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Preserve Associates, LLC (Adirondack Club and Resort) - Memorandum, September 14, 2007

Memorandum, September 14, 2007

STATE OF NEW YORK: ADIRONDACK PARK AGENCY
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In the Matter of the Application to
construct the Adirondack Club
and Resort by:

Preserve Associates, LLC
Applicant.

APA Project No. 2005-100

Memorandum concerning
Applicant's request for Mediation, and
Scheduling Order

September 14, 2007
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Proceedings

In a ruling dated June 14, 2007 concerning the referenced application, I directed Applicant to file a status report by August 1, 2007. Subsequently, with a cover letter dated August 7, 2007, Applicant's counsel provided a status report. In a memorandum dated August 15, 2007, I asked Applicant to clarify its August 7, 2007 status report. Of particular concern was whether Applicant wanted to reconvene the pre-hearing conference on September 21, 2007.

On behalf of Applicant, Thomas A. Ulasewicz, Esq., responded to my request for clarification with a letter dated August 29, 2007.

The August 15, 2007 memorandum provided the pre-hearing conference participants with an opportunity to respond to Applicant's August 7, 2007 status report and Applicant's August 29, 2007 clarification. Since August 7, 2007, I have received correspondence from the following:

  1. Letter dated August 16, 2007 from Marc S. Gerstman, Esq., on behalf of his clients, the Adirondack Council and Little Simon Properties, Inc.;
  2. Letter dated April 28, 2007 (sic) from Peter Bauer1 of the Residents' Committee to Protect the Adirondacks;
  3. Letter dated August 30, 2007 from Don Dew, Jr., President of the Tupper Lake Chamber of Commerce;
  4. Letter dated September 6, 2007 from John W. Caffry, Esq., (Caffry and Flower, Glens Falls, New York), who is legal counsel for the Association for the Protection of the Adirondacks, Inc.;
  5. Letter dated September 10, 2007 from Mr. Gerstman, Esq., on behalf of his clients;
  6. Letter dated September 10, 2007 from Mitchell Goroski, Esq., for Staff of the Adirondack Park Agency; and
  7. Letter dated September 10, 2007 from Christopher A. Lacombe, Esq., on behalf of Staff of the Department of Environmental Conservation.

Applicant's Clarification

In its August 29, 2007 letter, Applicant requests that the referenced matter be referred to the DEC Office of Hearings and Mediation Services for mediation. Mr. Ulasewicz states that he has conferred with his client and its consultants about mediation. Before the mediation begins, however, Applicant has requested clarification about the mediation process and procedures that would be used, the issues that would be mediated, and who would participate in the mediation. At this point, Applicant would consider using mediation to resolve all issues identified in the Board's February 15, 2007 order.

Applicant requests that the pre-hearing conference scheduled for September 21, 2007 be "postponed for approximately 60 days after the later of (i) the date mediation is completed or terminated ... or (ii) the date a decision is made that mediation is not an acceptable process."

Comments

As noted above, Mr. Gerstman filed two letters on behalf of his clients, the Adirondack Council and the Little Simon Properties, Inc. (LSP). In the August 16, 2007 letter, the Adirondack Council and LSP argue that the August 7, 2007 status report provides very little information about the progress made toward furnishing additional and revised application materials. The Adirondack Council and LPS request that Applicant provide a list of the application materials submitted to date so that subsequent filings related to the mitigation will be easily reviewed. Contrary to the assertion in the August 7, 2007 status report, the Adirondack Council and LPS note that Applicant has not approached them about participating in any negotiations since the April 26, 2007 pre-hearing conference, and recommend that all who attended the April 26, 2007 pre-hearing conference should be invited to participate in any future negotiation or mediation.

In the September 10, 2007 letter, the Adirondack Council and LPS acknowledge that meditation may be productive, and consent to participate. The Adirondack Council and LPS recommend that the mediation process should include milestone dates to evaluate the progress of the mediation. They reiterate the importance of allowing the participation of all interested parties.

