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Adjudicatory Hearing Round III – Day Five

June 7, 2011 by · Leave a Comment 

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By Dan McClelland, Tupper Lake Free Press

Round III of Adjudicatory Hearings  Day Five  Tuesday, June 7, 2011

Present: Many of the same players. Attorney Meave Tooher joined Brian Houseal, Zach White, Fast Freddie Schuller, who brings the coffee and town-furnished donuts with assistance Jon Kopp, Heidi Kretser of the Wildlife Conservation Society, Jack Delehanty, Town Supervisor Roger Amell, Kevin Franke, David Norden, witness, Michael Klemmens, Kevin Jones, No one from Village of Tupper Lake yet, Dave Gibson announced he was from Protect, actually Adirondack Wild, Mr. and Mrs. Jerrier Haddad, two members of the board of Protect the Adirondacks, Carol Richer, Dan McClelland, Dennis Zicha. Dan Plumley of Adirondack Wild

Dr. Michael Klemens sworn in:

David Gibson, Dan Plumley of Adirondack Wild, he is their witness
Supplement sent to parties.
Two changes, typos

Gibson: What is contest of supplement in relationship to testimony.

Klemmens: Pre-file focused on lack of scientific data. One night, raining.

Gibson: Motion to enter supplement into recordJ

Jim Frenette Jr. stopped by.

Paul VanCott, attorney for APA: Our biologist interested in your testimony.
In your original testimony, talked about buffers…statutory and clinical…re wildlife habitat. Talked about larger buffer.

K: Regulatory buffer 100 feet around. Talked about larger habitat to sustain species.

Tom Ulasewicz: Isn’t testimony limited to supplemental pre-file.

Judge: Yes it is.

VanCott: Identified species on site. If APA were to approve project as proposed, do you have any thoughts about studies or measures the agency might consider that would be relative to project.

Dr. K: Don’t know critical areas on site and then go out and approve permit and then find critical sites. Better to find areas first and design development that protects those areas by avoiding. If approve something, may end up having to redo half of it. Since no biological info.

VanCott: If agency were to approve project and make conditions that some lack of data and good data regarding wetlands, etc., if agency wanted developer to make studies…what kind to mitigate some of impacts.

Dr. Klemens is an expert on salamander and tree frogs who testified earlier.
Why does a salamander cross the road?
A: Because he wants to.
What happens if it encounters a truck on the road.
A: It gets squished.

Judge: Beyond scope of supplement.
Not allow.
Trying to be as focused as we can today.

Tom Ulasewicz: On May 18 I requested documents of Adirondack Wild about Dr. K’s supplemental testimony. Was provided. Was distributed to all parties and to judge. Like to move all documents into record. Broken down into five or six categories. Put all in one exhibit number.

Judge: Fine with me to group together.

Gibson of Adirondack Wild: scanned what scanable.

Tom U: e-mail June 6 to all parties with Dr. K’s supplemental testimony. June 2 cover letter of April 25 comments.

B.G Read of Birchery Camp arrives with box of documents.

Tom U: Notes from Dr. K done in motel room after field work.

Gibson: Essentially four pages

Gibson: Ten pages of active findings, including four pages of “scribblings,” as he describes them.

John Moore of Little Wolf Lake popped in. Jim Lanthier, roving photographer is back.

Judge: Marked as exhibits.

Trustee Leon LeBlanc arrived.

Dr. K: accompanied on field trip by Elaine Yabroudy.

Tom U: Going to photographs provided by applicant.

Dr. K: Can’t identify who is in photograph. Might be me.

Tom U: second photo?

Dr. K: Me on left handling a salamander. Dan Plumley, others, can’t see faces.

Tom U: How traverse area?

Dr.. K: parked car and walked back and forth. Behind Cranberry Pond area.

Tom U: Meet with other parties on site?

Dr. K: Just people who drove by.

Tom U: Where did you stay?

Dr. K: Stayed at Best Western in Saranac Lake.

Tom U: Mr. Gibson’s letter said might be notes, with specimens of amphibian species. Did take off site?

Dr. K: Yes. Going to be displayed at Museum of Natural History.

Tom U: Permission to go on land?

Dr. K: permission to go on Read Road by BG Read. Others public roads.

