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APA staff sidesteps economic concerns with resort

September 30, 2011
By JESSICA COLLIER - Staff Writer ( , Adirondack Daily Enterprise

TUPPER LAKE - State Adirondack Park Agency staff say arguments that the Adirondack Club and Resort isn't economically viable aren't a reason to deny the project's permit.

Some of the testimony against the project in an APA adjudicatory hearing that lasted most of the spring argued that the project might not have much of a chance for economic success.

In their closing statement, APA staff have agreed that developers' projections are overly optimistic but argue that the APA Act only requires that commissioners decide whether the project's adverse environmental impact is unwarranted, given the project's possible benefits. It doesn't require them to be certain that the economic benefits will occur.

"The question for the Agency board is whether the impacts of (the) project are unwarranted, even with the mitigation provided by the recommended conditions, taking into account the benefits that 'might' occur," the staff brief reads. "Questions raised at the hearing regarding the viability of the project are not directly relevant to the Executive Law 809(10)(e) criterion."

The APA was one of 18 parties that submitted some sort of closing statement for the adjudicatory hearing. Statements ran from a few paragraphs to more than 200 pages.

The APA's filing included both a closing statement and a draft permit with conditions. The conditions have been revised since they were first distributed in March.

Fact Box

The Adirondack Club and Resort is a proposed project that would overhaul the Big Tupper Ski Area and build out the land around it with up to 699 luxury housing units and various amenities including an inn, a marina and an equestrian center. The project is under review with the state Adirondack Park Agency and, as part of that review process, was studied in an adjudicatory hearing.

The 19-day hearing was spread out over three months, broken up into blocks based on groups of issues.

Parties submitted closing briefs last week. Response briefs are due in about a month.

APA staff don't make a recommendation about whether the project should be approved, denied or sent back to hearing, but they do recommend that if it's approved, commissioners approve it with their conditions attached.

One of the significant additions to the conditions includes a stipulation that the project won't be considered complete after five years if a quantitative biological survey and habitat impact analysis has not been completed that studies amphibian activity on the project site. One of the biggest concerns environmental groups had during the hearing was that developers had done little to find out what impact the project would have on the surrounding plant and animal life, despite APA requests for them to do so.

Conditions also require developers to ensure that remaining open space on the project properties is never developed.

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Lead developer Michael Foxman told the Enterprise earlier this week he found most of the changes to the conditions acceptable, but some were changes he would like to discuss with APA staff.

Foxman said his main issue is the lack of flexibility in the draft order.

"The project's going to most likely extend over 15 years," Foxman said. "It can't be tied with great precision to what we think will be the case now. There is absolutely no doubt that we will have to react to circumstances over the course of the project."

Preserve Associates, the limited liability corporation headed by Foxman to run the development, submitted a 174-page brief highlighted at the beginning by the public support for the project expressed at a March 16 legislative hearing in which about 90 people spoke out in favor of the project.

It then argues that the project meets or exceeds established criteria for approval and lists the mitigation measures developers have agreed to. It also notes that Big Tupper Ski Area has failed several times financially, so developers have carefully created a phasing plan in which housing sales will support the ski area's operation.


Other parties

Franklin County submitted a resolution passed by the Board of Legislators earlier this month in support of the project, and the village board submitted a letter highlighting some of the agreements between developers and the village, and committing its support.

The town of Tupper Lake and the town-village planning board submitted a letter that doesn't comment on the project but reserves the right to submit a reply brief.

Protect the Adirondacks submitted a brief that argues the project's permit must be denied. Attorney John Caffry says in the brief that the burden of proof is on the developers. He says they didn't give enough proof to support their revenue projections or the lack of undue impact on a variety of environmental considerations. Protect argues that approving the application would be arbitrary, capricious and would violate a variety of laws.

Another environmental group, the Adirondack Council, asks the APA in its brief to issue a permit but with reasonable, appropriate conditions that would mitigate any undue adverse impact.

John and Patricia Gillis request the same thing in their one-page submission, asking that the APA put an emphasis on opening and revitalizing Big Tupper.

Neighboring property owners Dennis and Brenda Zicha submitted a 60-page brief that, in its introduction, argues that the hearing process didn't fulfill the goal of gathering the information the APA wanted about environmental impact that it didn't get from developers.

"How can staff be satisfied with answers from the applicant such as, 'I don't recall;' 'I don't know;' and 'we did not do that,' when staff commented many times during hearing testimony that the applicant failed to provide requested information that was asked for several times?" the Zichas' brief asks. "Many questions still remain after seven years of effort."

The Zichas suggest the project needs to be sent back to hearing for more information before it can be approved.

A number of other parties submitted briefs that also mentioned concerns about the project brought up during the hearing.

Don Dew Jr., an adjoining property owner, and Dan McClelland, Tupper Lake Free Press publisher and nearby property owner, both submitted quick letters noting the public support for the project, as displayed at the legislative hearing mentioned by the developers.



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