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McHugh, Keith (Lens Lake) - Ruling 2, April 26, 2002

Ruling 2, April 26, 2002

NEW YORK STATE : ADIRONDACK PARK AGENCY

In the Matter of the Application of Keith McHugh for a permit to construct a single-family dwelling on Lens Lake, Town of Stony Creek, County of Warren

SUPPLEMENTAL RULING ON ISSUES AND PARTY STATUS

APA Application No. 2000-158

SUMMARY

This supplemental ruling addresses further proceedings in connection with the initial ruling in this matter on issues and party status, issued on February 11, 2002 (the "Initial Ruling"), which is incorporated herein by reference. The Initial Ruling considered the requests for party status, as well as the issues that have been proposed for adjudication in connection with the Adirondack Park Agency's ("APA" or the "Agency") request for a public hearing on the application of Keith McHugh (the "Applicant")(1) for a permit to construct a single-family dwelling on the shores of Lens Lake, in the Town of Stony Creek, Warren County.

The Applicant proposes to construct a single-family dwelling on a 7.89 acre pre-existing vacant parcel located on the north side of Lens Lake Road and the southerly shoreline of Lens Lake (the "Lake"), in the Town of Stony Creek, Warren County. The site is bounded on the east and west by private property, northwesterly by Lens Lake and lands of the State of New York (the Wilcox Lake Wild Forest), and to the south by Lens Lake Road. Lens Lake Road runs parallel to Lens Lake. Lens Lake is an approximately 102-acre lake which is a part of the Wilcox Lake Wild Forest. The project is located in an area designated as a Resource Management land use area on the Adirondack Park Land Use and Development Plan Map, and is a Class B regional project pursuant to Section 810(2)(d)(1) of the Adirondack Park Agency Act (the "Act").

PROCEEDINGS

These proceedings are held pursuant to Title 9 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("9 NYCRR"), Part 580. Pursuant to Section 580.6, "the agency staff, while not a party to the hearing, shall have the right to participate fully in the hearing and shall act as an advocate for a full and complete record upon which an informed decision can be made." Pursuant to Section 580.5 of the regulations, the Applicant and any landowners whose property is within 500 feet of the project site are parties to the proceeding. William Hutchens, who owns land at the southern end of the Lake adjacent to the Applicant's parcel, is therefore a party to these proceedings as of right.

The Green Haven Fish and Game Club (the "Club"), an entity that owns property within 500 feet of the project site, appeared at the legislative hearing and issues conference through one of its members, John Studer. Mr. Studer indicated that the Club wished to participate in the hearing. As a result, the Initial Ruling stated that the Club would be a party to the hearing as of right, subject to the Club's providing a resolution evidencing Mr. Studer's authority to appear on the Club's behalf. Following the issuance of the Initial Ruling, Robert Haight, the President of the Club, sent an undated letter, received at the Office of Hearings on February 22, 2002, advising that Mr. Studer did not represent the Club. Mr. Haight's letter also stated that the Club was not in favor of development along Lens Lake Road or around Lens Lake, nor was it in favor of any structure being visible from Lens Lake. Finally, the letter stated that the Club was "not in favor of party status."

Pursuant to Section 580.7 of 9 NYCRR, any persons permitted to intervene are granted party status. The proposed intervenors included The Adirondack Council, the Residents' Committee to Protect the Adirondacks ("RCPA"), and Ms. Carol LaGrasse. All requests for party status were timely filed. The petitions for party status of the RCPA and Ms. LaGrasse were unopposed. All three of the proposed intervenors were granted party status in the Initial Ruling.

POSITIONS OF THE PARTIES

By letter dated February 21, 2002, counsel for William Hutchens filed a timely appeal of the Initial Ruling, contending that the hearing officer did not have the power to limit the issues to be considered at the adjudicatory hearing, absent an agreement or stipulation among the parties. Counsel argued further that even if the hearing officer has such authority under the regulations, the Initial Ruling improperly limited the issues, and did so in a manner contrary to the Agency's direction that a public hearing be held to fulfill the Agency's obligation to consider all relevant statutory criteria in making its determination.

Specifically, counsel for Mr. Hutchens objected to that portion of the Initial Ruling that appeared to limit the issues for adjudication, with respect to the Applicant's proposed building site, to visual impacts and the effect of the proposed project on the open space character of Lens Lake and the Wilcox Lake Wild Forest Area. Hutchens' Appeal, at p. 1; see Initial Ruling, at p. 9. With respect to alternative sites, the Initial Ruling stated that adjudicable issues will also include potential impacts on water quality, wetlands and bog ecosystems. Id. Counsel for Mr. Hutchens contended that these issues should also be considered in assessing the impacts of the proposed building site. Despite this objection, counsel stated further that if, in fact, the issues to be considered with respect to alternative sites will also be taken into account in connection with the proposed site, the appeal would be withdrawn. Hutchens' Appeal, at p. 2. The appeal also requested that Mr. Studer be deleted from the service list, in light of the correspondence received from Mr. Haight concerning representation of the Club.

After the time to file appeals had passed, Ms. LaGrasse submitted a letter, dated February 26, 2002. Ms. LaGrasse stated that she had no objection to Mr. Studer being deleted from the service list for this action, but asked "that the record be corrected insofar that the record should show that the Haight letter wrongly implies that Mr. Studer lives far from the [Club] on Lens Lake, and insofar that the Haight letter presents no evidence of Mr. Haight's authorization to speak for the club." Ms. LaGrasse also commented upon the Initial Ruling's granting of party status to The Adirondack Council, indicating that she had not received a copy of the additional documentation, referenced in the Initial Ruling with respect to that organization's corporate structure, that was submitted pursuant to 9 NYCRR Section 580.7(a)(1). Ms. LaGrasse maintained that, as a result, she was unable to ascertain from the Initial Ruling the exact nature of the entity in question.

