The Adirondack Park Agency’s main entrance sign is seen at its Ray Brook headquarters in November. (Enterprise photo — Chris Gaige)

ELIZABETHTOWN — The Article 78 proceeding against the Adirondack Park Agency’s adjudicatory hearing for a proposed howitzer testing range in the town of Lewis has been delayed two months.

The proceeding, which seeks to nullify the APA board’s vote to hold the hearing, was initiated by attorney Matthew D. Norfolk, who represents the project applicant, Michael C. Hopmeier, through his company, Unconventional Concepts, Inc.

It was previously scheduled to commence in state Supreme Court on Friday, but has now been pushed to 10 a.m. on Monday, April. 20. The case is before state Supreme Court Justice Allison M. McGahay, and is still slated to take place in person at the Essex County Courthouse in Elizabethtown.

Norfolk requested the delay, which he said was “out of an abundance of caution,” to allow him to serve relevant legal filings to all parties, adding that it was his understanding that the state Attorney General’s office did not consent to receiving these filings via email and, in doing so, did not waive their right to receive physical copies, which would take more time.

State Assistant Attorney General Nicholas C. Buttino consented to Norfolk’s proposed scheduling delay, but wrote that he “disagrees with (Norfolk’s) characterization of events,” presumably referring to the documents’ delivery method, though it was not explicitly stated.

The state Attorney General is representing the respondents to this Article 78 petition. These include the APA, Executive Director Barbara Rice, Board Member Rush D. Holt and Administrative Law David N. Greenwood, all in their professional capacities related to the APA and its decision to hold an adjudicatory hearing.

McGahay accepted the schedule proposal and ordered it in a ruling that was filed on Tuesday. There are several intermediate dates contained in McGahay’s ruling that will comprise the Article 78 challenge’s pre-hearing phase.

The new schedule gives Norfolk until Feb. 27 to submit legal arguments and evidence in support of his petition. The respondents will then have until March 19 to submit a dispositive motion — basically an argument that the court should dismiss Norfolk’s petition before the hearing formally begins. Then, Norfolk will have until March 26 to respond to this, presumably arguing that the Article 78 proceeding should commence. Finally, the respondents will have another chance to respond to Norfolk’s rebuttal and defend their dispositive motion. That reply is due on April 9.

An Article 78 proceeding is a special type of lawsuit used to challenge decisions, actions or inactions of New York state or local governments, agencies and their staff. Presumably, it’d be the same mechanism for the losing hearing party or parties to appeal the APA board’s howitzer decision following the adjudicatory hearing.

But that’s still a long way off, and hinges on the adjudicatory hearing surviving the Article 78 proceeding. If Norfolk’s Article 78 petition here were to be successful and the state Supreme Court were to annul the APA board’s vote, it’s unclear what would come next, and whether the APA would re-vote on whether the project should be sent to an adjudicatory hearing.

This Article 78 delay is separate from the adjudicatory hearing’s delay until 10 a.m. on Wednesday, April 22 at the APA’s Ray Brook headquarters. That decision was made by Greenwood, as the hearing officer. Norfolk had requested that Greenwood delay the hearing, in part, to give sufficient time for the Article 78 proceeding to play out in state Supreme Court.

Now that it’s been delayed nearly until just two days before the actual APA adjudicatory hearing is currently scheduled to begin, the latter may be pushed back further.

Norfolk’s petition alleges that Holt, as one of the APA’s 11 board members, had a duty to recuse himself from the board’s deliberation and vote to hold an adjudicatory hearing, and failed to do so. Holt was an Adirondack Council board member from 2022 to 2025. Adirondack Council is an environmental advocacy group that opposes the howitzer proposal and is one of the adjudicatory hearing parties.

Holt wasn’t the only thrust of Norfolk’s petition. He also alleged that the APA, presumably through its counsel and staff, had an obligation to advise or otherwise require Holt not to participate in the matters related to the adjudicatory hearing. By failing to do so, Norfolk alleged that the APA “breached its ethical and lawful duty,” adding that was further sullied when the agency took “affirmative steps to implement the hearing determination passed with the involvement and vote of a member with a clear conflict of interest,” referring to Holt.

