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Resort hearing parties vie over witness issue

March 24, 2011
By JESSICA COLLIER, Enterprise Staff Writer

TUPPER LAKE - Things got contentious at the Tupper Lake Train Depot Wednesday when an environmental group's lawyer tried to call non-expert, spur-of-the-moment witnesses to the stand to rebut an expert's testimony in the Adirondack Club and Resort adjudicatory hearing.

Protect the Adirondacks attorney John Caffry asked to call three rebuttal witnesses whom he said were needed to call into question testimony that ACR engineer Kevin Franke had given Tuesday on the ACR's potential use of the nearby state Department of Environmental Conservation boat launch. He tried to call Pete Littlefield and Elaine Yabroudy, a married couple who live on Lake Simond Road and are avid boaters, and Phyllis Thompson, a seasonal Lake Simond resident who volunteers in the summer at the boat launch as an invasive species steward.

ACR attorney Thomas Ulasewicz, along with several other parties, objected. Ulasewicz said he didn't like the fact that Littlefield and Yabroudy are parties to the hearing and being called as witnesses. He said they could have offered pre-filed testimony if they had information to offer about the boat launch. If just anyone is allowed to be called up to rebut any testimony at a moment's notice, he predicted that it could be used to draw out the hearing.

Article Photos

Parties to the Adirondack Club and Resort hearing argue over the use of rebuttal witnesses Wednesday. From left are developer Tom Lawson, state Adirondack Park Agency lawyer Paul Van Cott, Protect the Adirondacks lawyer John Caffry, Franklin County Legislator Paul Maroun and ACR lawyer Thomas Ulasewicz, seated.
(Enterprise photo — Jessica Collier)

"I think this is clutter to the record," Ulasewicz said. "I think this is a terrible precedent for us to establish for the rest of these proceedings."

He said he was also concerned that these were non-expert witnesses being put on to rebut an expert witness's testimony.

Several other parties also argued that such a precedent could be a problem.

Fact Box

The hearing

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The adjudicatory hearing for the Adirondack Club and Resort is set to run for 26 days, broken down into three two- to three-week groupings by topic.

The first group was scheduled to run for two weeks, but O'Connell and several parties said Wednesday they'd like to try to squish all the work into today and Friday.

The first two days of this group of hearing sessions, which started with discussion of the boat launch and will next address the resort's potential visual impact, were held at the Tupper Lake Train Depot, but today they move to APA headquarters in Ray Brook.

ACR engineer Kevin Franke is scheduled to testify first today on visual impacts. Then the Adirondack Council's expert witness, landscape architect Harry Dodson, is set to take the stand. APA planner Colleen Parker is the last expert witness scheduled to testify on the topic, but she said Wednesday she didn't expect there to be time for all three witnesses today.

Session group 2 is set to last two weeks, and session group 3 is scheduled to last three weeks, with several weeks off in between each.

The sessions held at APA headquarters will be webcast live at www.apa.state.ny.us. Any sessions held in Tupper Lake will be processed and posted for viewing on the APA website a few days after they are recorded.

Administrative Law Judge Daniel P. O'Connell, who is on loan to the state Adirondack Park Agency from the DEC, said he has to allow rebuttal witnesses according to regulations set out for an adjudicatory hearing, but he wants to make sure they're used efficiently.

Caffry argued that much of the time, it's difficult to know ahead of time when a rebuttal witness will be necessary.

After an afternoon of heated arguments, O'Connell finally settled on an arrangement that satisfied all the parties.

Rebuttal witnesses will be allowed, but parties need to let O'Connell know if they'll have a potential rebuttal witness ahead of time, if possible. They need to name the person, outline their qualifications if the person is an expert witness or prove somehow their knowledge if the person is a lay witness, and give an idea of the scope of the testimony.

O'Connell said if the need for rebuttal witnesses comes up because of live testimony, a party will have to make a motion to put the witness on or at least notify him and the other parties if they plan to put one on in the future.

Ulasewicz said the agreement sounds good on paper, but he hopes all the parties keep in mind that the hearing has a limited amount of time and he hopes no one abuses the guidelines.

Developers want to overhaul the Big Tupper Ski Area and develop the land around it with 651 luxury housing units and various amenities including a 60-unit inn, a spa and a marina. The project, the biggest one ever to go before the APA board, is being run through an intensive adjudicatory hearing in order to help agency commissioners decide whether to permit the development.

Much of Tuesday and Wednesday's hearing sessions were used to iron out procedural details while parties are still dealing with a more cut-and-dried issue, an attempt to streamline the process once issues get more complicated.

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Contact Jessica Collier at 518-891-2600 ext. 25 or jcollier@adirondackdailyenterprise.com.

 
 

 

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