The letter filed by the Residents' Committee to Protect the Adirondacks (the Residents' Committee) responds to Applicant's August 7, 2007 status report. Since the April 26, 2007 pre-hearing conference and Applicant's August 7, 2007 status report, the Residents' Committee notes that it has not been contacted by Applicant about settlement discussions. The Residents' Committee recommends, however, that any future negotiations should include all parties or their representatives.

According to the Residents' Committee, the referenced project continues to be a "moving target" that must be clarified. The Residents' Committee notes that Applicant has yet to provide any revised application materials that reflect the mitigation or modifications outlined in Applicant's March 29, 2007 letter and as further clarified at the April 26, 2007 pre-hearing conference. Residents' Committee argues that the hearing cannot continue until the revised application materials are made available for review.

The Residents' Committee seeks clarification from Staff of the Department of Environmental Conservation (DEC Staff) about what its role will be in the APA hearing. After DEC Staff provides this clarification, the Residents' Committee requests an opportunity to comment.

The letter filed by the Residents' Committee outlines several recommendations. First, Applicant should be required to provide the revised application materials related to the proposed mitigation. Second, DEC Staff should clarify its role in the APA proceeding. Third, after reviewing the revised application materials, APA Staff should draft an "information request" that would identify any additional information that APA Staff needs to complete the review of the potential impacts related to the mitigated project. The Residents' Committee requests the opportunity to comment on APA Staff's information request. Fourth, the Residents' Committee requests a ruling from me about the pending requests for party status. Finally, the Residents' Committee recommends that the negotiation process should include all parties or their representatives, and take advantage of the services offered by the DEC Office of Hearings and Mediation Services.

The Association for the Protection of the Adirondacks (the Association) notes that Applicant's August 29, 2007 clarification was untimely and not responsive to my inquiry about whether the pre-hearing conference should reconvene on September 21, 2007. The Association concludes that Applicant is not ready to continue the pre-hearing conference, and recommends that the pre-hearing conference should be adjourned until mid-November with a status report from Applicant by November 1, 2007.

The Association believes that, under the following circumstances, mediation could be productive. First, Applicant should distribute the revised application materials before any mediation sessions are scheduled. The Association argues that review of the revised application materials will be necessary prior to the mediation so that potential parties can evaluate whether their participation in the mediation process would be productive. Second, the Association recommends that all groups and individuals identified on the preliminary service list should be invited to participate in the mediation process. Third, the Association recommends that I should not serve as the mediator based on the guidance provided by the DEC Office of Hearings and Mediation Services. Finally, the Association refers to 9 NYCRR part 580, and notes that the hearing officer cannot compel parties to mediate, but 9 NYCRR 580.12 and 580.14(a)(4)(iii) allow the hearing officer to control the hearing schedule, which would allow me to adjourn the administrative hearing to allow the mediation to proceed.

The Association agrees with the recommendations made by the Residents' Committee with respect to the revised application materials. The Association argues that the revised application materials must be made available to the pre-hearing conference participates for review pursuant to 9 NYCRR 580.14(a)(4)(xi) and 580.14(g)(2)(i).

Staff from the Adirondack Park Agency (APA Staff) does not object to providing Applicant with additional time to work on outstanding issues related to the project pending before the APA and the Department of Environmental Conservation. APA Staff states that it has not received any additional information from Applicant since May 2007, and notes that APA Staff and the other pre-hearing conference participants will need time to review any subsequent submissions from Applicant. Because Applicant did not propose any control date for the pre-hearing conference, APA Staff recommends January 25, 2008 as a control date, and December 7, 2007 for a status report from Applicant.

It is APA Staff's understanding that the permit applications pending before the DEC are incomplete. Mr. Lacombe's September 10, 2007 letter, which is summarized below, confirms that APA Staff's understanding is correct.

APA Staff's September 10, 2007 letter includes a statement by Kevin Scheuer from the New York State Department of Health (DOH). According to Mr. Scheuer's statement, DOH has regulatory authority for issuing permits and approvals for several aspects of the proposed project. Before any development can proceed, DOH must review and approve engineering plans and operating permits for the proposed food service establishments, the public swimming pools, all public water supply improvements, the waste water collection and treatment systems, and realty subdivision, among other things.

