Constitutional & Administrative-Law Objections

In the Matter of the Application of Unconventional Concepts, Inc. and Michael Hopmeier

Preliminary Statement

This memorandum advances the position that the controversy surrounding Adirondack Park Agency Project P2021-0276 has developed into a matter substantially broader than an ordinary disagreement over land-use permitting. The underlying application concerns a proposed weapons range in the Town of Lewis, Essex County, for the testing of the internal ballistics of portable 155 mm howitzer cannon barrels. According to the Agency's own public notice, the proposal contemplates firing nonexplosive steel projectiles into a kinetic-energy-absorbing system, with firing limited under the application to no more than thirty rounds per year, on weekdays during specified daytime hours, over a five-year period. The Agency identifies the property as Rural Use land and asserts jurisdiction principally on the ground that the project constitutes either a new commercial use or a land use or development not included among the primary or secondary uses identified for that classification.

The constitutional objection advanced here does not depend upon the proposition that environmental regulation is itself illegitimate. New York possesses broad authority to regulate land use, environmental effects, development, and activities falling within validly enacted statutory jurisdiction. Nor does this memorandum contend that every disagreement between a regulator and an applicant becomes a federal constitutional case. The narrower and more serious proposition is that regulatory authority is bounded authority. An administrative agency must act within the jurisdiction delegated to it by the Legislature, must employ ascertainable legal standards, must provide constitutionally adequate procedure, must adjudicate through an impartial process, must ground its determinations in evidence rather than generalized opposition, and may not employ the administrative process itself as a means of accomplishing indirectly what the law does not permit it to accomplish directly.

Project P2021-0276 should therefore be examined not merely through the question of whether an artillery testing range is popular, unpopular, unusual, loud, controversial, or aesthetically consistent with what individual regulators or advocacy organizations believe the Adirondack Park ought to be. The proper inquiry is whether the government has established its authority over the proposed activity and whether, having invoked that authority, it has administered the law through standards and procedures sufficiently definite, neutral, rational, and reviewable to satisfy both New York administrative law and the constitutional limitations imposed upon state power.

That distinction is fundamental. The Constitution does not guarantee an applicant a permit merely because the applicant believes the project is safe, useful, economically beneficial, or connected to national-defense research. It does, however, constrain the manner in which the State may interfere with property, adjudicate legal rights, distinguish among regulated parties, and wield discretionary power. New York's own Constitution provides that no person shall be deprived of life, liberty, or property without due process of law, that private property shall not be taken for public use without just compensation, that citizens retain rights of speech and petition, and that no person shall be denied equal protection of the laws.

The central contention of this memorandum is therefore straightforward: government may regulate, but government must be able to identify the source of its authority, identify the standards it is applying, explain what compliance requires, apply those standards consistently, adjudicate the dispute through a genuinely fair process, and reach an ultimate determination that can be defended through law and evidence rather than institutional preference.

Statement of Relevant Procedural Background

The application underlying Project P2021-0276 dates to 2021. By October 2025, the project appeared in the New York State Department of Environmental Conservation's Environmental Notice Bulletin as a completed APA application. The published project description identified a portable 155 mm howitzer assembly, a crushed-gravel firing pad, steel rather than explosive projectiles, a projectile-catching system, and a proposed maximum of thirty firings annually during restricted weekday hours.

On November 14, 2025, the APA Board directed the application to an adjudicatory public hearing. The Agency's hearing notice identified questions extending from compatibility with the Adirondack Park Land Use and Development Plan to noise, wildlife, pollution, health and safety, nearby public lands, and potential effects on property values. The Agency's notice expressly characterized jurisdiction as arising under § 809 of the Adirondack Park Agency Act because the activity allegedly constitutes either a proposed new commercial use or a use not identified as primary or secondary within the Rural Use classification.

The adjudicatory process itself has subsequently become contested. The applicant challenged the designation of Administrative Law Judge David Greenwood because he had previously worked for the Adirondack Council, which became an opposing party in the proceeding. The Agency rejected the challenge. Its January 27, 2026 order acknowledged Greenwood's prior seven-year employment by the Adirondack Council, but found the relationship too remote, stating that it had ended twenty-six years earlier and that the applicant had presented no specific evidence of current financial, professional, personal, or other ties demonstrating actual bias or prejudgment. The Agency additionally emphasized that the APA Board, rather than the hearing officer, reserved the ultimate authority to make findings of fact and conclusions of law.

