APA’s Bias Against Public Hearings Violates Their Mission

APA’s Bias Against Public Hearings Violates Their Mission

by Dave Gibson

The bias of Adirondack Park Agency executive staff against holding Agency public hearings is right out in the open, again, thanks to a recent article by Adirondack Explorer reporter Zachary Matson.  There is no reason for APA staff to hide their bias against adjudicatory hearings since the APA members appear united in their agreement with that bias.  The rationale Ms. Sarah Reynolds, on behalf of the executive staff, repeatedly makes is:

Public hearings, Reynolds is quoted by Zachary Matson as saying, constitute “trauma,” and “trials,” and “consume enormous amounts of time and energy for all involved.”

Second, she argues that hearings are unnecessary.

Part of the purpose of APA public hearings is to publicly present sworn, expert witness evidence about complex, controversial applications that would inform APA judgements about the potential of undue adverse impacts of a development on the resources of the Adirondack Park.

Hearings are unnecessary, she states, because staff have already uncovered all the necessary information necessary during normal project review with the full cooperation of applicants.

In fact, Ms. Reynolds argues, the mere threat of a public hearing is sufficient to get all applicants to cough up the necessary information to render such a judgement. So, hearings become unnecessary, and the time, energy and “trauma” incurred by hearings are avoided.

Adjudicatory hearings could last months or even years, she claims. The hearings are required when “substantive and significant issues” are missing from the record presented to the board or if the board wants to deny an application.

In fact, the latter hardly ever happens. For more than twenty years, to my knowledge only one project has ever been denied after a hearing.  Hearings did not take years to complete, as she claims. As for the APA staff missing substantive and significant issues, Reynolds claims that never happens.

In fact, she states on behalf of the staff that when applicants are reluctant to provide requested information or alter a planned project, the mere specter of a hearing can foster more cooperation with staff requests. Reynolds states. “We have gotten pretty good about going through this with an applicant and explaining what’s going to happen if staff presents to the board a record that does not look approvable or does not look complete.”… “Applicants have listened, because no one wants to go through this. The enormity of what this adjudicatory-style hearing is, I think has helped prevent hearings from happening.”

On her first point, I wonder how she and other Agency executive staff  arrive at their argument that hearings are enormous and burdensome since only one project, the Adirondack Club and Resort (ACR), has been called to an adjudicatory public hearing in her entire APA career, that one being in 2007, convened in 2010-2011  after three years of failed “mediation.”

Sarah Reynolds, associate counsel of the Adirondack Park Agency, at the November 2023 meeting in Ray Brook. Photo by Gwendolyn Craig
How does Reynolds and the rest of the APA executive staff, most of whom were not employed back when the ACR hearing took place, have the knowledge and experience to label any and all APA public hearings as enormous, traumatic “trials” which “consume enormous amounts of time and energy for all involved?”

In brief, as they have not had experience with adjudicatory hearings, how do they know that they are so burdensome?

More to the point, why do they refuse to acknowledge that public hearings have the benefits of uncovering information needed to reach a stronger, more resource protective permit decision?

In fact, APA held about 150 public hearings from 1973 through the ACR hearing in 2011. That averages about three per year during APA’s first four decades. Most of these, including the ACR hearing, consumed just several months of sworn testimony, not years as Ms. Reynolds claims.

It is quite true that each hearing required staff time to schedule the hearing, sign up a law judge to participate, delineate the issues to be heard, arrange the hearing venues, produce staff testimony, and pull together the hearing record as the basis for Agency members to render a final determination.

While this all takes time, does it constitute “traumatic” “trials” which “consumed enormous amounts of time and energy”? No.  I participated in several APA hearings from 1987-2011. They were well run, efficient, took a few months (not years) and led to more informed APA decisions and project conditions than would otherwise have occurred without a hearing. To my knowledge, only one of those adjudicatory hearings led to a project being denied.

Herein lies key questions.  If occasional public hearings lead to conditions more protective of Park resources, which is the APA’s legislated mission, and if projects meet the regulatory criteria for a hearing, why does the executive staff persist in not recommending them? And why have all the members serving on APA since 2011 not insisted on holding them occasionally for especially complex project applications?

One reason is that under the APA Act project denial is only authorized following an adjudicatory public hearing. APA does not even wish to contemplate project denial, so it’s far easier to eliminate the possibility by not holding hearings. Of course, APA regulations also state that adjudication should be considered in order to impose substantive conditions or modifications of a complex project. No need for that either, say the APA executive staff, who claim that staff are now uncovering all the information and imposing all the conditions they need to deem a large, complex, controversial project to have no undue adverse impacts and to recommend approval through normal project review.

Apparently from 1973 to 2011 staff, who held 150 hearings in that period, could not reach these same conclusions for major projects without a hearing.

Post 2011 it seems staff suddenly became newly capable of unearthing all of the information they need to assess and condition large, regional projects so that there are no undue adverse impacts to the Adirondack Park, all through normal project review. No need for hearings.

