Resort litigation: abuse or protection?

TUPPER LAKE – One side sees it as abuse of the legal system; the other sees it as a just cause.

When Protect the Adirondacks, the Sierra Club and one Tupper Lake landowner announced their plans Monday to seek an appeal to a recent court decision, it was clear that the Adirondack Club and Resort project isn’t out of the woods yet.

The initial lawsuit focused on the state Adirondack Park Agency’s approval of 80 “great camp” house lots spread throughout lands classified as resource management, the most restrictive private land category under the APA Act.

The plaintiffs maintain that their arguments have merit, and Protect Executive Director Peter Bauer on Monday charged that the justices who dismissed the suit erred by failing to acknowledge those arguments. Bauer issued a press release Monday but could not be reached for comment Wednesday.

Michael Foxman, lead developer for Preserve Associates LLC, which seeks to develop the ACR on and around Big Tupper Ski Area, disagrees. He told the Enterprise that the plaintiffs have abused the legal system.

Foxman also said the only purpose of the request for an appeal is to keep the project on hold. He then called one particular sentence in Bauer’s press release nonsense, referring to the line that states: “At this time the ACR developers do not yet have final APA permits. Nor have they secured permits from the Department of Environmental Conservation and U.S. Army Corps of Engineers, or necessary approval from the Office of the Attorney General.”

Foxman said the permits haven’t been issued because obtaining them costs money. He explained that when the lawsuit began in 2012, the developers put everything on hold, including the permit process.

“We’ve made our first submissions to the DEC more than five years ago,” Foxman said. “They issued an incomplete, just the way the APA issues incompletes. We went into a back-and-forth with them. We were waiting for the APA vote, and we couldn’t see any reason to go through incredibly extensive engineering that costs well into six figures. Why do that when you don’t know what you’re going to build? There’s no logic to spending thousands of dollars, years before you have to.”

An email to the Enterprise from DEC spokeswoman Charleissa King confirmed Foxman’s statement. King wrote that “Adirondack Club and Resort submitted a permit application which was deemed ‘Incomplete’ via a Notice of Incomplete Application dated October 18, 2010.”

King wrote that the required DEC permits for the project are State Pollution Discharge Elimination System (SPDES) for stormwater and for waste water, Protection of Waters, Water Quality Certification, Sewer Extension approval and Water Withdrawal. Permits are also required from the Army Corps of Engineers and the APA.

Foxman said ACR developers were ready to begin the process for obtaining permits when the APA voted to approve the permits in January 2012, but then the lawsuit was filed so the developers once again backed off. He said the July court ruling set things back in motion.

“We have conference calls every Monday with the professionals,” Foxman said. “The DEC is going to decide if we are handling the stormwater properly, if we need a bigger pipe here or a smaller pipe there. They’re not going to decide if we should develop; they’re going to decide what should be done in our development to see that there’s no negative consequence to the environment. Now it’s just a matter of engineers doing their thing so the water flows properly.”

Foxman said he expects the permitting process to move quickly, meaning developers will begin taking reservations for lots within the next four months.

“I think logic stands that the first home construction is going to be in the next building season,” Foxman said. “It depends mostly on how many buyers sign up and when they sign up. We will start the infrastructure there, but you guys have a short building season. That’s part of the reasoning of the people who are filing the appeal. They are trying to delay us and cost us as much money as they can. They will certainly cost us money with the appeal, it will cost the state money, it will tie up courtrooms. They will delay the start of construction and therefore delay tax income, and that’s all part of their game.”

On July 3, five justices with the Appellate Division of the New York State Supreme Court announced that they unanimously agreed to dismiss allegations made by Protect the Adirondacks, the Sierra Club and three local landowners. These plaintiffs had charged that the APA board failed to complete or heed its own environmental impact studies when it voted in January 2012 to issue permits to ACR developers, but the judges decided those claims didn’t hold up.

Their decision upheld a lower court’s ruling against the same plaintiffs, who opposed the APA’s 2012 approval of the 6,000-acre ACR project, the largest development ever to appear before that agency. The two environmental groups and landowner are now seeking to appeal that dismissal.

A message left by the Enterprise with the Atlantic/Adirondack Chapter of the Sierra Club went unanswered. A message left with the Sierra Club’s legislative office in Washington, D.C., was also not returned.

A page on the Sierra Club’s website echoes Protect’s press release. A statement on that page urges readers to consider: “The proposed 6,000+ acre development plan calls for 206 single family homes, 453 multiplex units, an equestrian center, a marina, a 60- room lodge, parking for 900 cars, and 15 miles of roads and driveways. Lots for several so- called ‘great camps’ in the back-country will range in size from 111 to 770 acres.”

APA Public Relations Officer Keith McKeever said the agency would not comment.