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Tupper Lake developer: Resort lawsuit is 'abuse of the legal process'

March 21, 2012
By JESSICA COLLIER and CHRIS MORRIS - Staff Writers , Adirondack Daily Enterprise

The lead developer on a massive resort planned for Tupper Lake says he's disappointed that environmental groups have filed a lawsuit challenging the state's decision to approve the project.

Michael Foxman of Preserve Associates told the Enterprise on Wednesday he's not surprised that Protect the Adirondacks, the Sierra Club and three Tupper Lake landowners decided to challenge the state Adirondack Park Agency permit in court; however, he thinks their lawsuit is an "abuse of the legal process.

"But I'm not a New York lawyer, and my opinion doesn't matter much," he added.

The lawsuit claims that plans to construct "great camp"-style estates on undeveloped land classified as resource management go against APA statutes. It also argues the APA failed to require a comprehensive wildlife study before granting a permit and that great camp lots aren't clustered in accordance with the APA Act.

The plaintiffs also claim the APA did not get the state Department of Environmental Conservation's approval for a valet boat-launching service and that it's illegal for the Franklin County Industrial Development Agency to issue bonds to pay for sewer, water, road and electric infrastructure.

The lawsuit also alleges the APA violated its own regulations by allowing illegal "ex parte" communications between developers and agency staff, a charge the APA strongly denies.

Fact Box

The Adirondack Club and Resort, proposed for Tupper Lake by a Pennsylvania-based investment group called Preserve Associates, would overhaul the Big Tupper Ski Area and build out the land around it with about 700 luxury housing units and various amenities including an inn, a marina and an equestrian center. It was the biggest project ever to come before the board of the state Adirondack Park Agency, which approved it in January, eight years after it was first proposed.

"There's no basis in fact for any allegations that the Park Agency violated ex parte rules," said APA spokesman Keith McKeever. "It just did not happen."

McKeever said the APA's legal staff will review the lawsuit, "and we'll go on from there."

In addition to the APA, the suit is against the DEC, Preserve Associates and other private companies associated with the development.


Sierra Club

The Sierra Club was involved at the beginning of the ACR review process, but it didn't have the manpower to participate in the extensive adjudicatory hearing process, as many other groups did, though it did keep close tabs on what was going on, said Charlie Morrison, a project coordinator for the Sierra Club's Adirondack Committee.

"We're involved in many ways, and we have been right along," Morrison told the Enterprise in a phone interview.

Foxman said he believes the Sierra Club is simply lending its name to the suit. He said he doubts the green group is pumping any money into it.

"I'm disappointed at groups like the Sierra Club who would lend their name to a frivolous lawsuit that's so harmful to the community, and from what I am told, this is nothing more than that," Foxman said.

"I think if they knew the facts, they would probably withdraw from it, but I can't speak for them," he said. "I just am surprised that they would participate in anything so patently without merit, and where there is, in fact, no environmental issue that is unresolved."

Morrison said the Sierra Club decided to jump back into an active role in the process because it seemed like the right time.

"It's now or never," he said. "This is the last shot at it. This is our best chance of really influencing something and reversing this really bad APA decision."

Morrison said the Sierra Club believes the APA prioritized boosting the local economy over environmental concerns in making the ACR decision. The group is worried about what kind of precedent that could set for other projects in the area.

"We think that this is just about the worst case of sprawl development ever to hit the Adirondacks," Morrison said, comparing it to proposed project Ton-De-Lay and Gleneagles. "The precedent of this for what could happen to other areas of resource management throughout the Park is really horrifying if it's allowed to stand."

Foxman said last November that any lawsuit challenge would be made to help environmental groups raise money, since he doesn't believe anyone could expect to win that type of challenge against the APA for this decision. But Morrison disagrees.

"The only funds we're trying to raise is to cover the costs of the lawsuit," Morrison said. "I can guarantee there's going to be no money left over at the end of it."


AG's office

The state attorney general's office will defend the state in the case. The AG's office has not officially been served with the lawsuit paperwork yet.

A majority of the work the office does is defending state offices and agencies against Article 78 suits, the vehicle for challenging a decision of a state entity. Jennifer Givner, an AG's office spokeswoman, told the Enterprise the office doesn't keep statistics on how many Article 78 suits are filed or defended each year, nor the number of those suits won or lost

McKeever said the APA will work closely with the AG's office throughout the process.


Suit details

The suit is returnable on May 11, which means that's when a judge will hear arguments in the case. But Protect lawyer John Caffry said that in these types of cases, the original return date often gets adjourned for another date.

The attorney general's office would typically be required to file paperwork at least five days before the return date.

Caffry, Glennon and Downs plan to have a press conference today in Albany, where they'll be taking questions from reporters. They decided to do it there because there are more reporters there, Caffry said.

"This is a case of statewide importance, and is not just a local issue," Caffry wrote.

The OWD trust and its trustee, Nancy Hall Goodshall, are named in the suit because a regulation called the "necessary parties rule" requires that petitioner name not only the agency that issued the permit but also the applicant and the landowners. The OWD owns most of the land proposed for the development, though Preserve Associates was under contract to buy it once the APA permit went through.

The DEC is named in the lawsuit because one of the issues addressed in the suit is the ACR's proposed use of valet service at a boat launch owned by the DEC. Emily DeSantis, public information director for the DEC, said her department is "reviewing the petition."


Developers continue

Foxman said developers will continue moving forward with the project.

"There is a DEC process going on; there are things being prepared," he said, adding that materials for being prepared for DEC permits.

Tupper Lakers have largely supported the developers against environmentalists who wished to stop the project, saying the resort is a necessity in their economically depressed community. Comments on the Enterprise's Facebook page Wednesday reflected that viewpoint.



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