The petition also appeals Rice’s denial of Norfolk’s challenge to disqualify Greenwood. Norfolk previously argued that Greenwood’s employment with the Adirondack Council as a policy analyst from 1993 to 2000 constituted a bias, conflict of interest and an appearance of impropriety.

Norfolk requested that McGahay immediately stay all proceedings related to the adjudicatory hearing, including the several pre-hearing motions currently before Greenwood. She declined to do so — at least until the Article 78 hearing gets underway.

In an ultimately unsuccessful Feb. 10 letter urging Greenwood not to delay the hearing, Paul Van Cott addressed the merits of Norfolk’s Article 78 proceeding, calling them baseless. Van Cott is one of the attorneys representing Adirondack Council in the adjudicatory hearing.

“The prong of the Applicant’s Article 78 seeking your disqualification based on your employment with the Adirondack Council two decades ago has no support in law or fact,” he wrote. “And the prong seeking APA Commissioner Holt’s recusal has no basis in law or fact because he had no role whatsoever in the staff-led Adirondack Council decision to submit public comments to APA in opposition to the Application while he was a Council board member.”

Van Cott noted that McGahay did not, in her order, require that the adjudicatory hearing be paused in advance of her hearing, and that it would be wrong for Greenwood to do so.

“Unless and until the (state Supreme) Court considering the Applicant’s motion for a stay of the hearing rules otherwise, there is no reason to adjourn the APA-ordered hearing,” he wrote. “We respectfully submit that there is no proper basis for you to essentially usurp the role and function of the Court which, at the Applicant’s request, is considering whether to grant a preliminary injunction preventing the commencement of the APA hearing until the Article 78 proceeding is decided.”

Greenwood, in his revised scheduling order, did not explicitly provide reasoning for the decision to delay the adjudicatory hearing. Greenwood was also considering a motion from the Adirondack Council to remove Norfolk from the hearing. Norfolk had drafted a rebuttal and Greenwood said he would rule on this by Feb. 10, although that appears to be impacted by the hearing delay, as no ruling has been posted. It’s unclear when that will come.

Despite its name, in New York, the state Supreme Court is a trial-level court. It has two levels of appeals courts above it, the intermediate Appellate Divisions and the state Court of Appeals — akin to the U.S. Supreme Court in the federal judiciary.

McGahay’s ultimate ruling on this Article 78 petition could be appealed to the Appellate Division by the losing party, whether it’s Norfolk and Hopmeier as the petitioner, or the APA, Rice and Holt as the respondents, potentially causing further delay.

While the howitzer hearing remains largely on hold for now, the APA board is still set to consider Norfolk’s appeal concerning one of Greenwood’s earlier rulings at its Thursday meeting. Norfolk contends that Greenwood erred in allowing Adirondack Wild: Friends of the Forest Preserve to become a hearing party because, as Norfolk alleges, its application was insufficient.

While the state Supreme Court is the venue to challenge the hearing in its entirety, the APA board is tasked with deciding on appeals made within the hearing itself by any of the parties against Greenwood’s decisions.

Hopmeier is seeking an APA permit for a portable 155mm howitzer barrel assembly that is proposed to be placed on a 100-foot-by-100-foot crushed gravel pad and test-fired at a property in the town of Lewis. Each test would fire a steel projectile into a target area. No explosive warheads are proposed to be used. The howitzer assembly is proposed to be fired 30 times per year on weekdays between 10 a.m. and 4 p.m.

Adjudicatory hearings are the only way for the APA to deny or substantially modify an application that is deemed complete, which Hopmeier’s was on Sept. 26, 2025. APA staff recommended to the agency’s board that it hold an adjudicatory hearing for this project, though the board was not obligated to follow this. The vote was unanimous, and had Holt recused himself, the project most likely would have gone to an adjudicatory hearing. That action only requires a simple majority vote from the board.

For more information from the APA on the howitzer proposal and the various exchanges between the parties that comprise the hearing record so far, visit tinyurl.com/mpdramry. For case filings on the Article 78 proceeding from the state’s court system, visit tinyurl.com/mr49p3aa.