Protect the Adirondacks! Inc. v. Adirondack Park Agency

• Decision Date: 03 July 2014
• Citation: 121 A.D.3d 63,2014 N.Y. Slip Op. 04992,990 N.Y.S.2d 643
• Parties: In the Matter of PROTECT THE ADIRONDACKS! INC. et al., Petitioners–Appellants, v. ADIRONDACK PARK AGENCY et al., Respondents–Respondents.
• Court: New York Supreme Court — Appellate Division

121 A.D.3d 63

990 N.Y.S.2d 643

2014 N.Y. Slip Op. 04992

In the Matter of PROTECT THE ADIRONDACKS! INC. et al., Petitioners–Appellants,

v.ADIRONDACK PARK AGENCY et al., Respondents–Respondents.

Supreme Court, Appellate Division, Third Department, New York.

July 3, 2014.

Caffry & Flower, Glens Falls (John W. Caffry of counsel), for petitioners-appellants.

Eric T. Schneiderman, Attorney General, Albany (Susan L. Taylor of counsel), for Adirondack Park Agency, respondent-respondent.

Fitzgerald, Morris, Baker & Firth, Glens Falls (Thomas A. Ulasewicz of counsel) and Whiteman, Osterman & Hanna, LLP, Albany (Robert L. Sweeney of counsel), for Preserve Associates, LLC and others, respondents-respondents.

Before: LAHTINEN, J.P., McCARTHY, ROSE, EGAN JR. and LYNCH, JJ.

ROSE, J.

(1) Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Adirondack Park Agency which approved the Adirondack Club and Resort, and (2) appeal, by permission, from an order of the Supreme Court (Platkin, J.), entered March 21, 2013 in Albany County, which, among other things, partially denied petitioners' request for disclosure.

In 2004, respondents Preserve Associates, LLC, Big Tupper, LLC, Tupper Lake Boat Club, LLC and Nancy Hull Godshall, as trustee of respondent Oval Wood Dish Liquidating Trust (hereinafter collectively referred to as the developers), submitted an application to respondent Adirondack Park Agency (hereinafter the APA) for conceptual approval of the proposed Adirondack Club and Resort—the largest project ever proposed for New York's 6,000,000–acre Adirondack Park—to be located on privately-owned land in the Town of Tupper Lake, Franklin County. The 6,235–acre project site includes and surrounds the closed Big Tupper ski area. It is bordered by, among other things, the Village of Tupper Lake, State Route 30 and a municipal golf course. The application for permit approval submitted by the developers in 2005 proposed reopening the Big Tupper ski area, renovating and utilizing the closed McDonald's Marina on Tupper Lake, and building over 600 “second home” residential units of various styles—including “Great Camps” to be built on substantial acreage—a hotel with numerous amenities and several other recreational resources, such as a skating pond, an informal bandstand/amphitheater and hiking trails. The application was amended and supplemented by the developers several times until it was deemed complete by the APA in 2006.

In 2007, the APA ordered that an adjudicatory hearing be conducted and identified the issues for determination. Discovery and mediation sessions were conducted between 2007 and the commencement of the public hearing held in 2011. As a result of these efforts, the developers submitted updated application information in 2010.¹ Parties to the 19–day public hearing included the developers, the Village of Tupper Lake, the Town of Tupper Lake, the Town of Tupper Lake Planning Board, the Adirondack Park Local Government Review Board, nearby landowners and petitioners.² Following the hearing, the APA voting members publicly deliberated during seven days of open meetings held over the course of several months, culminating in their nearly unanimous vote to approve the application in January 2012. Shortly thereafter, the APA issued an extensive final order and drafted 14 permits for the various aspects of the project, which will be issued upon the satisfaction of the terms and conditions set forth in the order. As approved, the project will include 659 residential units, a 60–bedroom inn, a downhill ski area, a marina and valet boat launching service, over 15 miles of public and private roads, wastewater treatment systems and various recreational amenities and maintenance facilities. Construction of the project is planned in four phases over 15 years.

In March 2012, petitioners commenced this proceeding pursuant to CPLR article 78 seeking to annul the APA's determination approving the developers' application. Respondent Department of Environmental Conservation (hereinafter DEC) was also named as a party to this proceeding. The 153–page amended petition alleges 29 causes of action, including procedural and substantive violations of the Adirondack Park Agency Act, the Freshwater Wetlands Act, the State Administrative Procedure Act and various related regulations. Following petitioners' largely unsuccessful motion before Supreme Court for leave to conduct discovery (38 Misc.3d 1235[A], 2013 N.Y. Slip Op. 50393[U], *5, 2013 WL 1189216 [2013] ), the matter was transferred to this Court for review ( seeCPLR 7804[g] ). Thereafter, we granted petitioners' motion for permission to appeal from Supreme Court's order denying their motion for leave to conduct discovery and permitted the appeal and the proceeding to be heard together (2013 N.Y. Slip Op. 74165[U] [2013] ).³

