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DEC sides with suit against resort rezoning

December 2, 2008
By NATHAN BROWN, Enterprise Staff Writer

TUPPER LAKE - The state attorney general's office, acting on behalf of the Department of Environmental Conservation, has filed an "amicus curiae" (friend of the court) brief supporting a lawsuit brought by opponents of the proposed Adirondack Club and Resort against the town and the resort's developers.

The plaintiffs are claiming that the town acted illegally in rezoning 6,248 acres surrounding the former Big Tupper Ski Area as a Planned Development District. They claim it was a Type I action under the State Environmental Quality Review Act, which would make the rezoning subject to an environmental impact review by the DEC. The defendants contend that the land was exempt from review, as the rezoning was a Type II action, and the state Adirondack Park Agency's extensive review was adequate.

"While the municipality may coordinate its environmental review with the (state) Adirondack Park Agency, it may not delegate to APA its own obligation to take a hard look at the environmental impacts before taking final legal action," state Assistant Attorney General Susan Taylor wrote in the brief supporting a lawsuit brought by the Association for the Protection of the Adirondacks, the Residents' Committee to Protect the Adirondacks and more than 30 nearby landowners.

"DEC takes no position on the merits of the development project, and submits this brief only to convey its views with respect to the correct application of SEQR as it intersects with the Adirondack Park Agency Act," the brief went on to say.

DEC spokeswoman Lori Severino said the DEC filed an amicus brief because the agency thought it would be helpful to the court to hear the DEC's interpretation of a law it is charged with administering.

The original lawsuit was dismissed by state Supreme Court Judge David Demarest in November 2007; an appeal was filed in September.

The lawyers will present their arguments before the state Supreme Court's Appellate Division in Albany at 1:30 p.m. on Dec. 17.

Town Attorney David Johnson said he didn't know how long it would take the five judges to make a ruling, although he said it would likely come within 60 days of the hearing. The plaintiffs are being represented by John Caffry of Caffry & Flower in Glens Falls, the defendants by John Henry of Whiteman, Osterman and Hanna of Albany.

"The APA has jurisdiction over a project of this size," Johnson said. "They do a total environmental review, which they've been doing (on this project). It would be just a duplication for the DEC to do the same environmental quality review."

Johnson said the APA supported the town's rezoning of the land into a Planned Development District. He said this was to make applications by the developer simpler, since it made the entire area would have the same zoning classification.

Henry said in his court brief for the town and developers that the April 2005 permit application to the APA was five volumes thick, including supporting appendices with drawings, and contained enough information for the town board to make a decision. He said the "plain language" of the SEQR Act exempts the project from DEC review. Johnson said the number of homes to be built as part of the project has dropped from 600-something in the original plans to 500-something now, meaning the environmental impact of the project would be less than under the original plan.

Caffry, in his brief for the plaintiffs, said the town "enacted a law that suspends major zoning rules on 6,248 acres of land, for a period of at least four years, with no guarantees that the impacts of this suspension would ever be reviewed or mitigated. This failure cannot be undone by subsequent APA review."

Dave Gibson, executive director of the Association for the Protection of the Adirondacks, said his organization has been in touch with the DEC since early 2008, when it decided to appeal Demarest's ruling.

"We were hopeful they would get involved," Gibson said. "We thought the case was very strong. And we thought the case would be even stronger if the DEC, the SEQR administrator, weighed in."

Johnson said he is annoyed at the timing of the attorney general's motion, as the case will be heard in two weeks and both sides have already filed extensive briefs.

"The briefs are in, and everyone is ready to make their presentations before the court," he said.

The state put an adjudicatory hearing for the resort on hold at the developers' request about a year-and-a-half ago. Closed-door mediation meetings have been going on since March 4. The parties to the mediation, which include local officials, the developers, environmental groups and owners of land adjacent to the proposed resort, are bound by a confidentiality agreement. Although some of the parties have reported "progress" in the negotiations, almost no details have been released. The DEC and APA have denied attempts by the Enterprise and other reporters to obtain records related to the meetings under the state Freedom of Information Law.

Contact Nathan Brown at 891-2600 ext. 26 or nbrown@adirondackdailyenterprise.com.

 
 

 

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