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Plaintiffs: Governor influenced resort permit

APA denies green groups access to emails with Cuomo’s office before ACR decision

September 19, 2012
By JESSICA COLLIER - Staff Writer (jcollier@adirondackdailyenterprise.com) , Adirondack Daily Enterprise

TUPPER LAKE - The two environmental groups that are challenging the state Adirondack Park Agency's approval of the Adirondack Club and Resort say the governor's office had an inappropriate political influence over the decision.

The two groups announced Tuesday that they filed a motion dated Sept. 6 asking that they be given access to documents denied to them by the APA through state Freedom of Information Law requests.

Those documents include nine email threads between attorneys from the governor's office and APA attorneys or other APA employees acting pursuant to attorneys, and three legal updates between governor's attorneys and APA attorneys. APA Acting Counsel Sarah Reynolds argued in a July response to Protect attorney John Caffry's FOIL appeal that both of those were protected under attorney-client privilege and as attorney work products.

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Gov. Andrew Cuomo
(Enterprise file photo)

They also include five draft APA meeting agendas and six email threads between APA employees and employees from the governor's office, all of which Reynolds argued are protected under the deliberative process privilege, which is meant to protect the internal processes of the executive branch of a government.

The green groups argue in the motion that those communications shouldn't be subject to those privileges and that they violate ex parte rules. They argue that, outside of APA legal staff, the only other communications protected by attorney-client privilege would be between the APA and the state attorney general's office, since the AG legally represents the APA and other state agencies in court.

They also say that if the communications happened, the other parties to the hearing should have been notified of them.

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In a press release issued by the green groups, they argue that the APA leadership was set up explicitly to avoid political influence, since it has an 11-member board of commissioners rather than a single leader like the state Department of Environmental Conservation. The commissioners are appointed by the governor.

Protect and the Sierra Club are asking that the documents be released so they can be examined.

So far, the APA released 149 pages of material to Caffry after his first FOIL request, then 946 more pages after he appealed other material being withheld, according to Reynolds' letter.

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THE ADIRONDACK CLUB AND RESORT, proposed by a Pennsylvania-based investment group called Preserve Associates, would overhaul the Big Tupper Ski Area in Tupper Lake and build out the land around it with about 700 luxury housing units and various amenities including a spa, a marina and an equestrian center. The project received permits from the state Adirondack Park Agency on Jan. 20 after eight years of negotiating, reworking the application and an extensive adjudicatory hearing.

In March, two environmental groups and three nearby landowners filed a lawsuit to challenge the APA's decision. That suit is working its way through state courts.

The project must also obtain a number of other approvals, including from the state departments of Environmental Conservation and Health, the U.S. Army Corps of Engineers and the local town-village planning board.

The APA has denied there were any improper communications.

The green groups argue in the motion that even an appearance of impropriety in terms of ex parte communications is enough to overturn the APA's approval of the development. They say they've found evidence of at least an appearance of impropriety previously through documents like a memo from ACR attorney Tom Ulasewicz discussing agreements over permit language he made with APA Attorney Paul Van Cott and then-APA Counsel John Banta, who has since retired.

In the motion, the green groups also ask that the state provide a full transcript of the APA meetings at which the project was discussed, rather than just video of the meetings.

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Contact Jessica Collier at 518-891-2600 ext. 26 or jcollier@adirondackdailyenterprise.com.

 
 

 

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