Breaking: Tupper Lake jury gives road access over Nature Conservancy land to resort developers

A short time ago, a jury in Tupper Lake awarded an easement to Adirondack Club and Resort developers Michael Foxman and Tom Lawson  across a narrow strip of land owned by the Adirondack Nature Conservancy.

The environment group had declined to give permission to use the parcel, arguing that their private property rights were being violated.

But the jury determined that use of an existing logging road by the resort’s developers offered the only realistic access to a 1200 acre parcel along the shore of the Raquette River.

Access to the property by water is complicated by wetlands and by seasonal weather issues.

The jury awarded the Nature Conservancy $10,000 in damages in compensation for the granting of easement rights.

Developer Michael Foxman said he was pleased by the verdict.  He plans to build a single house on the parcel, which the company has projected could be sold for as much as $5 million.

The easement will be roughly 50 feet wide and will extend for approximately 400 feet over Conservancy land.

Conservancy executive director Mike Carr said he was “disappointed” by the decision and has not yet decided whether to appeal.

The legal proceeding was an unusual one, making use of a state highway law that allowed a jury to be convened by Tupper Lake’s highway supervisor, with no judge presiding.

Clearing this legal hurdle is seen as a major step forward for the resort project.

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33 Comments on “Breaking: Tupper Lake jury gives road access over Nature Conservancy land to resort developers”

  1. verplanck says:

    so much for property rights. didn’t the developer consider access to all his land BEFORE embarking on a costly permitting/legal process?

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  2. Pete Klein says:

    I guess property rights go out the window if someone wants to trash the environment.

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  3. rockydog says:

    oh please you two. it’s a pre-existing logging road and the developer needs just over a football field in length for access. Trash the environment? Pete go write another vampire book and take time off from you nonsensical rants.

    Sorry that was mean but from the heart.

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  4. Paul says:

    Interesting outcome. I tend to side with the TNC on this one. I rarely side with the TNC on anything! I own water (only) access land. There is property like that all over the Adirondacks. There is a private road very close to my property, can I claim the right to take an easement to get to it? Rockydog is right, practically speaking this one is not a big deal but it seems like a legal can of worms to me.

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  5. Paul says:

    Also, can some of these camps or clubs that have been “isolated” by state acquisition claim easements that will get them across a road that was closed, or even cross lots to some other road?? I assume there must be a preexisting road, even if it was private and not a public highway for this to apply. How do you make the distinction?

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  6. Pete Klein says:

    Last comment of the day.
    Rockydog,
    I guess I would be more in favor of the easement if Foxman were building decent and affordable rental apartments for people who want to live and work in Tupper Lake or anyplace else. We really need some decent and affordable housing for the average person if we don’t want to see the continued exodus of average people in favor of those who want to prove how much money they have.
    Now back to work.

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  7. Solidago says:

    Suddenly TNC and the ‘private property has no place in the Adirondacks’ crowd are staunch advocates of property rights? Amusing. I wonder if the Sierra Club and ADK will chime in on this one, completely oblivious to their hypocrisy.

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  8. Paul says:

    Solidago, I agree. But from a legal perspective this is a weird case. Are folks really entitled to get to their property by a road across someone else’s land when they only bought it with water access? Like I say there are plenty of folks that take a boat to their property all the time around here. This basically says, that as long as you have a jury that gives you the thumbs up, and you are willing to pay what they think it is worth you are golden.

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  9. RRcamper says:

    There already was a right of way across this road. It just wasn’t written clearly. The loggers and hunters have been crossing this particular area since the early 1900’s. I’m a member of TNC and they would have been further ahead to sell the access for $100,000. Foxman would have paid. Now they get $10,000. None of the OWD property is being sold as water access only! This is one piece of a much larger parcel which is being sold with all the rights and easements it currently enjoys. Members of the Springhill Hunting club have been accessing their hunting camp at Moody Pond over this road for years.

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  10. mary says:

    Now that this hurdle is done, he just has to get APA approval, and the money to build an improved road. Then, he has got to get utilities and water lines into the new lot (I hope no right of ways are needed…. are they supposed to cross the river as it is the shortest way). Oh, yes, there is that canoe launch he needs on the river — not sure if all the access is there to that one, either.

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  11. Paul says:

    RRcamper,

    If there was a legal right of way already then that is a different story. This law appears to give someone the chance at a ROW where one did not already exist.

    When something is not “clearly written” in a deed then that is a question for the court. It is my understanding that this case was not before a judge like a real property dispute would normally be.

