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Plaintiffs allege illegal communication over Adirondack Club and Resort

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

TUPPER LAKE - On Wednesday, an environmental group released papers it says prove that members of the state Adirondack Park Agency had improper communications as they finished up the review process for the Adirondack Club and Resort.

The documents are communications between APA staffers and ACR representatives while the final versions of the project's permits were being drawn up. Protect the Adirondacks obtained the documents from the APA through the Freedom of Information Act.

The APA denies any accusations of ex parte communication.

To comply with rules to prevent ex parte communication (side dealings between some, but not all, of the parties involved), the APA had one set of staff members - the team that guided the project through an adjudicatory hearing last spring, regularly referred to as the "hearing staff" - was allowed to communicate with the development group, Preserve Associates.

Another set of staff, referred to as the "executive staff," helped guide APA board members through their deliberations on the project. So they would not have too much influence on the board's decision, executive of staff was not allowed to communicate with Preserve Associates.

The documents show that Tom Ulasewicz, Preserve Associate's principal hearing attorney, and several other ACR representatives sent emails and memos to hearing staff attorney Paul Van Cott, which the APA says was OK.

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But the messages show Van Cott negotiating permit conditions with the developers, then passing the information on to APA Counsel John Banta, who was on the executive staff team, to work into the permit. Banta has since retired.

The only other hearing party included on some of those messages was Kirk Gagnier, who represented the town of Tupper Lake and the town-village planning board in the hearing.

Some of the messages discussed plans for meetings between the APA, the ACR and Gagnier.

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. That suit is working its way through state courts.

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.

Protect alleges that the documents show a clear line of communication from the developers to the executive team, and therefore to the agency board, though it may have been indirect through several other parties. Since the 30 or so other parties involved in the hearing weren't notified of those negotiations, Protect argues that they were not given a chance to comment on them.

In a 14-page memo dated Dec. 20, 2011, Ulasewicz parses that month's agency meeting, in which the executive staff briefed the agency board on questions they had and dealt with some of the issues they were concerned about. Ulasewicz notes a number of things said during the meeting that he disagreed with factually, that he said had been negotiated otherwise or that were not supported by the hearing record. Using forceful language, he tells Van Cott that the board must be told otherwise, and that revisions to the draft permit must be changed.

Protect alleges that all the changes pushed by Ulasewicz were reflected in the executive team's revisions of the permit shortly thereafter.

Protect also divulged one email that was sent straight from ACR engineer Kevin Franke to Banta, which Banta did not address in an affidavit saying there was no improper communication included in the state's May response to the lawsuit.

Protect also alleges in its reply to the state's response, which was filed Tuesday, that the developers shouldn't have had any communication with even APA hearing staff without other parties being notified of it.

They ask that the permit's approval be thrown out in light of these communications.

Speaking at the Common Ground Alliance conference Wednesday in Long Lake, APA spokesman Keith McKeever said the APA didn't do anything wrong.

"We followed all regulations regarding ex parte communications," McKeever said. "There was no improper communications that took place. Paul talking with the applicant's lawyer was appropriate conversation. There was nothing that was inappropriate regarding ex parte."

He refused to discuss any specifics of the allegations.

"In time, that will certainly right itself," McKeever said.

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Inexperience

Also in the Dec. 20, 2011, memo, Ulasewicz questions the agency board's capability of judging the project.

"With perhaps the exception of Art Lussi (whose family owns and operates the Crown Plaza resort in Lake Placid), the other members of the Agency Board are 'cutting their teeth' on this type of a project," Ulasewicz wrote. "Their efforts at getting this right - no matter how noble - can actually do more harm than good."

McKeever said Ulasewicz's comments about the board being inexperienced was an inappropriate comment, and he disagreed with Ulasewicz's assessment of APA staffer Ed Snizek as having a misinformed analysis of the record.

"The park agency has a very professional staff and a very experienced board," McKeever said. "We stand behind our staff and our board and the entire deliberations during the seven-plus years we were involved with this project."

 
 

 

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