Tom U: In “scribbled” field notes first page, looks like 1:30p.m. went to Read Camp.

Dr. K: at camp at 1:30p.m. The Birchery Camp right above Lake Simond. Caretaker met me and showed us around. Had off road vehicle. Met us at gate.

Tom U: Any research on the camp property…on Read Camp.

Dr. K: Did one sample. Small tributary to Little Simond behind Read Camp.

Tom U: from field notes also went to golf course?

Dr. K: Went past golf course…the road behind at night. Started there and worked farther up.

Tom U: Went off road?

Dr. K: No, all entities collected off public roads.

Tom U: Saw female frog near golf course?

Dr. K: No just off road…very careful to stay on the road.

Tom U: In field notes, fourth page said you went uphill from Cranberry marsh. Taken off road?

Dr. K: No, road above Cranberry goes up the hill.

Tom U: Saw toad.

Dr. K: Saw on the road. Species noted DOR: Dead on road….lots of laughter.

Tom U: 9:40pm Cranberry Pond marsh…
Did you go off road into marsh.

Dr. K: It was moving across the road to the Cranberry Pond marsh.

Tom U: In your reconnaissance you said went to CP marsh where saw one frog and five yellow salamanders. On road?

Dr. K: Yes.

Tom U: How get to vernal pool?

Dr. K: Audio observation. Could hear them from the road.

Tom U: Based on pre-filed testimony, pages 1 to 2. Say encountered 11 species of amphibians?

Dr. K: Yes.

Tom U: Of 11 species, four general types…salamanders, knutes, frogs, etc.

Dr. K: Yes
Photo 6 is the spring peeper.

Tom U: Use term vernal field work.

Dr. K: Means daily.

Tom U: Did Read Road day, Simond Pond and Ski Tow Road at night?

Dr. K: Yes.

Tom U: In field notes, reconnaissance may have taken 16 hours….8a.m. to midnight?

Dr. K: My scribbled notes…begins 47 degrees and a café number. Nothing to do with this thing.

Tom U: Time nothing to do with this reconnaissance?

Dr. K: Nothing to do with this.

Dr. K: Spent more time on Read property looking at other wetlands…but not part of this project.

Tom U: How many hours nighttime and day time?

Dr. K: Started at 11a.m. to 1:30p.m. on Read property.

Dr. K: Three streams sampled before got to Read camp. All sampled at road crossing.

Tom U: How many stream crossings?

Dr. K: Three.

Tom U: Three streams identified?

Dr. K: Yes. Three…two small ones.

Tom U: In conclusion to supplemental, you call for comprehensive amphibian study of site which would enable prioritization of areas needed for amphibian survival?

Dr. K: Yes.

Tom U: In NYS we have wetlands statute which protects natural features, stream protection requirements, extensive buffer areas, set backs from waterways, building density…this is not enough to protect amphibian population at site?

Dr. K: Absolutely…I’ve read portions of APA act.

Tom U: Why did you do rapid amphibian assessment?

Dr. K: Was here…thought it would be helpful to add to the information…quite surprised at abundance and number we found.

Tom U: In APA regulations, section 574.5 talked about development considerations. That section says further definitions of development considerations. Then list of considerations. Go to habitat of rare or endangered species. See any rare or endangered species.

Dr. K: No. Not important if endangered or rare, but their contributions of their vitality of the land. They are the keystone species.

Tom U: Trying to fit your concerns into regulatory construct that my client has to follow.

John Caffry: Object. Other development considerations.

Tom U: Didn’t know asking questions

Judge: Don’t need a speech.

Tom U: Between March 15 and May 15 each year, least attractive time for people to come here to recreate?

Tom U: Can’t put myself in that position. If like frogs and salamanders would be all over the place.

Tom U: Let’s talk about people who frequent resorts.

Objection by Meave Tooher, attorney for the Adirondack Council.

Judge: Not qualified to speak to that…being offered as biology witness.

Tom U: Familiar with wildlife friendly construction techniques?