    I don’t care about this case, I am curious about what this specific law allows. Can a jury (without a judge) “award” a ROW when one did not exist (or where there was a question as to the existence of a ROW)?

    Just because there is a ROW for logging purposes that does not mean that one for other purposes exists. Maybe the hunting club members were using the road illegally? If they did it for long enough without dispute from the owner that might legally give them a ROW (I think 30 years is a standard). But again that in no way gives a ROW to the “yet to exist” homeowner on this parcel.

    It is a very interesting case.

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  12. Bret4207 says:

    Does anyone think that the jobs this project will create aren’t worth the measly little easement? It’s no big deal if you’re a well to do lawyer in Tupper but if you’re a struggling young family with few other choices a job supporting the second homes could be a Godsend. That’s to say nothing of the other jobs this will hopefully create.

    I also find it puzzling that so many people always seem to be in favor of the State using eminent domain for the benefit of the general public. Isn’t that what this is? I don’t think too many of my friends in Tupper care too much that they may be working for some rich guy some day if this gets off the ground. What they do care about is that they’ll be WORKING.

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  13. Paul says:

    What I should have said above is that if the hunting club had a prescriptive easement from using the road that does not mean that the owners (OWD) have deeded right of way from the Follensby tract owners that can be transferred to a new owner.

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  14. PNElba says:

    An easement for an owner of a $5 million home on a single lot really can’t be considered the “general public” by any stretch of the imagination.

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  15. John says:

    Hey, it wasn’t that long ago that TNC was giving huge parcels to individual donors, like the Martha’s Vineyard property they sold to David Letterman for a song. Now Foxman can make 5 million on a parcel just like TNC does all the time with the state (and you pay for it by the way).

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  16. RRcamper says:

    The “owners” OWD, leased the land with the access to the hunting club. At one time the hunting club members accessed their land via the Follensby Bridge. Once the logging road was built around Lake Simond Follensby’s owner(McCormick), took away the right to cross the bridge, since they now “had a road to use”.

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  17. dave says:

    “Suddenly TNC and the ‘private property has no place in the Adirondacks’ crowd are staunch advocates of property rights? Amusing. I wonder if the Sierra Club and ADK will chime in on this one, completely oblivious to their hypocrisy.”

    The same could be said in reverse. I’ve seen the same level of hypocrisy from the other side. Some pro-development and property rights advocates have been willing to bend their typical stance on an issue like this and look the other way (or, at the very least, they certainly are not making a stink about it).

    Both seem willing to flip their opinions depending on who benefits from the situation. I’m not sure if that speaks to the complexity of the issue, or to the nature of those involved.

    Personally, I’m uncomfortable with a violation of property rights to this degree unless a case can be made that it somehow serves the general public good. I don’t see how such a case can be made here.

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  18. Bret4207 says:

    Dave, JOBS, JOBS, JOBS. That’s the benefit to the general public good. Had TNC sold it to the State would that have served the public good?

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  19. Bret4207 says:

    BTW- the was a recent post here about Tupper Lake schools having to cut lots of jobs and shut down librarys at LP Quinn. Here’s a chance to broaden the tax base and maybe remedy that.

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  20. Brian says:

    So much for private property rights of taxpaying land owners. But I guess raping private property rights is okay when a big developer wants to do it.

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  21. dave says:

    Bret, exactly how many jobs (temporary at that) do you think the construction of one luxury home on one parcel will produce? Once you have that answer, ask yourself if it is really worth violating private property rights over. I was sure that you, as a staunch conservative, would be inclined to defend property rights in all but the most extreme of situations.

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  22. TiSentinel65 says:

    This seems like a complicated case. It also seems very ironic that The Nature Conservancy, who advocates for crushing individual property rights in the name of conservation, seems to be getting thier rights crushed. Who would have thought?

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  23. knuckleheadedliberal says:

    There is such a thing as “highway law” in NY which sets the rules of roads by use and such. TNC would do well to look up the Fuller Road case from Queensbury as a precedent which would allow them to keep the road closed, if it was legally a road at all.

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  24. Bret4207 says:

    Dave, I am for property rights, but the sheer hypocrisy of TNC (of all groups) crying foul over this is just laughable! TNC and the State have helped close off thousands, probably tens of thousands of acres of land from any hope of development ever. And they want to try and complain about property rights when they get screwed? Pfffft!

    This is a very simple case of “do as I say, not as I do”. And yeah, it does make me a bit of a hypocrite too, but I’ll take the hit if it means some jobs.