As of September 1, 2026, the administrative proceeding remains unresolved, and the Agency's public project page states that the hearing has been postponed until October 28, 2026.

That history matters because administrative delay, repeated demands for information, jurisdictional uncertainty, standards whose practical limits remain disputed, contested impartiality, and the absence of a final determination are not isolated procedural details. Viewed collectively, they present the question whether the permitting system remains a legitimate mechanism for determining compliance or has become, in practical effect, the governmental burden being challenged.

Argument

I. The APA's handling of the application raises a substantial procedural due-process question because regulation must provide a meaningful, intelligible, and fair opportunity to obtain a lawful determination.

The Fourteenth Amendment prohibits a State from depriving a person of property without due process of law, and Article I, § 6 of the New York Constitution separately commands that "[n]o person shall be deprived of life, liberty or property without due process of law." The Supreme Court has repeatedly explained that due process is concerned not merely with whether some procedure technically exists, but whether the procedure afforded is meaningful in relation to the governmental deprivation at issue. Mathews v. Eldridge, 424 U.S. 319 (1976), instructs courts to consider the private interest affected, the danger of erroneous governmental deprivation under the procedure being employed, the value of additional safeguards, and the governmental interest asserted. Due process ultimately requires an opportunity to be heard "at a meaningful time and in a meaningful manner."

That principle has direct significance here. A permitting process cannot fairly be evaluated solely by counting notices, filings, conferences, demands for additional information, or opportunities to submit paper. Procedure can exist in enormous quantity while still failing in substance. An applicant confronted with a regulatory process must be capable of determining what law governs, what factual questions must be answered, what standards must be satisfied, what evidence will be considered sufficient, and what alterations, limitations, or mitigation measures would transform an unacceptable application into an acceptable one. Without such information, the theoretical opportunity to participate becomes progressively less meaningful because the applicant is not merely being asked to prove compliance with a known rule, but is instead being required to discover, through years of interaction with the regulator, what the rule means in practice.

This is where the question repeatedly posed in connection with this project becomes legally significant: What does yes look like? If thirty firings annually supposedly create an undue impact, would twenty satisfy the Agency? If a particular predicted sound pressure or acoustic effect is excessive, what measurable threshold would satisfy the Agency? If the proposed firing schedule is unacceptable, what schedule is acceptable? If the soft-catch system, setback, operating procedures, forestry management, instrumentation, or proposed mitigation are inadequate, what objectively identifiable modification would render them adequate? The issue is not whether an agency must negotiate every permit condition demanded by an applicant. It is whether a regulatory regime can constitutionally and lawfully require compliance while leaving the regulated party unable to determine the boundaries of compliance.

The Supreme Court has recognized that due process is implicated when governmental rules become so vague and standardless that the regulated public cannot determine what the government requires and decision-makers are effectively left to determine legality without sufficiently fixed standards. The argument here should therefore be carefully framed. It is not that terms such as "undue adverse impact" are automatically unconstitutional. Environmental statutes necessarily contain evaluative standards. The constitutional concern arises if such language is administered in practice without ascertainable limiting principles, measurable criteria, consistent precedent, or an intelligible path by which an applicant can demonstrate compliance.

The prolonged history of this particular application strengthens, rather than resolves, that concern. Delay alone does not establish a constitutional violation. Administrative complexity alone does not establish one either. But when delay combines with repeated incompleteness determinations, contested jurisdictional boundaries, uncertainty concerning acceptable operational parameters, an expanding adjudicatory inquiry, and continuing inability to obtain a final determination, the process itself becomes relevant to the constitutional analysis. Due process protects against erroneous deprivation, but it also requires a governmental decision-making structure capable of reaching an answer.

II. The record supports a serious arbitrary-and-capricious and abuse-of-discretion challenge under New York law, while any federal substantive due-process claim must satisfy a substantially higher standard.

The strongest immediate legal distinction is between ordinary administrative illegality and federal substantive due process. New York CPLR § 7803 expressly authorizes judicial inquiry into whether a government body "proceeded, is proceeding or is about to proceed without or in excess of jurisdiction," whether a determination violated lawful procedure or was affected by an error of law, and whether governmental action was "arbitrary and capricious or an abuse of discretion."