Dr. K: First step is avoidance. No info to do any avoidance. Can’t create mitigation until avoidance… also include minimization.
Absent info of where these animals are…avoidance part is the most important.
First step is avoidance…thought I’d mention. To do credible job of amphibian protection, first need the information.
Mitigation is complex and expensive. Efficacy is not 100% proven. When start funneling amphibians under road.. Predators find those places to feed on them

Tom U: Relating to wildlife protection measures, stream crossing techniques. Know if proposed?

Dr. K: Don’t know. I’ve designed such things.

Tom U: How about bottomless arch culvert…are they good at wildlife protection measures. Do you know in this project?

Dr. K: Don’t know.

Tom U: Lake of curbs as wildlife protection measure?
Know of any curbs.

Dr. K: Don’t imagine there are many curbs.

Tom U: When state enacted APA Act in 1973.

Caffry: Dr. Klemmens not expert on APA act.

Judge: What trying to get at.

Tom U: Deals with wildlife and natural resources…like to read in.

Judge: Beyond scope of his pre-filed testimony.

Meave Tooher of Adirondack Council had questions:

Meave: Not a scientist, couple of questions.
Testimony concern some work on April 25. In original testimony spoke about assessments and timing of assessment, could be conducted during limited periods of time.

Dr. K: April 25 assessment…warming trend…the big night when all move. Temperatures warming, followed by heavy penetrating rain which stimulates the migration. Males go first, then females…staged sequence.

Meave: Value of Big Night?

Dr. K: Get a great snap shot of what is moving around and where moving to, which is as important.

Meave: Similar study now…similar snap shot?

Dr. K: Different species…wouldn’t get big spotted salamanders…get more toads, frogs, etc.

Dr. K: Can extend study of vernal pools, by doing larval studies. Big night was ideal to study and gather information. I could go off property and do hundrerd transets and who knows what you would get.
If had team of biologists, could get amphibians wrapped up in one or two seasons. Clear picture with two-year study. One year would get a lot of info.

Meave: When next time you could get this valuable information?

Dr. K: Next time would be next spring…but could still get lot of information through summer.

Meave: Could studies be done after development begins?

Tom U: Objection..outside of scope of testimony.

Judge: It is…sustained.

Meave: April 25 study one of things looking at was migration patterns of amphibians?

K: Yes.
Traffic impacts migration. Whole time doing study…two or three cars came by…could see the number of DORs. Dead amphibians on road. Also impediments of movement impedes migration. Development creates lot of hazards. Like going through obstacle course.

Meave: Do design patterns impact migration.

Dr. K: Conservation designs have tremendous impact, avoiding a lot of pitfalls these animals go through.

Meave: Mr. U asked you about mitigation measures and you responded no ability to evaluate because no information to evaluate?

Dr. K: Yes.

Map 208. Arrows with amphibian routes…four arrows coming off Sugarloaf. Amphibians moving down through Sugarloaf East subdivision. Have opportunity to redesign..because major amphibian path impacted.

Meave: Lake Simond Road, similar situation?

Dr. K: Ski tow road incredibly rich cuz cut between wetland area and upland area. Lake Simond Road didn’t present same opportunities. Getting edge of things on Lake Simond Road. In heart of it on Ski Tow Road.

Meave: Under questions by Tom U. asked you about audio tracking…said good technique.

Dr. K: Natural way for frog populations. For eg: Bull frogs calling females in wetland to breed. Can deduce wood frogs calling off road, likely wetland there and frogs breeding there. Accepted by scientists.
To detect specific species of calls…have distinct calls.
This was a breeding chorus.

Meave: Accepted techniques for evaluating species?

Dr. K: yes. All sorts…stream surveys, frog calls important.

Dan Mecklenburg arrived.

Meave: Expand techniques?

Tom U: Objection. Getting off track.

Judge: Let’s get list first.

Dr. K: Debris turning (lift up log and look what’s under…100 to 200 views per hour. Use it for snakes and amphibians. Used along edge of Read Road. I also used audio surveys and transects at night. Others I could have used.

Meave: Tom U. asked you about various regulatory structures. Said not sufficient to protect amphibians?

Dr. K: Standard regs not sufficient because of immense amount of uplands amphibians use. Sufficent wetland regulations.

Meave: Protection or rare and endangered.

Dr. K: Important part of food change.

Meave: Asked by Tom U. about rare species, and if your inventory included those. Correct?

