By David Gibson, Managing Partner, Adirondack Wild
APA failure to hold public hearings has consequences
Last April, Adirondack organizations wrote to the Adirondack Park Agency asking APA to rediscover their discretionary power to hold adjudicatory public hearings on particularly complex, controversial Adirondack land use projects. No response to our joint letter has been forthcoming from the APA. However, a rather resounding response has just come from a member of our state’s judicial branch.
Only one formal APA adjudicatory public hearing has been held in recent memory, and that was in 2011 and concerned the Adirondack Club and Resort in Tupper Lake. Ever since, APA staff have refused to recommend that the board take any land use and development to public hearing. And no APA board has produced the required six votes to do so.
The April 2022 letter to the Agency’s chair and all of its members, signed by Adirondack Council, Adirondack Wild, Environmental Advocates NY, the Sierra Club Atlantic Chapter, and by former APA member Chad Dawson concluded that it is important for Agency executive staff, Agency members and designees to bring this out into the open “so that the possibility again exists to bring a future application to adjudication, and thus to impose substantial conditions, major modifications or, as may be warranted, project denial without prejudice to the applicants.”
Legally, the only path for denial or even major modifications of any APA permit is through an adjudicatory public hearing. That severe (and in my opinion, wrong) limitation on the APA’s powers to deny has been the law for fifty years. About 150 adjudicatory public hearings, meaning those where evidence is sworn, examined and cross-examined before a law judge, were called by the APA from 1973 – 2010. Only one has been held since.
As a result of evidence produced at these 150 or so hearings the vast majority resulted in modified projects, not in denied projects. One that APA denied following a hearing was the application of the herbicide SONAR into Lake George in 2002 to control the spread of Eurasian watermilfoil.
About this denial, the APA reported in its 2003 annual report that “the Agency denied a wetlands permit to the Lake George Park Commission and Office of General Services for a demonstration project for control of Eurasian water milfoil involving application of the aquatic herbicide SONAR in selected sites in Lake George. This decision was based on the lack of any clear consensus by scientific experts who testified during the public hearing process.”
That statement in the APA annual report is interesting in that the APA in 2002 decided that while scientific consensus did not exist at the public hearing, there was sufficient scientific evidence presented such that APA could not, with confidence, issue a finding of “no undue adverse impact” to the natural, scenic, aesthetic, ecological, wildlife, historic, recreational or open space resources of the park from the use of herbicide SONAR. Not being able to issue such a finding, APA correctly denied the application.
Speaking of herbicide applications, NYS Supreme Court Judge Robert Muller recently issued a ruling vacating the APA’s 2022 permit authorizing, with conditions, the Lake George Park Commission to apply the herbicide ProcellaCOR into several Lake George bays in an effort to eliminate Eurasian watermilfoil. Judge Muller cited the failure of the APA to hold a hearing as one of many reasons why he vacated the permit.
First, the Judge quoted the APA Act, such that “the determination of whether or not to hold a public hearing on an application shall be based on whether the agency’s evaluation or comments of the review board, local officials or the public on a project raise substantive and significant issues relating to any findings or determinations the agency is required to make pursuant to this section, including the reasonable likelihood that the project will be disapproved or can be approved only with major modifications because the project as proposed may not meet statutory or regulatory criteria or standards. The agency shall also consider the general level of public interest in a project. No project may be disapproved without a public hearing first being held thereon.” – APA Act § 809(3).
Many substantive and significant issues were raised in public comment by noted Lake George scientists, as well as citizens and a municipality, Town of Hague. The level of public interest generated by the application was high. Significantly, Judge Muller’s court found that the APA staff presentation of the issues was biased in favor of the applicant, making it difficult if not impossible for the decision-making board to render a finding of no undue adverse impacts.
The Judge then listed the APA regulatory criteria upon which staff and/or the board may recommend a public hearing, including these:
- project size and complexity measured by cost, area, effect on localities or uniqueness of resources affected. Judge Muller wrote that “all parties appear to agree that Lake George, classified AA-S for its surface waters offers a uniqueness of resources not found in other lakes, which resources will be affected by ProcellaCOR.”
- degree of public interest as evidenced by communication in Agency files. The Judge wrote that considering 325 comment letters received, 300 of which opposed the use of the herbicide, “the degree of public interest cannot be disputed.”
- the presence of significant issues. The Judge’s decision cited many significant issues including the possibility that the herbicide could not be contained in the two bays and would disperse more widely on the lake, and the possibility that the herbicide might have adverse effects on non-target plants that have proven extremely important to maintaining the lake’s water clarity and quality, among others.
- the possibility that hearing information would aid the agency in its review, a criteria about which Judge Muller noted that “information presented at a hearing would likely be of assistance to the APA in its review.”
Given that most criteria for holding a hearing were met, the Judge wrote “the Court finds that the APA issuance of a permit without first holding a public hearing was arbitrary and capricious, again noting that perhaps the (APA) board would have chosen to hold a public hearing had it been presented with all of the information both for and against the herbicide applications.”
Because the APA staff failed to present all the natural resource and public health-based issues and legal findings relating to the use of this herbicide in Lake George, the Judge ruled that the APA board was denied a comprehensive understanding of the permit application. This was deemed irrational, and further basis for the Judge to vacate the permit.
That a failure to hold a public hearing was one of the many bases for his decision is extremely important for Lake George and for the entire Park. Had a hearing been held at Lake George, or at White Lake for the new granite quarry, also permitted in 2022, the very expensive and conflict-inducing choice to go to court to resolve disputes – choices made by the Lake George Association and others – might not be necessary. Public hearings under the APA Act require a full, comprehensive record of sworn, factually based evidence from all parties before a neutral law judge, a comprehensive evidential record that the APA must use as the sole basis for its final determination to permit, permit with conditions or deny.
Far more likely than not, public hearings help to ensure that the largest, most complex, most controversial Adirondack Park land use and development disputes are not based upon a lack of evidence, but on a fair weighing and evaluation of the merits of that evidence in the context of the APA’s laws. Courts of law are, usually, not the best venue to achieve this. The APA, charged with developing long range park planning and with insuring optimum overall conservation etc. of the resources of the park, are the right venue, and precisely the one that the state legislature established fifty years ago.
Our group letter of April 2022 outlining all of this and urging greater use of public hearings at the APA has apparently fallen on deaf ears. However, Judge Muller’s ruling has most definitely not since it cannot be ignored, with consequences that must reverberate inside and outside the Agency for some time to come.
Photo at top of Lake George by Ken Rimany