Those grounds closely track the objections presented by this case. If an agency is incapable of articulating a rational relationship between the evidence before it and the burdens it imposes; if it treats speculative effects as established facts while discounting contrary technical evidence; if it repeatedly changes the information necessary for consideration; if its standards operate as moving targets; or if the administrative machinery is used to prolong the proceeding without advancing toward a legally defined determination, an Article 78 challenge can ask a New York court to examine whether the agency has crossed from lawful regulatory judgment into arbitrary action, legal error, abuse of discretion, or action beyond jurisdiction.

Federal substantive due process is more demanding, and any serious brief must acknowledge that fact rather than weaken the argument through exaggeration. The Second Circuit has held in the land-use context that a federal substantive due-process violation requires more than proving that an agency reached an erroneous, unfair, or even state-law-arbitrary result. The conduct must be so outrageously arbitrary as to amount to a gross abuse of governmental authority, and a claimant asserting a protected property interest in a permit generally must demonstrate a sufficiently clear entitlement under governing law. Natale v. Town of Ridgefield, 170 F.3d 258, 262-63 (2d Cir. 1999).

Accordingly, the constitutional argument should not be that every APA procedural irregularity independently violates substantive due process. The stronger proposition is cumulative. If discovery ultimately demonstrates that officials knowingly employed a regulatory process without legitimate limiting standards, deliberately disregarded controlling law or material evidence, perpetuated proceedings for purposes collateral to legitimate environmental review, or otherwise used governmental machinery in a manner so extreme that it constituted a gross abuse of authority, substantive due process would become a serious federal question. Until such evidence is established, Article 78's arbitrary-and-capricious, error-of-law, abuse-of-discretion, and excess-of-jurisdiction grounds remain the cleaner vehicles for challenging administrative misconduct.

III. The APA must establish that its assertion of jurisdiction is supported by the authority actually delegated to it by the Legislature.

The question of jurisdiction is analytically prior to the question of whether the project should receive a permit. An administrative agency is a creature of statute. It does not possess an unlimited reservoir of regulatory authority simply because an activity occurs geographically within the Adirondack Park. The Agency itself states that it administers the Adirondack Park Agency Act, portions of the Wild, Scenic and Recreational Rivers System Act, the Freshwater Wetlands Act, and related environmental laws.

For this project, the Agency has asserted jurisdiction because it considers the proposal either a new commercial use or a land use or development outside the listed primary and secondary uses for Rural Use land. That assertion cannot simply be treated as self-proving. If the applicant's position is that the temporary operation of mobile testing equipment, or some material component of the activity, does not constitute the category of "land use or development" over which the statute confers permit jurisdiction, that presents a legal question concerning the scope of delegated authority.

The precise argument should therefore be ultra vires, meaning beyond statutory authority, rather than a generalized assertion that disagreement with the project deprives the APA of power. CPLR § 7803 specifically authorizes judicial review of whether an agency "proceeded, is proceeding or is about to proceed without or in excess of jurisdiction."

If the underlying activity falls outside the statutory delegation, no amount of administrative procedure can manufacture jurisdiction that the Legislature did not confer. Conversely, if the statute clearly does reach the activity, then the argument must move from jurisdiction to the legality of how that jurisdiction is being exercised. That distinction is critical to preserving credibility. The claim should therefore be stated as a proposition requiring statutory adjudication: the APA bears no inherent authority over this project merely because it is the APA; its authority must be traced to the Legislature and remain within the boundaries of the statute actually enacted.

IV. The applicant is constitutionally entitled to a sufficiently impartial adjudicatory process, although the present public record does not by itself establish actual bias.

Due process requires a fair tribunal, and that requirement applies to administrative adjudication as well as conventional courts. In Withrow v. Larkin, 421 U.S. 35 (1975), the Supreme Court reaffirmed that a fair trial before a fair tribunal is a basic due-process requirement applicable to agencies exercising adjudicatory functions.

That principle makes the controversy concerning the hearing officer legally relevant. The applicant objected to ALJ David Greenwood because of his former employment with the Adirondack Council, an organization now participating in opposition to the application. The APA rejected the recusal request, expressly finding that the employment relationship ended twenty-six years earlier, that there was no evidence of a current professional, personal, financial, or membership relationship, and that the applicant had not established actual prejudgment or bias. The Agency also emphasized that the Board retains responsibility for the ultimate findings and legal conclusions.