Dr. K: Asked me if endangered and threatened. Haven’t found any but could well be some, just haven’t found any. Amphibians basis of food chain.

Judge: Are amphibians part of food chain related to rare and endangered species.

Tom U: Object. No rare or endangered species found on site by Dr. K.

Judge: Would rare and endangered species feed on amphibians.

Yes: Work way through whole food chain and do feed rare and endangered species.

Meave: Do eagles feed on amphibians.

Dr. K: possibly.

Meave: Trying to bring out in his testimony, that agree that consideration of rare species is a value. Amphibians in food chain is also a value.

Judge: We’ve established that.

Meave: In April 25 studies, very limited sites?

Dr. K: Very limited…along roads.

Meave: Amphibians prefer wetter environs?

Dr. K: Depends on species…some in wetlands, some in uplands. Presence of water important.

Meave: In your opinion, more species if went beyond road site?

Dr. K: How far?…100 feet, probably not. To a wetland, possibility.

John Caffry from Protect the Adirondacks….

Caffry: Rare versus threatened species. Didn’t find any? Any rare?

Dr. K: Spring salamander is rare species…judged by its frequency of occurrence. Did some research and found not widespread. Not listed as special concern, many in Catskills, by NYS.

Caffry: Regionally rare for Adks?

Dr. K: Yes…regionally rare for Adirondacks.

Caffry: Testify about presence of vernal pool by listening to calling of frogs. If allowed to go on site, could you identify more vernal pools?

Dr. K: Absolutely. There would have been more vernal pools…in larger sections of wetlands. Frogs moving to cryptic vernal pools.

Caffry: Identified locations of your observations of amphibians movements, related to proposed subdivisions. One along Ski Tow Road near Sugarloaf East subdivision.

Dr. K: Correct.

Caffry: If record would show that Sugarloaf East intended to be created in year four. Would impacts begin in year 4?

Dr. K: Amphibians impacts, yet…don’t know road construction plan.

Caffry: Been some info about doing study after permit.

Tom U: Objection…looking into those testimonies outside the scope.

Caffry: Don’t think so. Want to know when impacts will occur.

Dr. K: Can’t answer until know construction schedule. Maybe other infrastructure development which may affect populations.
Juvenile populations also affected. Very large dispersal area of animals.

Caffry: Development of housing on habitat site?

Dr. K: Whole host of issues that will affect populations. Many ways to mitigate them in construction documents.

Caffry: Sugarloaf North subdivision there too. Likely that area would contain amphibian habitat?

Tom U: objection..not part of Dr. K reconnaissance.

Judge: Too far a field…finding examination repetitive.
Need to be very focused on supplemental direct.

Caffry: Amphibians from just Sugarloaf East or entire mountain.

Dr. K: Probably from entire mountain. But must know this is a single study of small area. Need more transects, more research…that’s what’s lacking is baseline data.

Caffry: Are you aware…not further questions.

Don Dew Jr.: My questions have been answered.

Jon Kopp: Just few questions. Aware of herp atlas program.

Dr. K: Volunteers that look at plots or transects…observations not all properly done. Tendency for scientists not to look at. But still valuable because of interest by people.

Jon Kopp: 1990? Still adding info?

Dr. K: Yes…doing it for a while.

Jon Kopp: Know what groups involved.

Dr. K: Many groups, individuals…danger…data not all quality. Professors’ stuff good, but many individuals don’t accurately log. Lot of stuff done without documentation hard to verify.

Jon Kopp: Called herping?

Dr. K: Bumper stickers say honk when you herp.

Jon K: Animals collected any on endangered species?

Dr. K: No, nor threatened or on list of special concerns.

Jon K: Impact of ACR on amphibian population of Adirondacks?

Judge: Beyond scope?

B.G. Read: One question. Mentioned saw Read family camp. Read family members would like you to come up end of May, because birding is good. No leaves on trees. If some of the ACR owners will have natural interests, and there will be road traffic between May 1 and end of May, any danger to salamander migration?

Dr. K: Would certainly..road mortality major factor.

BG Read: Road design an important feature for ACR.

Dr. K: Yes. Road development very important. Need to identify where populations, through study, or heavy wildlife use. Make roads, with underpasses, etc.

