By David Gibson, Managing Partner, Adirondack Wild
Did the APA Learn a Lesson?
Did the APA learn a lesson in May? Apparently so, though only one person around the APA’s table would say so in public. That admission came from the non-voting representative of the Adirondack Park Local Government Review Board, Jerry Delaney. “We’ve had a lesson in how important the people take their opportunities for public comment,” Mr. Delaney said. I am glad he said it because I suspect most were thinking it.
The senior APA staff, hit with hundreds of negative comments from diverse directions since March, including from some of its own members and from groups like mine (Adirondack Wild) and the Review Board, caved in May on their intention in March to ram through restrictions on public comment opportunities and subjecting future Agency policy and guidance documents to rapid decisions during a single meeting.
I was glad the staff caved. Act in haste, regret at leisure. It was certainly audacious of the senior staff to think over the winter that cutting down on public comment opportunities and on the time for consideration for changes to APA policy and guidance documents would not be noticed and needed no notice. The question is, why did they propose such changes to begin with?
I think the answer to that boils down to the evolution of the APA at its half-century mark. For at least a decade, perhaps longer, the hundreds of annual APA applicants are perceived as the most important stakeholder or agency client for the APA senior staff, and not the broader public interest and concern of millions of New Yorker for the Adirondack Park and for the APA itself.
These broader public interests in the success of the Agency’s regional state and private land plans and environmental protections are expressed multiple times in Section 801 of the APA Act of 1973. However, as time has marched on APA at the senior staff level has perhaps less interest in those public ideals, however enshrined in law, and more interest in the time clocks and time pressures of responding to applicants, large and small, private and public. APA has been allowed to become by multiple governors a reactive permitting agency, not the Act’s intent as long-range planner of natural and wildland resources of vast interest to the entire state, taking into account many local and economic considerations.
Governor Andrew Cuomo made it quite clear when his administration insisted the APA put up “The Adirondack Park Open for Business” signs in its meeting room in 2011. That banner was public proclamation of what was privately understood, that applicants are number one, the broader public interest entirely secondary. Public comment opportunities began to be perceived as an irritant, all too easy to blame for holding up business or as unfair to applicants.
The irritation of some APA staff and some APA members could be palpably felt in 2021 and 2022 when articulate residents of Forestport, White Lake, North River in Johnsburg, and from Lake George appeared during public comment to tell the APA about the negative impacts on their quality of life and environments of a new granite quarry application at White Lake, an expanded Barton garnet mine in North River, or new herbicide placed in bays of Lake George.
These Park residents took the time and effort needed to articulate information as well as deep concerns about their environments and the potential adverse impacts of these projects locally. It was not easy for any of these citizens to speak, yet their appeals to the Agency were, I sensed, met with defensiveness or irritation or both.
Perhaps these were the comments which came to mind when an APA member Art Lussi defended the proposed public comment restrictions. Quoting the article by Adirondack Explorer reporter Gwen Craig, Art said ““I think it’s much more respectful to a board to have these comments at the end of the meeting, and I think we certainly have always taken them seriously and to heart. I don’t think it’s appropriate to have comments again, where you have two, to six, to 10 presenters, and then all of a sudden we have our regular presenters an hour later. … That’s not professional as an organization, and that’s not professional as human beings.” As to respect for the value of the public comments and for the right of people to express those, those were comparatively less important than their apparent disruption of business, according to this member.
Meanwhile, senior staff defended their March proposal to limit public comment because such comments were “unfair to applicants.” Members of the public might possibly speak of applications before the APA, comments that were “ex parte,” requiring APA to give applicants equal time to respond – this despite longstanding, decades long Agency practice to cut off public comment about matters up for a decision that very day. Agency chairs have done that successfully for years.
APA staff may have resorted to the term “ex parte” as both a legal shield and a spear to, apparently, ward off unwashed (and underappreciated) public comments. However, according to agency law and regulation the term “ex parte” has nothing to do with public comments offered during ordinary public comment periods.
“Ex parte” at the APA actually applies to adjudicatory public hearings, where no party to a formal hearing is allowed to communicate “ex parte” with the hearing officer in connection with any factual or legal issue related to the project except with notice and opportunity for all the parties to participate in the communication. SAPA, the State Administrative Procedures Act, prohibits “ex parte” contact regarding the matters considered at the hearing between “any person or party” and Agency Board members who will make the final decision. APA has not held an adjudicatory hearing since 2011.
Why APA senior staff threw out potential “ex parte” violations when members of the public speak for 3 minutes to the APA is anyone’s guess, but it reflects the overall dominance of APA applicants as client number one. Some Agency members, like designee Brad Austin, defensively noted that APA does not legally have to provide public comment opportunities at all. I guess he was saying that the APA staff’s proposed restriction of comments to the close of the meeting should be viewed as a gift to the public.
Fortunately, members Zoe Smith, Mark Hall, Benita Law-Diao, Chair John Ernst and others in March pushed back politely but firmly. Ms. Smith spoke of the importance of being respectful to the public to continue to allow public comment at the start of Agency meetings. Ms. Law-Diao was concerned that limiting public comment at the close of meetings, time of such endings being so uncertain, sent a negative message that comments were not valued. Chair Ernst said that public comments in the morning could continue to be controlled so that they would not interfere with Agency agendas.
And so, APA did the right thing in the end by sending it all out for public comment, taking their lumps, and ultimately keeping public comment opportunities at the open and close of business, continuing to allow changes in policy to take place only over multiple meetings, and deciding to post the Agency’s meeting agenda two weeks ahead instead of the customary one. That is very helpful. So are the more frequent and somewhat more comprehensive posting of application information on the Agency website.
I think back to earlier APA meetings. The past always appears rosier in hindsight. I recall that Agency member Liz Thorndike stayed late after regular Agency meeting business during 1990-92 to convene a roundtable of public interests, amusingly dubbed “the hostility circle,” to informally explain what the Agency was doing and why, and to hear what was on all our minds about what the APA was doing and why. It was a chance for APA to explain and for the rest of us to blow off of a lot of steam from all directions. It took a lot of fortitude for Liz and the APA staff to allow and to organize, and then to listen to these bull sessions at the end of a long APA meeting, but it worked – in the sense that those who participated got the same information at the same time, and came to view each other as pretty reasonable people who did not wear horns, perhaps because we were all tired and wanted to go home at that point.
I also recall a moment when APA chair Woody Cole called for public comment on a spring or summer, 1989 morning at 10 AM. I was in my seat when up rose Nellie Staves, chair of the Franklin County Federation of Fish and Game Clubs. Nellie went to the ramp of the old APA meeting room, perhaps to appear taller than she was, and to good effect. She forcefully told the APA that it had reneged on a commitment she had received from APA to install taxidermy wildlife mounts at APA’s new Visitor Interpretive Center at Paul Smith’s, just dedicated in May of 1989. Nellie’s comment went on at some length. She made the case why those wildlife mounts, some of which she would donate, would contribute to the educational purpose of the VIC. What would APA do about this, she asked? I recall silence. I sensed Agency embarrassment at being dressed up and down by Nellie Staves. I also recall APA chair Woody Cole expressing some measure of commitment to do as Nellie asked. That might have been a moment when Woody and the other members might have tried to limit public comment opportunities. They did not then, and they made the right decision not to do so this month.
Photo: Members and staff of the Adirondack Park Agency sit around a table listening to a presentation during the March 16 meeting in Ray Brook. Photo by Gwendolyn Craig