At the direction of the hearing officer, a conference call was held on April 10, 2002. At that time, counsel for Staff indicated that a response by the Agency to Mr. Hutchens' appeal would be forthcoming. With respect to the threshold issue raised on appeal, i.e., whether the hearing officer has the authority to limit issues, John S. Banta, counsel for the Agency, advised by letter dated April 12, 2002 that "I have determined that only an interlocutory appeal of party status, not issues, is cognizable under the Agency regulations, and consequently, no interlocutory appeal of issues will be entertained at this time." Mr. Banta went on to state that, by copy of the letter to the service list, he was notifying the parties that "they should proceed as [the hearing officer] directed in the April 10 conference call" and noted that the Agency's regulations provide for post-hearing motions, and final briefing with respect to any issue of law, motions, rulings, or positions taken. See 9 NYCRR § 580.14(b)(9)(ii).

During the conference call, it was agreed that the participants would file any responses to the second point raised in Mr. Hutchens' appeal by April 19, 2002. In addition, a tentative hearing date of June 11, 2002 was set, and the participants agreed to hold a conference call in advance of the hearing to address the order of proceedings, pre-filed testimony, expert witnesses and the testimony to be provided by those experts, as well as any other preliminary matters.

The Applicant's response reaffirmed the constitutional claims raised in its initial motion with respect to the hearing process, and asserted that the hearing officer has the inherent authority to limit issues. The Applicant argued further that the Initial Ruling was tantamount to an interlocutory order, and thus, no appeal would lie until a final determination issued. Finally, the Applicant contended that, even if an appeal were appropriate at this procedural stage, that appeal is not properly before the Executive Director of the Agency.

The Adirondack Council wrote to clarify the statements made by its representative at the issues conference, noting that the Council took the position that its concerns with respect to visual and aesthetic impacts, potential impacts to bogs, wetlands, and water quality, as well as the failure to examine alternative building locations and designs, would apply to the proposed site, as well as the identified alternative locations for the proposed project. Agency Staff's response noted that there was likely some confusion as to the number of "alternatives" in this case, because of the Survey Map's designation of a "Proposed House" and three alternatives. According to Agency Staff, there are, in fact, four alternatives, one of which is preferred by the Applicant. Staff went on to assert that none of the proposed intervenors had provided "a specific explanation of how and why any of the 'alternative' sites raise issues with respect to the wetlands, water quality or the floating bog (in addition to the aesthetic issue)." Nevertheless, Staff maintained that the parties "should be required to substantiate their very general statements on the issues so that the hearing can be expedited and focused."

The Residents' Committee to Protect the Adirondacks did not file a response to Mr. Hutchens' appeal. By letter dated April 19, 2002, Carol LaGrasse reiterated her contentions that the Agency only has the authority to regulate aesthetics, not visibility, and that consequently, visibility should not be adjudicated. As this submission does not respond to Mr. Hutchens' appeal, those arguments will not be considered herein, but are incorporated into the record of this proceeding.

DISCUSSION AND RULING

The APA Regulations provide that the hearing officer shall grant a proposed intervenor's petition for party status if the petitioner can demonstrate "a material social, economic or environmental interest which is likely to be affected by the Agency decision concerning the project," or if a grant of party status is "necessary to or would further the purpose of the hearing." 9 NYCRR §§ 580(a)(5) and (d). As the Initial Ruling found, all of the proposed intervenors, including The Adirondack Council, met this standard, and have been granted party status.

The issues raised by The Adirondack Council with respect to wetlands, bogs, and water quality impacts are adjudicable with respect to the proposed project, as one of the alternatives before the Agency, as well as in connection with the remaining three alternatives. Nevertheless, in order to focus and refine these issues, as well as the visual issues and issues relating to the open space character of Lens Lake and the Wilcox Lake Wild Forest Area, the parties will be required to identify the experts that each party expects to call, as well as the substance of that expert's testimony. The parties are directed to exchange witness lists, including a summary of testimony to be provided, by service on all parties in-hand on May 10, 2002.

In addition, pre-filed testimony will be required, consistent with Section 580.14(f) of 9 NYCRR. Pre-filed testimony is to be served on all parties by May 24, 2002. The parties shall ensure that all expert disclosure and pre-filed testimony is transmitted to the hearing officer and all others on the service list. No submissions by telecopier will be allowed or accepted.

In light of the correspondence received concerning the Green Haven Fish and Game Club, the Club will be removed from the service list for this action, unless an objection is raised in writing by May 17, 2002. By May 10, 2002, The Adirondack Council is directed to mail Ms. LaGrasse a copy of the supplemental documentation concerning its corporate structure provided to the hearing officer by letter dated October 1, 2001.

The adjudicatory hearing in this matter will convene at 10:30 a.m. on Tuesday, June 11, 2002 at the Stony Creek Town Hall. The Applicant is requested to make arrangements for use of the Town Hall, and to secure the services of a stenographer to record the proceedings.

Finally, the parties are requested to advise this office of their availability for a conference call to be held during the week of May 27-31, 2002. The conference call will be initiated by this office.

/s/
Maria E. Villa
Administrative Law Judge

Albany, New York
April 26, 2002

To: Attached Service List

Daniel T. Fitts
Executive Director
Adirondack Park Agency
P.O. Box 99
Route 86
Ray Brook, New York 12977

1. Mr. McHugh purchased the parcel from the original applicant, Michael Black/Cold River Properties.

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