Carol Richer: Besides feeding other wildlife, other benefits to amphibians around to man?

Dr. K: One of things is soil aeration. Before worms had salamanders. Nutrient cycling. Wood frogs play role in recycling…breaking down leaves and other biomass. Many functions other than being interesting. But most important is the basis of food chain.

Carol: What do they eat?

Dr. K: Primarily insects. Frogs eat other things, like larva. Bull frogs occasionally eat other frogs.

Dr. Klemens excused

Missed an hour of testimony after lunch.

David Norden, real estate specialist for resorts, witness for Protect the Adirondacks.

Caffry: Desirability of clustered type village.

Mayor Mickey Desmarais and Bob Fuller present.

Caffry: Question does design of this project to present a village type environment. Desirability of that

Norden: Once people arrive at ski area don’t want to leave their car. That’s why ski in, ski out are desirable. See base lodge, various other amenities…don’t see a lot of real pedestrian access which is what pedestrian village is aimed to do.

Caffry: If pedestrian village at base, increase sales?

Norden: People will pay a lot to be close to the action…increase prices.

Caffry: Aware of various subdivisions.

Tom U: Objection. What have to do with ski area.

Judge: Allow it.

Norden: Have some understanding.

Caffry: Cranberry Village?

Norden: Difficult to determine how arrive at base. Will require long traverse on flat terrain, which snow boarders don’t like.
Doesn’t qualify as quality ski in, ski out.

Caffry: East village neighborhood? Served by transport lift?

Tom U: Object, not subject of pre-filed testimony.

Caffry: Lot of testimony this relates to.

Judge: Rebuttal focused on Mr. Dodson’s alternatives. Was discussion about transfer lift, so can ask questions.

Caffry: Transport lift service East Village? Ski in, ski out?

Norden: Tie in is logging road that is very flat. Ten percent is industry norm for nice glide down. Once on lift, now transfer across base area, fairly flat. Would be tricky ski in, ski out.
People would ski back along logging road, to East Village and Cranberry.

Caffry: Potential buyers buying ski in ski out. Do they look at these factors?

Norden: In buyers’ market, so will ask every question possible.

Caffry: In testimony about lack of quality of ski in, ski out homes?
Caffry: Testified to difficulty of ski in ski out access, likely effect potential for sales?

Norden: Better ski in, ski out, better access to amenities, higher the prices.
Will not be able to achieve a premium for ski in, ski out units.

Caffry: documents. Introduce Norden’s exhibits…about a dozen.

Distributed table of Franklin County real estate sales. Also excerpt from Cushman-Wakefield report in July 2006 that indicates that units proposed at ACR between $250,000 and $575,000 represent the highest prices of any land sales and listing in the Adirondack Park.

Caffry: Before you exhibit. Did you create document?

Norden: These are lot sales from the report and report showed 23 sales that were in northern part of park in three year period. Some not waterfront.

Caffry: Text at top of table?

Norden: Came from C-Wakefield report.
In text said “highest price of any land sales in Adirondack Park”
Average price per acre for non-waterfront was just over $13,000. For waterfront lots per acre is about $15,000.

Caffry: Non-waterfront…ranges in size?

Norden: Smallest two acres, largest 135 acres.
Great camp lots are 100 acres plus. Smaller ones 35 plus acres.

Caffry: Average predicted sales price by applicant?

Norden: Eastern smaller great camp lots about $30,000 per acre. Others $42,000 per acre.
Some in the range, but most not.
In C-W average is $13,000 versus $30,000 or $43,000.

Caffry: admission of table.
No objections.

Caffry: In testimony last week, Mr. Martin testified that data in C-W study could have been source of some of application materials. Based on your work, would you agree C-W report would support these sales prices.


Tom U: Object, not my recollection.

Caffry: Create document.
Norden: Public information, compiled it.

Documents of lot sales in Franklin County.

Norden: Did it recently.

What does it show?

Norden: Vacant land sales in county from 2009 to 2010 that do not have waterfront access. Equal to or greater than 20 acres.

Caffry: Why did you pick over 20 acres?