The existence of former employment therefore should not be represented as conclusive proof of a constitutional violation. The present record does not support that statement. The stronger legal position is that impartiality must be examined throughout the proceeding, particularly where an adjudicatory official has an identifiable historical connection to an organization participating as an adverse party. Any subsequent rulings, procedural asymmetries, restrictions upon evidence, treatment of parties, or other conduct demonstrating actual prejudgment would materially strengthen a due-process claim. The issue should remain preserved and scrutinized rather than converted prematurely into an assertion that bias has already been judicially proven.

V. The prolonged restriction of proposed property use implicates the Takings Clauses, but a viable regulatory-takings claim requires substantially more than delay or economic inconvenience.

The Fifth Amendment, applicable to the States through the Fourteenth Amendment, prohibits the taking of private property for public use without just compensation. New York's Constitution independently provides that "[p]rivate property shall not be taken for public use without just compensation."

Land-use regulation can, in exceptional circumstances, become so burdensome that it constitutes a regulatory taking. The governing doctrine is highly fact dependent. Under Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), courts traditionally consider the economic impact of the regulation, interference with reasonable investment-backed expectations, and the character of the governmental action. A reduction in property value, standing alone, does not establish a taking.

For that reason, the Takings Clause should be preserved in this matter without being made the principal existing claim. There has not yet been a final permit denial, and the public record identified here does not establish that the property has been deprived of all or substantially all economically beneficial use. Nevertheless, if governmental delay becomes effectively indefinite, if the State ultimately prevents a lawful and otherwise viable use through restrictions whose economic impact is severe, or if the administrative process imposes burdens functionally equivalent to appropriation of protected property interests, a takings analysis becomes progressively more relevant.

The constitutional significance of property in this dispute is therefore broader than an immediate demand for compensation. Property ownership is not subordinate to unlimited administrative discretion. Environmental regulation is lawful precisely because it operates within constitutional boundaries. Those boundaries require the State to justify the burdens it places upon private land rather than treating ownership as permission held at governmental sufferance.

VI. Any permit condition demanding surrender of an independent property right must satisfy the unconstitutional-conditions doctrine.

A related but distinct constitutional doctrine applies where government conditions land-use approval upon surrender of property or another constitutionally protected interest. In Nollan v. California Coastal Commission, Dolan v. City of Tigard, and Koontz v. St. Johns River Water Management District, the Supreme Court held that government cannot exploit discretionary permitting authority to obtain concessions that lack the required relationship and proportionality to the effects of the proposed land use. Koontz further makes clear that the doctrine can apply even where a permit is denied because an applicant refuses an unconstitutional demand.

At present, this should be treated as a preserved claim rather than an established violation. The public materials reviewed here do not demonstrate a demand that UCI convey an easement, surrender a specific property interest, or provide some equivalent exaction. If such a demand exists elsewhere in the record, it should be separately documented and analyzed. The doctrine matters because the State's power to say no to a project does not automatically give it the lesser power to demand constitutionally impermissible concessions as the price of saying yes.

VII. Selective or unequal treatment could implicate equal protection, but that claim requires specific comparator evidence.

The Fourteenth Amendment guarantees equal protection, and Article I, § 11 of the New York Constitution similarly commands that no person be denied the equal protection of New York's laws. In land-use litigation, an applicant may in certain circumstances pursue a "class of one" or selective-enforcement theory by demonstrating materially different treatment from similarly situated parties without a rational basis, or in certain selective-treatment cases, treatment motivated by an impermissible consideration.

This claim cannot responsibly be established by rhetoric alone. It requires comparators. The relevant investigation would identify permits or jurisdictional determinations involving commercial testing, shooting ranges, industrial noise, blasting, mining, temporary mobile equipment, forestry operations, military-related activity, or other projects presenting comparable environmental effects. The inquiry would then examine whether those applicants were subjected to comparable information demands, acoustic standards, hearing procedures, mitigation requirements, timelines, and evidentiary burdens.

If materially comparable activities received materially different treatment and no rational factual distinction explains the difference, equal protection becomes significant. Without that evidence, the claim remains a legitimate investigative avenue rather than a proven constitutional violation.