APA Staff notes that Staff members have not met with Applicant's consultants or representatives since May 16, 2007 and that, to date, Staff has not received any revised plans and supplemental application materials related to the proposed mitigation. Referring to Mr. Gerstman's letters, APA Staff understands that no significant negotiations have occurred since April 2007.

APA Staff wants to explore the option of mediation, but notes that it may be premature to proceed without the revised application materials. Staff has the following additional concerns. First, Staff notes that the parties to the administrative hearing have not yet been identified. Second, the list of adjudicable issues has not been finalized. According to APA Staff, I have limited discretion, based on the Board's February 15, 2007 order, to adjust the issues. Moreover, it is not clear whether the Board would have to approve any adjustments to the issues list prior to the commencement of any mediation. Third, APA Staff recommends that the mediation proceed according to an established timetable. Staff notes that the mediation process can be time consuming and may not result in any settlement. APA Staff is concerned about participants having to devote already limited resources to a mediation and then to an administrative hearing. Fourth, APA Staff explains that final decision making authority rests only with the Board and not with Staff. Consequently, any agreement accepted by APA Staff will be considered a recommendation and not bind the Board. In the end, APA Staff states that the Board may still require an adjudicatory hearing to resolve certain issues.

Finally, APA Staff recommends that the pre-hearing conference reconvene as scheduled on September 21, 2007. Staff proposes that the purpose of the conference would be to discuss the status of the project as well as whether mediation would be practical.

In the September 10, 2007 letter, DEC Staff addresses the status of the environmental permit applications pending before DEC, and includes copies of the correspondence exchanged between Staff and Applicant's consultants. The environmental permit applications pending before DEC are incomplete. To date, Applicant's consultants have not responded to DEC Staff's notices of incomplete application and subsequent requests for additional information. As a result, DEC Staff cannot determine whether any of the pending environmental permit applications would be subject to a public hearing.

DEC Staff requests that the pre-hearing conference reconvene as scheduled on September 21, 2007. The purpose of the conference, in part, would be to discuss when Applicant will provide the additional information outlined in the notices of incomplete application and other requests for information concerning the environmental permits, as well as the revised application materials related to mitigation. At the conference, DEC Staff would also like to discuss the feasibility of mediation. DEC Staff maintains that Applicant must submit the information requested by DEC Staff, as well as the revised application materials as a condition precedent to the commencement of the mediation.

Scheduling Order

Upon review of Applicant's August 7, 2007 status report, Applicant's August 29, 2007 clarification, and the comments received to date, I see a benefit to convening a conference to discuss the various topics identified above which, among other things, include: (1) Applicant's request for mediation and the details associated with that process; (2) the additional information requested by APA and DEC Staff concerning Applicant's proposed mitigation and the pending environmental permit applications; (3) requests for party status; and (4) the issues for adjudication, which may be discussed during mediation. Information about the mediation process is available on the DEC web site at http://www.dec.ny.gov/regulations/2578.html.

Because a limited number of conference participants filed comments, it is not clear to me how many participants would be able to attend a conference on September 21, 2007. Therefore, I propose to convene a conference at 10:00 a.m. in the vicinity of the Village of Tupper Lake on one day during the week of either October 15 or October 22, 2007, rather than on September 21, 2007.

The participants shall advise me about their availability by 3:00 p.m. on Thursday, September 27, 2007. Given the ministerial nature associated with scheduling the conference, participants may advise me of their availability by mail, telephone (518-402-9003) or e-mail (dpoconne@gw.dec.state.ny.us). Unless I am advised otherwise by September 27, 2007, I will presume that participants are available for the conference on any week day from October 15 to October 26.

Given the potential number of participants, it may not be possible to select a day when everyone will be able to attend the conference. Therefore, I recommend that participants with similar interests confer and identify a spokesperson who will be able to attend.

In the meantime, I request that APA Staff determine the availability of a location in the vicinity of the Village of Tupper Lake during the period identified above for the conference. I recognize that the date of the conference may be determined exclusively by the availability of the location. I request that APA Staff advise me about the location by September 27, 2007.