Norden: Curious know what larger lots are going for in FC, similar to great camp lots and smaller great camp lots.
Many in great camp lot size.

Caffry: Average per acre price over the 40 or so comparables…44. What is average per acre price?

Norden: $1,511.

Caffry: How compare with ACR?

Norden: Prices are significantly lower.

Tom U: Object on relevancy. Nothing remotely like ACR lots, location, town, etc. No idea where these lots are. Just clutter in the record. To suggest great camp lots should somehow be compared with northern Franklin County towns with $1,511 per acre price is totally absurd.

Caffry: Two are in Town of Tupper Lake. One in 2009 21 acres for $25,000 Richer family. Another $1,302 per acre…so lower than the $1,511.
During my questioning of Mr. Martin, his comparables were also north country in different county. This data is relevant and up to commissioners what weight to give to it. Great camp lots won’t have privileges of resort.

Tom U: In regard to C-W report that is now so essential, all of a sudden this is very relevant. Have no information on these lots.

VanCott: Staff takes position they are of limited relevance…add in minimal amount to the record. Commissioners will decide how comparable they may be. Tom U. is correct there is no basis to compare…but they are land sales in FC-albeit limited relevance.

Caffry: Mr. U saying exactly what I was saying about Mr. Martin’s testimony, so should be allowed in.

Judge: Arguments should be included in closing briefs.

New exhibit: Distance of Montreal to various ski centers. Comparing Mt. St. Sauvier, Owl’s Head, etc.

Norden: Driving distances and times, via Map Quest to various resorts in Vermont, Quebec and Tupper Lake. 209 km from Montreal, drive time 2 hours and 37 minutes. Five resorts listed closer to Montreal. Two farther- Mt. St. Anne and Le Massif.

Ryan Littlefield, son of Peter Littlefield and Elaine Yabroudy, attending afternoon session.

Caffry: No more questions right now. Reserve right to cross.

Questions: Dan Plumley, applicant, Kevin Jones

Kevin Jones: Pointed out the completeness of amenity packages. Other resorts that have similar packages. Why would someone not buy there. Response was because they would want to buy in Adirondacks.
Any demand for resort like this in Adirondacks?

Tom U: Object, sounds like Mr. Jones rebutting Mr. Elsemore’s testimony.

Kevin: In view, anything particular about ACR location that would make it particularly desirable?

Norden: Very attractive, very pristine.

Kevin: In your experience, seen desire for such a location like Tupper Lake.

Norden: Greater population looking for greater access to resorts nearby.

Kevin: By access you mean?

Norden: Drive time and mileage.
Shorter distance the better…divided highway better than non-divided highway.

Jones: Amenity package of skiing, golf, boating, how does that compare?

Norden: Lake is unique. Not many mountain resorts with water access. Golf course, although public, is unique. Mountain itself, vertical not that great. Improvements are fixed lifts…clients looking for better lifts…doesn’t compare from technology standpoint.
Lifts now with heated seats. Transfer lifts at Stowe are gondolas, so warm.

Jones: In your work…
Norden: People not looking to move away from quality…looking for lot of things.

Jones: Orvis branding, how significant?

Norden: Partnering very important with any resort. Orvis very popular.

Jones: Based on experience, how you view plan in phases, one portion of phasing more saleable than others. Ones less saleable?

Norden: People want full product. Don’t want to buy on a promise. Promises broken in late 2000s. Developers lost that trust. If can accelerate improvements, will enhance the sales. If slow down on improvements, will decrease sales.

Jones: If improvements to ski slope and marina done in year 1, would great camps be easier to sell?

Norden: Property sold as mountain resort, with ski area as centerpiece. That should be done first. This must be moved as forward as can to gain confidence of buyers.

Jones: Regarding great camp sales first, is that wise?

Norden: Great camps…there’s a buyer…don’t know how many. Great camps will attract someone not interested in all the amenities. Sense they would be perceived differently than more nestled-in products.

Jones: When work with developer, what type of analysis do you do on products?

Norden: Try to do as much research as can. In mature industry. Difficult business. Need to understand your market and your comps. Need to understand all about the rooms. Need to understand everything consumer may be looking for. Need to know competition very, very well.

Jones: Type of analysis we’ve after, is that part of analysis you would do?

