Former DEC commissioner sues park agency for records
By Zachary Matson
Marina developers on Lower Saranac Lake have reworked a proposal after an Adirondack Park Agency permit in March was vacated by the courts over the agency’s interpretation of its wetlands regulations.
The revised application seeks a variance to the agency’s shoreline restrictions but will not require any agency permit, according to APA staff. The new proposal alters the configuration of covered, floating docks to reduce their presence in wetlands, especially at the marina’s “annex” site in Ampersand Bay, the focal point of the permit-vacating court decision.
The application aims to add covers to docks for a marina totalling 277 boat slips, up from historic capacity of 219 boats, according to records. Lake Placid attorney Matt Norfolk, who represents applicant LS Marina, said they were able to increase boat capacity by about 25% without requiring approval, under APA rules, and that the variance only applies to planned dock roofs.
Thomas Jorling, a former state Department of Environmental Conservation commissioner with property near the marina annex, sued APA over the marina’s 2020 permit, arguing the agency failed to study the broader impacts to state-owned wild forest land and water and wrongly applied wetlands rules. In a unanimous decision, the Appellate Division annulled the permit and ruled the agency’s long standing interpretation of how to value wetlands was a clear misreading of its regulations.
Now, Jorling is suing the APA, citing the Freedom of Information Law, for records related to a March meeting between APA staff and the marina team. Jorling in April railed against the agency’s review process in a missive to APA leaders and requested any memos produced by staff following the meeting. The APA’s top lawyer denied the request as an internal agency record exempt from disclosure.
“Attempting through a private unilateral meeting with the applicant to agree to an alternative permit process without the engagement of all parties further erodes any trust in the APA,” Jorling wrote in an April letter addressed to APA Executive Director Barbara Rice and APA Chairman John Ernst. “In attempting to do so the staff is usurping the authority of the board, further discrediting the agency.”
The variance application is scheduled for a virtual public hearing on June 5 and could go before the APA board as soon as its June 15 meeting. Variances are granted to projects where “practical difficulties or unnecessary hardships” prevent the applicant from complying with restrictions on shoreline development.
If approved the project would result in a marina that replaced 27,683 square feet of removed docks and boathouses with 63,582 square feet of new docks, including some that stretch further from shore than what originally existed.
The expansion is focused at the main marina site, with a small net reduction in dock square footage at the annex site, under the latest plans. The work at the annex site, central to the earlier lawsuit, will not require a permit or variance, according to the application and APA staff.
“The proposed layouts and covered floating dock system is the highest and best use of the commercial marina to be self-sustaining in the future,” according to the application. “While wetlands can be found at both marina locations, the applicant has now designed the project to lessen any impacts to wetlands and eliminate altogether the need for a wetland permit from the agency.”
No carrying capacity studies
Jorling and his attorney, Glens Falls-based lawyer Claudia Braymer, called for a much more comprehensive review of the marina proposal, suggesting it would be the largest in the park and set a precedent. They argued the expansion of boat slips coupled with larger, modern boats will boost boat traffic on the popular lake chain.
“That does have an overall impact on boat traffic and natural resources and people’s experience of the waters if there are so many new boats having conflicts with other users of the lake,” Braymer said. “It’s certainly more impactful than the pre-existing marina.”
Jorling and Braymer also said APA should hold an adjudicatory hearing to analyze the project and consider developing broader marina regulations that consider how they impact the park’s natural resources.
Braymer also renewed the argument that the state’s failure to produce carrying capacity studies on Lower Saranac Lake prevents the agency from evaluating how the marina expansion will affect forest preserve land in the Saranac Lakes Wild Forest. The studies, which are called for in the Adirondack Park State Land Master Plan, would examine human use and ecological resources of lakes.
The appeals court called the state’s failure to produce the studies after five decades “inexplicable.” But it also noted that since the marina owner could rebuild its pre-existing docks, the APA acted properly in determining the proposal would not have an adverse impact by conditioning approval on certain environmental protections.
“I still think that is something the agency should be doing before it approves a project of this nature, a marina project on an important waterbody in the Adirondacks,” Braymer said.
The marina team described the proposal as “designed to be beneficial to the community and environment.” They have argued that the proposal is far better for the area than if they exercised their right to rebuild the marina structures that existed before the APA law went into effect in 1973 and note some wetlands recovery since old structures were removed.
“Since this proposal is a replacement of a pre-existing dilapidated facility with updated contemporary improvements, the applicant sees no adverse impacts associated with this proposal,” according to the application.
Norfolk said a single application is not the venue to challenge the state’s failure to study lake capacity or implement marina regulations.
“They are asking for legislation or rulemaking through individual permit applications, that’s not how it works,” Norfolk said.
The same marina team is also pursuing an expansion of the old Hickok’s Boat Livery on Fish Creek Ponds. Nearby property owners have opposed that project, arguing the marina overstated how many boats have historically docked at the site and understated potential impacts to neighboring state waters, including those adjacent to a popular public campground.
Less than two weeks after the court tossed the marina’s 2020 permit, APA staff met with representatives of the marina to discuss “the proposal moving forward.”
Norfolk said the marina team notified APA staff about the planned application at the meeting.
Jorling sought any memos produced by APA staff memorializing what was discussed at the meeting, a request the agency denied as intra-agency communication. After Jorling appealed that denial, APA counsel Christopher Cooper acknowledged that two one-page memos were created by staff following the meeting and shared within the agency.
“While the meetings with the applicant were not intra-agency meetings, the internal memoranda regarding staff’s impressions of the meetings are intra-agency communications,” Cooper wrote in a letter denying Jorling’s appeal.
Braymer on May 18 filed the FOIL suit, arguing the agency cannot deny internal records that include factual or statistical tabulations or “instructions to staff that affect the public.” If staff discussed how the review process would go forward, she said, the public should have access to the memos.
“It is possible for APA and an applicant to meet and there should also be a public record of the meeting, so the public can see what happened in the meeting,” Braymer said. “There is no exemption of FOIL for private meetings, especially if it’s information that will guide staff’s review.”