In addition, I would like to have a stenographic record of the conference, and request that APA Staff reserve a stenographer.

On October 1, 2007, I will advise the parties in writing of the date and location for the conference. I will distribute this information by e-mail and by regular mail.

I appreciate the participants' cooperation.

Additional Requests for Party Status

With my August 15, 2007 memorandum, I stated that I had received separate requests for full party status from Paul Vidich and Marilyn Oestreich, and enclosed copies of those requests. In addition, with a cover letter dated August 17, 2007, I received a Notice of Appearance from John W. Caffry, Esq., which states that Mr. Caffry and his firm, Caffry and Flower, have been retained by the Association as its legal counsel for the purpose of this proceeding.

As noted above, I received a letter dated August 30, 2007 from Don Dew, Jr., President, Tupper Lake Chamber of Commerce. Mr. Dew, on behalf of the Chamber of Commerce, objects to the requests for party status filed by Mr. Vidich and Ms. Oestreich, and argues that these requests should be denied because they are untimely.

The Chamber of Commerce correctly notes that the notice of public hearing set April 23, 2007 as the date by which individuals and groups were to file requests for party status, and that the requests filed by Mr. Vidich and Ms. Oestreich are untimely. Nevertheless, I deny the request by the Chamber of Commerce to deny Mr. Vidich's and Ms. Oestreich's respective requests for party status for the following reasons.

According to their respective requests for party status, Mr. Vidich and Ms. Oestreich are adjoining landowners. Pursuant to 9 NYCRR 580.5(b), adjoining landowners are parties of right. In addition, the hearing officer may permit any person to file a petition to intervene at any time after the first day of the hearing if, among other things, no party will be prejudiced (see 9 NYCRR 580.8[g]). To date, I have not ruled on any requests for party status, in part, because the pre-hearing conference has not been completed. Furthermore, the adjudicatory hearing concerning the captioned matter has not commenced. Consequently, neither the Chamber of Commerce nor any other potential party has been prejudiced by the late filed petitions.

The Chamber of Commerce also objects to the untimely filing of Mr. Caffry's notice of appearance on behalf of the Association. The Chamber of Commerce states that Dale Jeffers is an attorney who is associated with the Association.

I will accept Mr. Caffy's notice of appearance on behalf of the Association. Although Mr. Jeffers is an attorney who attended the April 26, 2007 pre-hearing conference as a member of the Association, Mr. Jeffers did not identify himself, or his firm, as the legal counsel for the Association.

The Association timely filed its petition for party status. Subsequently, the Association has decided to retain legal counsel to represent its interest in these proceedings. Mr. Caffry's notice of appearance is consistent with the requirements at 9 NYCRR 580.10(a). Given the circumstances of this proceeding, Mr. Caffry's appearance at this time does not delay the proceedings or otherwise prejudice any of the other potential parties in this matter.

Preliminary Service List

I have revised the Preliminary Service List, and a copy dated September 13, 2007 is enclosed with this memorandum.

Summary

  1. The pre-hearing conference scheduled for September 21, 2007 is adjourned.
  2. A conference will be re-scheduled for 10:00 a.m. in the vicinity of the Village of Tupper Lake on one week day during the period from October 15 to October 26, 2007.
  3. By September 27, 2007, participants shall advise me of their availability to attend the conference during the period from October 15 to October 26, 2007.
  4. By September 27, 2007, APA Staff will advise me of the location of the conference.

Upon review of this information, I will advise the participants on October 1, 2007 about the day and location for the conference.

____________/s/____________
Daniel P. O'Connell
Administrative Law Judge
Office of Hearings and Mediation Services
NYS Department of Environmental Conservation
625 Broadway, First Floor
Albany, New York 12233-1550
Telephone: 518-402-9003
FAX: 518-402-9037
E-mail: dpoconne@gw.dec.state.ny.us

Dated: Albany, New York
September 14, 2007

To: Preliminary Service List, revised September 13, 2007

1 I received Mr. Bauer's letter on August 31, 2007.

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