VIII. Any governmental retaliation for protected criticism, litigation, or petitioning would raise separate First Amendment and New York constitutional concerns.

The applicant possesses the right to criticize the Adirondack Park Agency, challenge its jurisdiction, commence litigation, petition elected officials, communicate with the press, organize public support, and seek redress from government. New York's Constitution expressly protects both freedom of speech and the people's right to petition government.

Accordingly, if regulatory enforcement, additional burdens, adverse procedural treatment, or other governmental action were undertaken because the applicant challenged the Agency, sued the State, criticized Agency personnel, or otherwise engaged in protected petitioning activity, the issue would cease to be merely administrative. It could become constitutional retaliation.

Causation, however, is essential. The existence of litigation followed by additional regulatory activity does not itself establish retaliation. Evidence would be required connecting protected activity to the governmental response. Internal communications, inconsistent enforcement decisions, temporal relationships, statements by officials, departures from ordinary procedure, or evidence that similarly situated parties who did not criticize the Agency received different treatment could become relevant. Until such evidence exists, retaliation should be investigated and preserved, not asserted as an established fact.

The Constitutional Theory as a Whole

Viewed individually, several of these doctrines impose demanding standards. That fact should strengthen the argument rather than cause it to be overstated. The constitutional case against administrative abuse is most persuasive when the evidence is assembled cumulatively.

The position advanced here is not that the APA violates the Constitution whenever it requests additional environmental information. It is not that UCI possesses an absolute constitutional entitlement to discharge a howitzer wherever it chooses. It is not that the State lacks legitimate interests in noise, wildlife, safety, land use, neighboring property, or environmental conservation.

The argument is instead that legitimate governmental objectives do not create illegitimate governmental powers.

An agency cannot cure a jurisdictional defect by prolonging a proceeding. It cannot cure undefined standards by requesting ever more information. It cannot convert political or ideological opposition into technical evidence. It cannot satisfy due process merely by providing additional procedural steps if those procedures never produce an intelligible route toward a determination. It cannot require an applicant to guess what conditions will satisfy government and then characterize the applicant's inability to satisfy unidentified conditions as evidence that the project is deficient. It cannot selectively impose extraordinary burdens upon one applicant without a rational basis for distinguishing that applicant from similarly situated regulated parties. It cannot retaliate against a citizen for challenging the agency. It cannot adjudicate legal rights through a constitutionally intolerable probability of bias. And, most fundamentally, it cannot exercise power that the Legislature never delegated.

New York law provides a direct mechanism for judicial scrutiny of many of these questions. Article 78 expressly permits examination of whether an agency exceeded its jurisdiction, violated lawful procedure, committed an error of law, acted arbitrarily and capriciously, abused its discretion, or rendered a hearing determination unsupported by substantial evidence. Constitutional claims provide an additional boundary where administrative misconduct progresses beyond erroneous government into deprivation of protected rights.

Conclusion

The Adirondack howitzer controversy should therefore be understood as a test of governmental accountability as much as a dispute over one proposed testing facility. Project P2021-0276 presents an unusually clear collision between private property, administrative discretion, statutory jurisdiction, environmental regulation, technical evidence, and procedural fairness.

The government is entitled to enforce the law. It is not entitled to invent authority that the law does not confer. It may impose legitimate standards. It may not leave those standards functionally unknowable. It may demand evidence relevant to statutory criteria. It may not substitute endless process for a decision. It may protect Adirondack resources. It may not use environmental protection as a phrase broad enough to eliminate the requirement that governmental power remain legally bounded, rational, impartial, and reviewable.

From this perspective, the most substantial present claims are procedural due process, arbitrary-and-capricious action and abuse of discretion, error of law, and action in excess of statutory jurisdiction. The impartial-tribunal issue remains important but requires additional evidence beyond the former employment relationship already considered by the Agency. Regulatory takings, unconstitutional conditions, equal protection, and First Amendment retaliation should remain expressly preserved, but each depends upon factual showings that should be developed rather than assumed.

The fundamental principle is considerably simpler than the administrative record surrounding it: the State does not acquire unlimited authority merely because it has regulatory authority. The power to regulate remains subordinate to the Constitution, the Legislature, the evidence, and the rule of law.