Posted by: Patricia Salkin | September 25, 2014

NY Appellate Court Upholds the Granting of an Application to Build a Resort in Adirondack Park

In 2004, respondents Preserve Associates, LLC, Big Tupper, LLC, Tupper Lake Boat Club, LLC and Nancy Hull Godshall, (hereinafter collectively referred to as the “developers”), submitted an application to respondent Adirondack Park Agency (“APA”) for approval of the proposed Adirondack Club and Resort to be located on privately-owned land in the Town of Tupper Lake, Franklin County. The 6,235–acre project site included and surrounded the closed Big Tupper ski area and was bordered by the Village of Tupper Lake, State Route 30, and a municipal golf course. The application was amended and supplemented by the developers several times until it was deemed complete by the APA in 2006. In 2007, the APA ordered that an adjudicatory hearing be conducted and identified the issues for determination. The developers submitted updated application information in 2010. Shortly thereafter, the APA issued an extensive final order and drafted 14 permits for the various aspects of the project. As approved, the project included 659 residential units, a 60–bedroom inn, a downhill ski area, a marina and valet boat launching service, over 15 miles of public and private roads, wastewater treatment systems and various recreational amenities and maintenance facilities. Various environmental organizations brought this article 78 proceeding to challenge determination of Adirondack Park Agency, which approved developers’ application for resort to be located on project site within Adirondack Park. The court granted the petitioners’ motion for permission to appeal from Supreme Court’s order denying their motion for leave to conduct discovery.

In reviewing the petitioner’s substantive claims, the court noted that judicial review of the APA’s determination does not require overwhelming evidence or even a preponderance of the evidence, but merely relevant proof that a reasonable mind would accept as adequate to support a conclusion. The court first found that the APA considered the limited time period during which withdrawals from Cranberry Pond would be permitted to occur and the evidence of the prohibitive cost of using Tupper Lake as a water source during the initial phases of the project. Accordingly, the APA could rationally conclude that a permit to use Cranberry Pond was authorized because it was the only alternative which reasonably could accomplish the applicant’s objectives. The court then addressed the petitioner’s claim that the development would adversely affect the wildlife; in the absence of any evidence of protected species on the project site, the court held it was rational for the APA to approve the permit application without requiring the developers to conduct a comprehensive wildlife survey. Next, the court found substantial evidence also supported the APA’s approval of the residential development. Although the APA found that the project would necessarily eliminate some commercial timber harvesting activities on the resource management lands, it rationally determined that the development and implementation of a forest management plan as required by the permit for the Large Eastern Great Camp lots would “lead to a healthy working forest.”

Petitioners then claimed that the project would have an undue adverse impact on the nearby state-owned, DEC–operated boat launch at Tupper Lake. However, because the launching and boarding of boats by the valet service would permit the project’s residents and guests to use the boat launch in the same manner as any other member of the public, the court found that this decision for approval was also supported by substantial evidence by the APA. As to the fiscal impact claim, the court found that there was substantial evidence that, even if the developers were to default on the FCIDA bonds, there would be minimal risk to the local municipalities. Finally the petitioners’ procedural claims were similarly found to be without merit by the court because: the order approving the project contained over 100 findings of fact, followed by the APA’s conclusions of law; the petitioners failed to make any written comment with respect to the completeness of the hearing record and cannot argue that they were refused the opportunity to do so; and the APA extended the project’s “in existence” time period to 10 years from the date of issuance of the final order and determined that it will consider this project to be in existence upon conveyance of the first residential building lot authorized by a permit. Accordingly, the court affirmed the lower court’s holding, dismissing the petitioners’ claims.

Protection of the Adirondacks! Inc v Adirondack Park Agency, 990 N.Y.S. 2d 643 (A.D. 3 Dept. 7/3/2014)

The opinion can be accessed at: http://law.justia.com/cases/new-york/appellate-division-third-department/2014/516901.html


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