I. STANDARD OF REVIEW

Judicial review of the APA's determination, made after a hearing at which evidence was taken pursuant to law, is limited to whether the decision is supported by substantial evidence ( seeCPLR 7803[4]; Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974];Matter of Sutherland v. Glennon, 221 A.D.2d 893, 894, 634 N.Y.S.2d 259 [1995] ). Substantial evidence does not require overwhelming evidence or even a preponderance of the evidence ( see Matter of Ridge Rd. Fire Dist. v. Schiano, 16 N.Y.3d 494, 499, 922 N.Y.S.2d 249, 947 N.E.2d 140 [2011]; 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180–181, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978];Matter of Rauschmeier v. Village of Johnson City, 91 A.D.3d 1080, 1082, 937 N.Y.S.2d 373 [2012],lv. denied19 N.Y.3d 802, 2012 WL 1538361 [2012] ). Rather, all that is required is “ ‘relevant proof [that] a reasonable mind may accept as adequate to support a conclusion or ultimate fact’ ” (Matter of Rauschmeier v. Village of Johnson City, 91 A.D.3d at 1082, 937 N.Y.S.2d 373, quoting Matter of Ridge Rd. Fire Dist. v. Schiano, 16 N.Y.3d at 499, 922 N.Y.S.2d 249, 947 N.E.2d 140;accord Matter of Dewitt v. New York State Bd. of Law Examiners, 90 A.D.3d 1457, 1457, 935 N.Y.S.2d 726 [2011],lv. denied18 N.Y.3d 810, 2012 WL 1085572 [2012] ). Additionally, “[t]he fact that a different conclusion could have been reasonably reached is not sufficient ground to set aside the determination” (Matter of Cohn Chemung Props., Inc. v. Town of Southport, 108 A.D.3d 928, 929, 969 N.Y.S.2d 571 [2013];see Matter of Steinberg v. DiNapoli, 93 A.D.3d 1068, 1069, 941 N.Y.S.2d 300 [2012];Matter of Friedman v. Adirondack Park Agency, 165 A.D.2d 33, 38, 565 N.Y.S.2d 607 [1991],lv. denied78 N.Y.2d 853, 573 N.Y.S.2d 467, 577 N.E.2d 1059 [1991] ).

To the extent that petitioners argue that the APA's determination was affected by errors of law ( seeCPLR 7803[3] ), this Court's “review of these arguments, made in a CPLR article 78 proceeding following a hearing, is limited to whether the [APA] exceeded its authority, violated a controlling law or otherwise acted in an arbitrary and capricious manner” (Matter of Cohn Chemung Props., Inc. v. Town of Southport, 108 A.D.3d at 929, 969 N.Y.S.2d 571;see e.g. Matter of Small v. City of N.Y. Dept. of Sanitation, 74 A.D.3d 828, 829, 901 N.Y.S.2d 552 [2010] ). The APA's authority stems from the Adirondack Park land use and development plan, which “serve[s] to guide land use planning and development throughout the entire area of the Adirondack [P]ark” (Executive Law § 805[1][a] ). Pursuant to this plan, land within the Adirondack Park is characterized as one of six land use areas, each of which has its own individualized guidelines for overall intensity of development ( seeExecutive Law § 805[3][c]-[h] ).

Significantly, before new development is undertaken, the APA must “consider those factors contained in the development considerations of the plan which are pertinent to the project under review” and determine that the proposed project “would not have an undue adverse impact upon the natural, scenic, aesthetic, ecological, wildlife, historic, recreational or open space resources of the park” (Executive Law § 809[10][e]; see alsoExecutive Law § 805[4] ). In considering whether any adverse impact is undue, Executive Law § 809(10)(a) and (b) require the APA to determine that a project is “consistent with the land use and development plan” and “compatible with the character description and purposes, policies and objectives of the land use area wherein it is proposed to be located.” In doing so, the APA must also consider the burden that development will place on public services, as well as any “commercial, industrial, residential, recreational or other benefits that might be derived from the project” (Executive Law § 809[10] [e]; seeExecutive Law § 805[4] ).

II. SUBSTANTIVE CHALLENGES

A. CRANBERRY POND

Cranberry Pond is a 26–acre body of water with surrounding wetlands located in a moderate intensity land use area “where the capability of the natural resources and the anticipated need for future development indicate that relatively intense development, primarily residential in character, is possible, desirable and suitable” (Executive Law § 805[3][d][1] ).⁴ The record establishes that the revitalization of the preexisting Big Tupper ski area is a key initial component of the planned development and is essential to the generation of funding for later phases of the project. In issuing the permit for the ski area, the APA credited evidence proffered by the hearing staff and permitted the temporary use—for a minimum of two years and a maximum of five years—of Cranberry Pond as the water source for snowmaking activity at the ski area.

Although petitioners argue that the determination is not supported by substantial evidence because the permit requires...