If that is so, then why did the staff  not flag the failure of the ACR project sponsors to detect, over the course of 5 years of normal project review, any birds or wildlife living on 6200 acres in Tupper Lake? The so-called wildlife survey the applicant conducted over five years  uncovered precisely six birds and a few white-tailed deer. That was laughable.

It took the ACR public hearing and just two nights of surveying on public roads to learn, through outside experts like Dr. Michael Klemens, that at least a dozen amphibians inhabited just a small portion of the 6200 acres. So much more wildlife diversity could have been uncovered if only the APA staff had insisted upon a comprehensive bird and wildlife study during five years of regular permit review.  It took a public hearing to require the applicant to undertake a more comprehensive amphibian survey – after the fact of permit issuance.

Fast forward to 2019-2021. APA staff were tasked with reviewing a 32-lot subdivision at Woodward Lake near Northville with special, large subdivision guidelines they claimed were more protective of natural resources and directed to achieve conservation design principles. So, why was undeveloped Woodward Lake permitted in 2021 to be completely ringed by new housing and septic tanks? After APA issued that permit, conservation design expert, landscape architect Randall Arendt, told the Adirondack Explorer that “it looks like a conventional subdivision—not one built to conserve its waters and other unique assets. The plan could have better protected the lake by pulling lot boundaries away from it and keeping a vegetated belt with trails for the residents to access the water,” he said. Could a public hearing that involved Arendt and other experts have resulted in better, more resource protective project conditions, including a truer approximation of conservation design that could better maintain the quality of Woodward Lake over the long term? I think so.

At Lake George in 2022, APA refused to hold a hearing over the use of the herbicide ProcellaCOR and claimed that its review was so thorough that it amounted to the equivalent of hearing evidence.  Apparently not. A Supreme Court judge found that conclusion incorrect. The judge considered the factors for a hearing, including the unique qualities of the lake, high degree of public interest, disagreement among aquatic limnologists about the possible impacts, and the possibility that the herbicide could disperse widely on the lake and might affect nontarget plants as among the reasons why APA should have held a hearing.

Couldn’t APA staff have resolved these questions under its normal permit review? Highly qualified lake scientists had reached very different conclusions about the herbicide’s impacts and presented strong arguments for their respective cases. That is precisely a reason for adjudication. A public hearing with sworn witnesses could have been of great assistance to APA in narrowing that scientific disagreement and in reaching a determination in the matter that would be protective of Lake George’s surface waters and avoid undue adverse impacts.  That is why adjudicatory hearings were considered a fundamental component of APA’s rules starting in1973.  The current APA arbitrarily and wrongly concludes those rules no longer apply.

Now, we come to the proposed large commercial marina at little Lower Fish Creek Pond, just eighty or so acres, where the marina is proposed to berth 92, 22-foot watercraft on docks extending far out into that channel.  That navigable channel connects to other waterbodies in the Saranac Lake Wild Forest. Impacts from the proposed marina on that entire aquatic ecosystem are unstudied. The marina’s proposed dock length and width exceed what even the Lake George Park Commission allows on Lake George, which is 28,000-acres in size. NYS Department of Environmental Conservation has issued the marina applicant two notices of incomplete application. APA issued three such notices. There is a significant level of public interest and there are many unanswered questions, including what previously existed at the old Hickok’s boat livery – in other words, the preexisting conditions are still uncertain.

When basic project information like documented baseline conditions has not yet been produced  after five notices of incomplete application, much less the needed carrying capacity study of the Pond and its channels to accommodate more and larger watercraft without undue adverse impacts, APA is still unable to admit that normal project review has failed to uncover key information and that all the criteria for holding an adjudicatory public hearing apply to this project.  To date, APA is ignoring the appeals for a hearing from almost one hundred neighbors to the marina, from Adirondack Wild, Upper Saranac Foundation, Protect the Adirondacks, and others. APA has the marina on its May 17 Ray Brook meeting agenda.

It comes down to the fact that the Governor’s office and the APA executive staff are satisfied with APA’s work products. APA members are satisfied. APA is entirely self-satisfied – and, in far too many instances, failing its legislated mission and the public interest in the Adirondack Park.

Concerning the failure of APA to date to hold a public hearing about the herbicide application on Lake George, I conclude with parts of an editorial dated May 5, 2024, in The Sunday Gazette:

“Wouldn’t (a hearing) alleviate the public’s concerns that the agency is rushing into a potentially harmful decision and also satisfy members of the public that the agency did all it could before making its decision? The final question the APA should be asking itself is this: Isn’t Lake George worth the extra effort? We think it is. And a lot of other people do, too.”

Photo at top: Scene from the last APA hearing concerning the ACR, April 27, 2011 in Ray Brook. Administrative Law Judge Dan O’Connell presiding. Provided photo.