Broad Discretion of the Adirondack Park Agency on Whether to Hold Hearings Upheld by Appellate Court

Much ink has been spilled in recent years over why the Adirondack Park Agency (the APA” or the “Agency”) has held significantly fewer hearings before an Administrative Law Judge (“ALJ”) as part of its administrative process.[1]  But the courts have emphasized that the APA has broad discretion in determining whether or not to hold a hearing, and the courts will rarely interfere, a point that the Third Department Appellate Division emphasized in overturning a lower court order that the Agency hold a hearing regarding a controversial application.

Matter of the Lake George Association v. NYS Adirondack Park Agency,[2] concerned the efforts of the Lake George Park Commission (“LGPC”) in combating the Eurasian watermilfoil (“EWM”), an aquatic invasive plant with no natural predators that was harming water quality and native flora and fauna, and limiting recreational use of the Lake. The LGPC sought an APA permit for the application of an herbicide after other methods were ineffective or too expensive. This type of APA permit is subject to a complicated process whereby the APA makes a set of findings indexed to the value rating of the affected wetlands,[3] but the Agency can depart from those findings when “the economic, social and other benefits to be derived from the activity proposed compel a departure.” The herbicide was approved by both the federal Environmental Protection Agency and New York State Department of Environmental Conservation, and after an extensive consultation, the APA granted the permit.

An Article 78 action was commenced by “a collection of public interest entities and an adjoining property owner” seeking to annul the permits and enjoin application of herbicide. Petitioners focused on the procedure employed by the APA in granting the permits and the Agency’s failure to hold a hearing. The Warren County Supreme Court ruled in their favor and vacated the permits after finding “it does not appear that the [APA] board had sufficient information” regarding possible alternative methods of remediation to decide whether to hold an adjudicatory hearing.  The lower court particularly pointed at Agency staff, holding the failure was largely due to the APA staff presentation being rushed, inaccurate, and one-sided. 

The Third Department reversed.  Turning first to the permit decision, the Court noted “where an agency’s determination was rendered without a fact-finding hearing, a court’s review is limited to ‘whether [the] determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion” (CPLR 7803[3]), but highlighted “that a court cannot substitute its view of the factual merits of a controversy for that of the administrative agency.”[4]  after a detailed discussion of the pros and cons of using the herbicide, the Court ruled “although it may have been rational for the APA board to vote differently based on the information before it, we cannot say that the APA lacked a rational basis or acted in an arbitrary and capricious manner in approving the permit applications.” Disagreeing with the lower court, the Third Department was “satisfied that the APA complied with its statutory and regulatory duties and was not otherwise required to present more alternatives in the permit review process,” and reinstated the permits.

On the question of whether or not to conduct an adjudicatory hearing process, again the Court was deferential to the role of the Agency. Noting “the ultimate burden is on petitioners to demonstrate that there were ‘substantive and significant issues’ with respect to whether the proposed project would have an ‘undue adverse impact on the natural, scenic, aesthetic, wildlife, historic, recreational or open space resources’ of the Adirondack Park,” the Court held that the burden had not been met here.  Generally, an issue will be deemed substantive under New York law when there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry.  An issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions.[5]  But whether the record is sufficient to address those issues, so that no significant and substantive issues require a public hearing, rests mainly in the discretion of the Agency.

Petitioners thus join a legion of litigants who failed to meet their burden, for much more than policy disagreements or, as in the case, a belief that additional studies are required must be shown. Where, as in the Lake George Association case, the record showed sufficient information to support this determination that issues have been resolved, courts will not disturb agency decisions.

The Appellate Court also overturned the lower court’s rejection of the Agency’s staff presentation to the APA Board. Permit opponents had successfully argued that the staff presentation was inaccurate, one-sided, and impaired by an error of law on the relevant time constraints.  But the Appellate Court noted “there are no requirements governing an APA staff presentation and whether it must be balanced,” and the record demonstrated there was significant information both for and against the permit. Indeed, several Board members voted against it and a number of the members explained their rationale. Thus the lower court erred in overturning the decision of the Board.

Insights: Obviously project opponents never believe that the record is sufficient for a decision they don’t support, but nothing in the Administrative Procedure Act requires Agency deference to applicants or opponents in determining whether or not to hold hearings.  The essential point in these cases is that the record must document true issues of significance for a hearing to be required, reliance on petitions and writing campaigns may carry the day politically, but will not with courts.

Applications to the APA require an understanding of the unique nature of this Agency, as well as the dynamics of New York land use and zoning law. For questions about this case, the Adirondack Park Agency or other land use matters, contact Matt Liponis (518.433.2417), Charles Malcomb (716.848.1261), Daniel Spitzer (716.848.1420) or any member of our land use practice.

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[1] See, e.g., The mysterious case of the disappearing adjudicatory hearing at the adirondack park agency, Protect the Adirondacks Available at https://www.protectadks.org/the-mysterious-case-of-the-disappearing-adjudicatory-hearing-at-the-adirondack-park-agency/. The APA itself has asserted there has been no need for hearings because Agency staff has significantly improved communications with applicants about the likelihood of success of their permits, thereby reducing the number of open questions before the APA Board.

[2] 228 A.D.3d 52 (3d Dept 2024), leave to appeal denied, 42 N.Y.3d 908 (2024).

[3] See 9 NYCRR 578.10[a][1], [3]).

[4] 228 A.D.2d at 5399 (citations omitted).

[5] See e.g., E. Niagara Project Power All. v. State Dep't of Env't Conservation, 42 A.D.3d 857 (3d Dept. 2007); DEC regulations, 6 N.Y.C.R.R. § 624.4 (c) (2)).