Norden: These are just high-level graphs. I wanted to get sense for myself. Did my own homework so can see how properties can be developed. Need to work more closely with developer.

Jones: Is this part of the analysis?

Norden: Understanding price points important, macro trends…but need to go much deeper.

Jones: Exhibit 218. If that was project you were working on and that’s where Tupper Lake fits, would that lead you to make further analysis.

Norden: Try to find the market,..try to find the concept to improve Tupper Lake’s standing.

Jones: Mr. Elsemore said he thought W-C report optimistic?
Tom U: Objection.

Norden: Believe outdated. Anything done in 2006 has very little relevance to market today.

Dan Plumley of Adirondack Wild: On page 14 lines 1 to 3, you reviewed Hudson Group Report summary?

Norden: Yes.

Plumley: Involved with study?

Norden: Don’t remember all key points.

Plumley: Recall finding significant concerns about superficial nature of price points?

Tom U: Objection

Plumley: Hudson hired by town to review project application. Found similar concerns about marketing and analysis?

Norden: Have to go back to Hudson Group report. Spent most of my time on the application.

Plumley: Page 15, you state report gives investor fuel required to determine the market. Tupper Lake is smaller in scale and more difficult to access than comparables?

Norden: Competitive set include resorts in NYS, Vt., Quebec..reasonable drive time to NYC, Boston, Montreal.

Plumley: Stated ACR in much lower category for success.

Norden: Yes.

Plumley: Much lower chance of success?

Norden: Yes, as proposed.

Plumley: With respect to scale, Big Tupper is of smaller scale not to support robust real estate program.

Norden: Can’t find a ski area of this scale that produced a real estate development of this size.

Plumley: Hard to break into the resort industry?

Norden: Correct.

Plumley: Say Big Tupper is an unknown and has failed? Well established resorts that successfully market real estate. True in NE.

Norden: In northeast, the consumer has a lot of uncertainty and real fears in the market. When that happens, people looking for safe havens…places well branded with good track records. Important in uncertain times. Tupper Lake not big brand in Northeast. People believe quality is paramount, brand recognition important.

Plumley: Speaking to risk in the market?

Norden: My testimony is on probability, not risk.
Risk is for developer to determine.

Plumley: You go into process of analyzing resort proposal. Expand on perspective of how that applies to ACR, had you been retained.

Norden: Like clearly identified milestones, so can identify expenses.

Plumley: Milestones defined here?

Norden: Haven’t seen. Feel market research work not as complete as I would have liked.

Plumley: market study should be used in modifying project so consistent with the market?

Norden: If price points higher than expected, could take advantage of that. For eg. If golf not important, remove that from plan. Need to know what consumer wants. Once to market work, then adjust. That process goes on until ready to launch.

Plumley: Get strong perspective that project not designed for market today?

Norden: Do not believe project exposed will be able to achieve sales volume predicted here. A disconnect with what people are seeking.

Plumley: Speak to Generation X market?

Norden: Baby boomer, last one, born in 1964. Youngest one 46 years old. During our research work, half buyers below age 46…growing market. Baby boomers greatly effected by recession…market so beat up they won’t come back to real estate. Someone 30 years old is willing…prices depressed, they have earning power…strong and emerging market.

Plumley: That growing market is more interested in developed property, as opposed to taking risk on lots?

Norden: All buyers looking to reduce risk.

Plumley: Do you have any thoughts as to how you would restructure this project or its marketing analysis?

Caffry: Objection. Beyond scope of witness.

Judge: Sustained.

Plumley: Hear any of Mr. Elsemore’s testimony? Said ACR is at best a two season resort: summer and fall. How does that strike you?

Tom U: Object.

Judge: Rephrase…don’t have cross examination witness.

Plumley: Do believe a four season resort.

Norden: Don’t believe any resort is four season…three at best. No one goes anywhere in March and April.

Plumley: Good part of testimony speaks to team work. Heard from applicant’s representatives didn’t know how price points established. Mr. Elsemore didn’t understand either where prices came from in 2005 and why increased in five years. Seem strange to you?

Norden: Don’t know how developer came up with numbers. I like to know everything.

Judge: Have time now to discuss schedule for tomorrow.

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