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Discovery motion denied; ACR suit back in lower court

December 5, 2012
By JESSICA COLLIER - Staff Writer (jcollier@adirondackdailyenterprise.com) , Adirondack Daily Enterprise

TUPPER LAKE - Both sides are claiming victory in a court ruling in the lawsuit challenging the state Adirondack Park Agency's approval of the Adirondack Club and Resort.

The ruling denied a request by one of the environmental groups bringing the suit, Protect the Adirondacks, to allow them access to a wide range of materials denied to them by the APA in a Freedom of Information Law request.

Protect is accusing APA officials of having improper communication during their process of deliberating the ACR. Communication during an APA adjudicatory hearing is strictly regulated under ex parte communication rules.

Article Photos

Peter Bauer, executive director, Protect the Adirondacks
(Photo provided)

Protect made a motion in July in an Article 78 lawsuit it and others - the Sierra Club, Leslie and Robert Harrison and Phyllis Thompson - brought against the APA and the ACR for wide access to APA records denied to the group in Freedom of Information Law requests, and the group also sought the ability to depose, or question, people involved in the process.

The state argues that no improper communications happened, that there is no proof it did, and that such a discovery process would take too long and be too much of a burden.

The five justices of the state's Supreme Court, Appellate Division, Third Judicial Department decided Thursday they would deny that motion.

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But they also moved the proceeding to a lower court, the state Supreme Court, and will let Protect file the motion again there.

Some APA officials believe it's a good sign that, while the motion will be filed again, the higher court denied it, but Protect officials are saying this is what they wanted all along. Protect head Peter Bauer told the Enterprise in a Monday phone interview that his group had wanted to file the discovery motion when the suit was first filed in state Supreme Court but waited until the procedure moved to appellate court because ACR attorneys asked them to.

"It's actually where we wanted to start," Bauer said.

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 was approved by 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.

Bauer argues that because of that, Preserve Associates is responsible for delaying the proceeding.

"We think about four months of time was lost," Bauer said. If Protect had been able to file the motion when it intended, "we probably would have had an answer now on the merits of our motion."

Bauer said that if Protect's discovery request is granted, "it's really hard to say" how long it could take. He said it's possible that the state could challenge every witness Protect seeks to depose, and witnesses could refuse to answer questions. That could lead Protect to go back to court on each individual item to compel people to testify, Bauer said.

"It all depends," Bauer said. "There are a lot of variables."

Many ACR boosters frequently say Protect's only aim is to draw out the challenge so long that developers run out of money and abandon the project, but Bauer denied that.

"Not in the least," Bauer said. "This is all in an effort to fully pursue this case. It has always been our contention that this project did not win by a 10-to-1 vote without extraordinary political influence. ... It appears that that's the case, and that's what we're setting out to prove."

He said Protect is trying to move the lawsuit along.

"We're doing everything we can to make this a speedy process," Bauer said.

Lead developer Michael Foxman told the Enterprise in an email that the ruling will not affect the outcome of the appeal, and he noted that his group is proceeding with getting approval from the Tupper Lake planning board and real estate filings with the state attorney general's office.

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Second suit

Protect also filed a second Article 78 lawsuit to challenge the APA's FOIL denial. Protect attorney John Caffry wrote in a press release that the challenge was necessary to gain access to the documents it seeks in light of the ACR and state's opposition to them being made available.

That lawsuit was filed on Nov. 21, and no response or other paperwork has been filed yet in it.

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Affidavits

One of the biggest pieces of evidence Protect has cited, to prove that it needs to have further access to APA files, is a memo from ACR attorney Thomas Ulasewicz to other members of the development group on Jan. 1, a week before the final decision. In it, Ulasewicz makes reference to several issues in the ACR permit that he, APA attorney Paul Van Cott and APA Counsel John Banta agreed to, and information that Van Cott told him he would bring to the attention of APA Chairwoman Lani Ulrich.

Protect argues that it would have been inappropriate for Ulasewicz to speak with Banta and have such a direct line of communication to Ulrich under the ex parte rules governing communication in an APA adjudicatory hearing. Van Cott was the leading APA attorney in the hearing, and Banta was separated from him as part of the team that was tasked with aiding the APA board in its decision.

In three separate affidavits attached to the state's response papers to the discovery motion, Banta, Van Cott and Ulrich swear that no improper communication took place.

Ulrich categorically denies in her affidavit that she talked with any hearing staff member about the ACR during the hearing process or during the board's deliberations, and she specifically denies having an ACR-related conversation with Van Cott during that time.

Banta and Van Cott both deny the allegations as well, and explain how communication between the two of them worked. Between the board's deliberations in two sets of meetings in December and January, Banta's team entirely reworked the format of the ACR permit, so it was necessary to check with hearing staff to ensure that nothing had been transferred to the new format incorrectly, they argue. Banta said he acted as gatekeeper between the hearing staff and his team.

Banta denies reading the copy of Ulasewicz's memo, which he was emailed a copy of, since he wasn't supposed to communicate with the ACR attorney during that time. Banta writes that he never engaged in substantive discussions about permit language with ACR attorneys, and he didn't agree to meet with agency members with respect to Ulasewicz's concerns.

Van Cott states that he had numerous conversations with ACR developers, as well as many of the other parties involved in the hearing, throughout the process to ensure a complete hearing record was developed. The state argues that isn't improper, according to ex parte rules.

Van Cott notes that he made reference in the APA's closing and reply briefs to some of the meetings he had with developers, but Protect didn't raise any objection to it until making the discovery motion.

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

 
 

 

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