Issue No. 1 covers that. “Open space includes several kinds of areas…in virtually natural state, including forests, wetlands, streams, fields, mountains and plains. Also beaches, golf courses, etc. and three agricultural areas. Also show how projects can be defined to protect open spaces.
In Type 1, applicant has limited development to overall 3-acre building envelope. Even in three acres, there’s not a tendency to clear all of land. Agency asked that great camp lots should be deed restricted. Most area will remain largely forested.
Regarding Type 2 for ski area: Trails will appear essentially as they do now…no other protection.
Type 3 lands: Developer has proposed no developer on those lands.

VanCott: Discussion about alternatives?
MS: There have been some discussions about alternatives. How agency reviews and assesses alternatives. Typically on large scale projects often assessed in conceptual stage. Occur as consultation prior to submittal of formal application. Often on broad expanse of how project may be developed. Developers include types of elements and their purpose. Done at conceptual level. Then get plans on site level…identify various components of project. Building locations, etc. Also get into components of design. For example, should there be an on-site septic system or should sewage be connected municipal services? Goes from overall conceptual layout to more specific components, position of driveway, etc. As proceeded through this application and in incompletion notices, you’ll see questions relating to size of buildings and size of lots, and questions about infrastructure. That’s been part of an ongoing dialogue throughout the process. One of issues staff dealt with, what level of detail is required for analysis of alternatives. What requirements and expectations does agency place on applicants? Concern for number of reasons: level of detail, type of supporting info that goes into alternative analysis. Does it need marketing analysis?
Agency cognizant of cost associated with exploring all alternatives and their different analyses. Any discussion of alternatives tends to get refined in the multiple, dozens of questions that staff asks at all steps of process. Record will show those questions have been asked.
I point that out in the context of this process. Commissioners sent project to hearing. First issue: …are there alternatives and impacts on those resources.” Concern agency staff had in trying to evaluate alternatives at this stage of project: What level of analysis should be provided.
As we saw in Mr. Dodson’s information. Issue of alternatives is complicated. When they are proposed that have lot of ramifications, when talking about 3 dimensional site, when look at alternatives, it is important to have as much info as possible. To see if feasible. Not to say alternatives provided by Adirondack Council are inappropriate. May be opportunity to move some of great camp lots and move them out of resource management. We have discussions about alternatives and significant issues relate to alternatives…and the analyses take significant time to develop. That’s where we are on that issue.

VanCott: You testified… about elimination of great camp lots?

MS: Shouldn’t have brought a conclusion of what board may do. At what point do conditions materially affect the project. Materially is word in APA Act…in regard to amendments to a project. We have to interpret it on behalf of the agency. Are there material changes that would fundamentally change project and it’s ability to go forward? In the end it’s up to agency to impose conditions they choose and to assess what impact they would have on ability of project to move forward.

VanCott: Discuss how your pre-file testimony was developed.

MS: I wrote my supplemental pre-file. I worked with staff attorney on formulating questions, but I accept it as my testimony.

Lunch break

Caffry: True to say “open space” doesn’t mean…where buildings built in open space there would be also development considerations?

MS: Yes.

Caffry: Plan to have deed restrictions for eight largest great camp lots?

MS: Yes

Caffry: Proposal for other 28 lots? Could agency put deed restrictions there?

MS: Hypothetically yes.

Caffry: Re: alternatives. Agree the fact that we’re still talking about them was important issue?

MS: Correct.

Caffry: Testified earlier about Dodson’s alternative designs. Expect if a design by Dodson considered as concept plan, then further work by staff?

MS: Expect would come in closer to agency regulations.

Caffry: Dodson not an applicant?

MS: No, nor is he representing one.

Meave Tooher: Did you prepare recommendations for the agency? Did you require as much info as possible?

MS: Yes

The publisher of the hometown weekly had to leave the hearing proceedings to check on flooding conditions on River Road. As it turns out he was there the rest of the afternoon to try to mitigate damage to his property by the quickly rising water.

This set of hearings continues next week. We will, unfortunately, be unable to cover them to provide these transcripts.

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