TUPPER LAKE - It took two postponements and the better part of a day, but a jury was selected Tuesday and arguments got under way in a right-of-way hearing dealing with the Adirondack Club and Resort.
The hearing, on whether ACR developers can take a 400-by-50-foot right of way on a road owned by The Nature Conservancy on its Follensby Tract, is expected to last through the better part of the week.
It was first postponed in June, after Conservancy lawyers challenged the original hearing date. A state Supreme Court judge ruled the date had been arbitrarily set and granted a two-month delay. Then in August, attorneys tried to convene the hearing, but not enough jurors showed up to go through with it.
On Tuesday, 75 jurors were called, 45 were picked out of a hat, lawyers interviewed potential jurors to eliminate ones who may not be able to make an unbiased decision, and they narrowed the pool down to 12 jurors plus two alternates.
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Opening arguments
In his opening arguments, ACR lawyer Bob Sweeney said he plans to prove his clients have a right, through a stipulation in the state Constitution and a section of state Highway Law, to take the right of way.
ACR principals say it will provide access to what they call a landlocked 1,281 acres of land they hope to develop into a "great camp" lot, which would be part of a greater project that would rebuild the Big Tupper Ski Area and develop the land around it with 651 luxury housing units and various amenities.
Sweeney said that the property is bordered on the east by state Forest Preserve, on the south by a large plot of Conservancy land and on the north by the Raquette River, leaving only the strip of land on the west as a possible place for a crossing. A logging road exists there, and Sweeney said using that road would create the least damage possible to the Conservancy land.
"We're not building something new; we're not tearing up their property," Sweeney said. "We just want to cross where people have always crossed."
Sweeney noted that the 150-year-old highway statute that allows for the proceeding charges the jury to decide two things: whether the property is landlocked and, if it is, how much money the Conservancy should be awarded as a result of the taking.
Nature Conservancy attorney James Cullum, in his opening arguments, said it is the jury's job to decide whether the right of way is necessary. He said the Conservancy plans to prove that it isn't necessary, only something developers want.
He refuted Sweeney's argument that the taking would only affect the smallest twig in the bundle of sticks that make up the Conservancy's property rights.
"This may seem like a twig to somebody else, but it's not a twig," Cullum said. "This is important. This is somebody's property being taken."
Sweeney said he expects to call to the witness stand Jim LaValley, real estate agent and head of the local ACR support group Adirondack Residents Intent on Saving Their Economy, and a local appraiser.
Cullum said he plans to call to the stand Mike Carr, head of the Adirondack Chapter of The Nature Conservancy; a broker from LandVest, a real estate specialist; and Tom Lake, longtime caretaker of the Follensby property.
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Fair jury
As potential jurors arrived Tuesday morning, a group of about 30 ARISE members held signs and yelled to cars in a demonstration outside the building.
Cullum used this as an example of pressures the jury might face, and he asked each potential juror whether they felt like they would be able to produce a verdict that might go against those pressures.
Both attorneys also dismissed a handful of people for a variety of reasons.
Cullum excused three young men who were potential jurors for not being property owners, while leaving on the jury several others who also didn't own property. Sweeney disagreed at first, but after taking the lunch break to research the issue, he said that while that stipulation had been struck down out of most state law, he couldn't find evidence that it had been ruled against in the Highway Law. While he allowed Cullum to use it, Sweeney declined to dismiss any jurors on that basis himself.
Though many people were weeded out of the jury by both ACR and TNC lawyers, several were left in who have connections to the issue.
One is Bruce Smith, a member of the River Ridge Hunting Club in the Follensby area. While he's been involved in the area for a long time and knows Lake, Smith told attorneys he felt like he could make a fair decision in the case.
Another is Jon Kopp, former head of the Tupper Lake Chamber of Commerce, who is representing that group as a party in the adjudicatory hearing. Kopp noted during jury selection that the chamber has taken a position of supporting the ACR pending APA approval, but he said he felt he could listen to the evidence in the right-of-way case and make an unbiased decision on it. Kopp noted that he's been aware of the issue for years, and has been very curious about it, but hasn't formed any opinions about it ahead of time.
The hearing was set to start again at 9 a.m. today at the Aaron Maddox Hall at 179 Demars Blvd.
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Contact Jessica Collier at 891-2600 ext. 25 or jcollier@adirondackdailyenterprise.com.
