TUPPER LAKE - Even before the start of the final review process the Adirondack Club and Resort must go through with the state Adirondack Park Agency, advocates for and against the project were discussing the possibility of a lawsuit arguing the agency's final decision.
But representatives of the environmental groups who are considered the ones likely to sue are saying that they haven't decided yet whether to do so if the project is granted approval.
Lead developer Michael Foxman said he expects a lawsuit if the project is approved, but he won't file one if the project is denied. He said he doesn't believe either side could win.
"I think what the APA decides will be unassailable by either side," Foxman said.
Foxman said he doesn't believe the Adirondack Council would file a suit, but he said it's possible the other environmental groups may do so.
"It will not be with the expectation of winning," Foxman said. "It much more likely would be as a fundraising effort."
Foxman said he's expecting the project to be approved with conditions, especially in light of the current focus by the state on economic development.
"Your governor certainly seems to have the improvement of the economy as a significant goal," he said.
After the APA board makes what's expected to be their final decision on the project in January, parties to the hearing have 60 days to file an Article 78 lawsuit, the proceeding used to question the decision of an administrative agency, which would ask one of two questions.
Supreme Court in Franklin County would consider the proceeding if the question asked is "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed."
State appellate court would consider the proceeding if the question raised is "whether a determination was made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence."
A judge could decide to allow developers to proceed with the project while the proceeding is under way.
Anyone who was not a party to the hearing would have to petition the court to be considered an aggrieved party and be given the right to sue.
Protect considering options
Protect the Adirondacks attorney John Caffry said he couldn't discuss the possibility of a lawsuit.
He said he and his client are aware of their options but haven't yet made a decision about whether to sue if the project is approved.
"We would like to think there would be a satisfactory outcome," Caffry said. "If there isn't, we will consider our options."
But Protect sees the only satisfactory outcome as denying the project. Caffry said there are several aspects of the current proposal that don't satisfy the APA Act, and he doesn't believe that Preserve Associates proved that they're entitled to a permit, especially when dealing with the wildlife habitat impact issues brought up during the hearing.
Even if Protect hasn't made a decision yet, Caffry said he's keeping the possibility of an Article 78 in mind.
"As the attorney, it's always my job to prepare for that possibility," Caffry said. "But I can't tell you what the client may or may not do or what its thinking is right now."
Glennon's "Adirondack wars"
Possibly most disturbing to resort supporters is the emergence of Robert Glennon back on the scene. A former APA executive director, Glennon, working for the Sierra Club, was blamed by many in Tupper Lake after the state decided in 1997 to build a maximum security prison in Malone rather than Tupper Lake.
Then he worked for 12 years as head of the state Attorney General's Plattsburgh Regional Office, but he retired from that position this fall to "re-enter the Adirondack wars," he told the Enterprise.
Since then, he has joined Protect the Adirondacks' Conservation Advocacy Committee, which Caffry chairs along with Sid Harring. Glennon attended and took plenty of notes on both days of the APA board meeting earlier this month, during which the board started to review the project hearing record.
But he said his role right now is purely observational.
"Nobody's hired me," Glennon said.
He said he's acting as a citizen activist as a member of both Protect and Adirondack Wild: Friends of the Forest Preserve, "just showing the flag."
"I just volunteered," Glennon said. "I said, 'I'm retired now. I want to get back into the Adirondack wars. Let's go.'"
Glennon's addition to the mix matches him back up against Thomas Ulasewicz, who he replaced as head of the APA when Ulasewicz left for another job in 1987, and who the town of Tupper Lake hired to fight for the town in the battle for the prison.
Glennon was also head of the APA in 1993 when the Tupper Lake town board rejected a land-use plan that would have transfered more review responsibilities away from the APA to the town. At the time, he criticized the decision, saying it would have given the town more jurisdiction over development there.
Wild: Deny or send back to hearing
David Gibson, co-founder of Adirondack Wild, said he believes it's premature to talk about a potential lawsuit.
"The APA has a job to do," Gibson said. "They just started that in November, and they have a very important meeting coming up in December.
"I expect the agency to dig in and do their job. I'm confident if they do that, they'll reach the right decision."
The right decision, in Gibson's eyes, is to deny the permit or at least send it back to an adjudicatory hearing. The latter would give them time to deal with a number of issues that Gibson doesn't believe were addressed thoroughly enough in the hearing that was held in the spring and would give the APA time to look more seriously at alternatives to the current project designs.
"Additional time could be very beneficial for the commissioners," Gibson said.
He said his board isn't doing anything to prepare for a potential approval of the project yet. He said they're getting the word out to their membership to pay attention to the issue and they're waiting to see what happens.
Council playing nice
Adirondack Council Executive Director Brian Houseal said his organization doesn't anticipate a need for a lawsuit right now.
He said he believes the APA is adequately dealing with the issues the council was concerned about.
"So unless something goes wildly off track and they violate their own procedures, we don't see a need for an Article 78 at this time," Houseal said. "We don't see anything so far out of alignment that we feel that a legal action would be needed at this time."
He reflected Foxman's feeling that an Article 78 would be difficult to win, noting that the six-year review process has extensive documentation, and that courts generally give a lot of deference to the agency being challenged in a typical Article 78 case.
The council has a few concerns that it still wants to see addressed through conditions, though, Houseal said. He said the council wants to see permanent deed restricts on the "great camp" lots east of Lake Simond. That issue was addressed by a letter submitted by Preserve Associates with their closing hearing documents, but Houseal said he wants to see it reflected in the APA's draft conditions.
The council also wants to see a wildlife assessment required for the entire development site. Houseal said that drafts of the permit conditions he's seen so far have only included the area around Cranberry Pond.
"The lack of a functional wildlife assessment applies to an entire site," Houseal said.
APA hearing staff, who ended their active participation in the review when the hearing record was closed on Oct. 26, is also preparing for a potential lawsuit and has been monitoring the webcast of the meetings. APA spokesman Keith McKeever said that with a project of this size and magnitude, there is the potential for litigation, and hearing staff would need to be involved if that happens.
"So it's important for them to hear what the agency board is saying," McKeever said.
Foxman said that there will still be plenty of work to do after the APA gives the project approval, if that's what it decides to do. He noted that there's a number of other permits he needs to secure, including permits from the state departments of Health and Environmental Conservation, final local planning board approval, plus negotiating a payment-in-lieu-of-taxes agreement with the Franklin County Industrial Development Agency.
Besides that, there will be architectural and engineering work that can be completed once they know what the APA is going to approve. Many conditions are being considered and negotiated for the proposed permit.
Tom Lawson, one of his fellow developers, has said he wants to start work as soon as the APA approves the project, and Foxman said he appreciates Lawson's enthusiasm, but he's not as optimistic about getting started right away.
"I think there will be most likely groundwork and continuation of improvements that ARISE (Adirondack Residents Intent on Saving Their Economy) started at the ski area," Foxman said. "I don't think there's going to be an immediate explosion of work."