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State, developers: Throw out ACR lawsuit

June 14, 2012
By JESSICA COLLIER - Staff Writer ( , Adirondack Daily Enterprise

TUPPER LAKE - The state and developers are asking the court to dismiss a suit against them regarding the Adirondack Club and Resort proposed for the Big Tupper Ski Area.

The two parties submitted responses to the lawsuit in late May, arguing against many of the claims made against the state Adirondack Park Agency in its 10-1 approval of the resort in January.

Protect the Adirondacks, the Sierra Club and three nearby landowners, Phyllis Thompson and Robert and Leslie Harrison, filed the lawsuit in March to get the decision overturned.

The state attorney general's office is arguing the case on behalf of the APA and the state Department of Environmental Conservation. The DEC is named in the case because some of the accusations made in the suit deal with plans by Preserve Associates, the limited-liability corporation developing the ACR, to offer its patrons a boat valet service through which it would put visitors' boats in the water at a state boat launch on state Route 3 and 30.

In response to many of the lawsuit's claims, the state largely refers the court back to the laws, transcripts and other records from the 19-day adjudicatory hearing held last year on the project. It does note some specific arguments, though. Preserve Associates' response goes into detail more often to argue its case.

Both the state and Preserve Associates take issue with the fact that the lawsuit includes accusations about land that's not classified as resource management. The order sending the case to an adjudicatory hearing in 2007 specifically barred the hearing from dealing with anything other than resource management lands, and the APA's decision was required to be made exclusively on the hearing record.

Fact Box

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.

In addition to that, 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.

"Judicial review is limited to those issues that were adjudicated at the hearing," the state's reply reads.

Both replies also take issue with accusations that not enough information on wildlife at the site was available to the APA board in making its decision. The state lists the information it did get from Preserve Associates and notes that it is requiring more information through permit conditions before anything can be built in certain areas of the project.

The replies also take issue with accusations made about the financial aspects of the project. They argue for the most part that the arrangements Preserve Associates are making with the Franklin County industrial Development Agency are incomplete, that they had to be until the project got APA approval, and that the APA has no jurisdiction over the IDA.

The lawsuit argues that the decision had to be made with environmental issues at the forefront, but the replies argue that the APA had to give consideration to the potential economic impact of the project in balance with the environmental issues.

Two affidavits submitted by the state respond to the suit's accusations that the APA didn't handle the case correctly. The lawsuit alleges that APA staff had inappropriate communications with parties to the hearing, and that the staff that familiarized the board with the hearing record gave a biased view of what had happened.

John Banta, who recently retired from his position as APA legal counsel, filed an affidavit arguing that no improper ex parte communications happened. He thoroughly explained the steps the APA took to ensure that the process went smoothly without violating any laws. He wrote that it was deliberately designed to allow the board the board to fully engage a complex record.

"The process was open and transparent," Banta wrote. "The agendas and webcast demonstrate a progressive engagement by each and every agency member with details of testimony, exhibits, the application and the site."

The lawsuit also noted a North Country Public Radio interview village Mayor Paul Maroun did shortly before the decision, in which Maroun speculated that he expected the APA to rule in favor of the resort. Maroun has been a vocal supporter of the project, and the lawsuit argues that the interview was proof of improper communications between APA staff and parties to the hearing.

But Maroun wrote in an affidavit that his remarks were based on a conversation with APA attorney Paul Van Cott, whom he said he could talk to because VanCott was part of the hearing staff, not the executive staff, which worked with the board to answer questions they had in making their decision. He said both he and Van Cott were speculating and didn't know how the board would actually vote.

In addition to asking the court to throw out the case, both the state and the ACR developers asked that they not have to pay the legal fees for the parties who brought the lawsuit.

The groups and individuals bringing the lawsuit are scheduled to serve their replies next week. After that, the case is expected to be transferred to the appellate division and enter the discovery phase.



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