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  25. Brian Mann says:

    Hi folks,

    Most of the debate here is perfectly valid, but there are a coupe of points that warrant factual correction.

    To my knowledge the Nature Conservancy has never used eminent domain or any other legal proceeding to acquire land, easements or access from any other property owner in the Adirondacks.

    The organization insists that it operates strictly on a “willing buyer, willing seller” basis.

    I can find no evidence that contradicts this claim.

    The developer, Michael Foxman, acknowledged in an interview with NCPR that he never approached TNC with an offer of compensation for this easement.

    He argues that it was clear that any such negotiation would be unfruitful, which is why he resorted to a legal proceeding.

    –Brian, NCPR

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  26. Mike says:

    Bret, Re: 9/20 6:31 pm post. The tax base may be broadened but with the proposed PILOT program the developer wants, the local taxing entites will be lucky if they see any benefit at all. Most of the PILOT payments will be used to pay off the bond for the developers infrastructure. Present estimates put it at over 50% of the PILOT $$$, and the payments needed to pay off the bond are primary. The whole scheme is ridiculous, the wealthy second homeowners get subsidized by the existing taxpayers. If the home sales fall below the developers crazy expectations or the homes don’t sell as fast and at the crazy prices he is predicting the county, school and town may not see any increase in taxes taken in. If that happens the town still has to provide services to all the new road etc. With no new tax revenue coming in the locals will see their tax burden go up disproportionately to cover the extra expense of providing services to the new, wealthy second homeowners in the development. As it states in the APA application, the project is not economically viable without the PILOT. I realize Tupper Lake needs some form of help economically but if the progect can’t stand on its own without taxpayer subsidies it should be scapped. Keep in mind this is the same developer who has trouble paying taxes on the properties he owns in Tupper and has an especially troubling past regarding banking/finances, Google him and see.

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  27. Solidago says:

    TNC in general and in this case specifically is clearly aligned with groups and people that aggressively challenge property rights in the Adirondacks, such as those who claim that every trickle of water is a public highway on the basis of far shakier legal and practical grounds. Many of those same people seem to suddenly be on the side of property rights and are crying foul in this case.

    Property rights obviously need to be curtailed and even infringed upon in many circumstances. However, there must be a good reason for doing so. I don’t see any hypocrisy in people supporting an easement justified by fairly continuous historical use and a degree of necessity, yet being against the aggressive pursuit of superfluous easements and regulations that have little practical justification.

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  28. Paul says:

    “To my knowledge the Nature Conservancy has never used eminent domain or any other legal proceeding to acquire land, easements or access from any other property owner in the Adirondacks.”

    Brian, the TNC has never, and will never, have the ability to use eminent domain. Eminent domain is something that only can be used by a government agency to seize property (while paying fair market value). The government agency can then sell the property to a private entity but the legal procedure can only be used by the government.

    Otherwise I would probably seize my neighbors property and kick the guy out today!

    The TNC has been under threat themselves of having eminent domain used against them to seize property that they owned. In this one case the TNC under threat of ED decided to donate some of their land to the US Fish and Wildlife Service. See this link for more information:

    http://www.nature.org/wherewework/northamerica/states/texas/press/press3046.html

    Their original stance, to fight the eminent domain proceeding, was consistent with their stance in Tupper. But they eventually had to give in and decided to donate the land. I guess they figured this was a fight that they could not win?

    With all this said. I think it would have been better if Foxman could have quietly spoken to the TNC and tried to arrange a clear legal ROW. Brian, I don’t really understand his answer to your question? Why couldn’t he just pick up the phone and call Mike Carr? He seems to think that he needed some kind of invitation?? Now what you have is a very unhappy neighbor that you have to drive across to get to your multimillion dollar home. I would seriously think twice about buying this piece of property. The whole thing has probably done more to decrease the value of the land than anything else. The TNC may have won a victory by making them drag this out, maybe that was why they didn’t want to talk with Foxman. Brian I would look a little more into it.

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  29. dave says:

    “I don’t see any hypocrisy in people supporting an easement justified by fairly continuous historical use and a degree of necessity, yet being against the aggressive pursuit of superfluous easements and regulations that have little practical justification.”

    In other words, you are for violating property rights when it is for a purpose you deem acceptable, but against it when it is not.

    This is no different than what people on the other side of the issue would say. They just deem different things acceptable.

    If their stance makes them hypocritical in a situation like this… then I do not see how your stance can escape the label as well.

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  30. dave says:

    Could someone point me to a situation where the TNC clearly violated someone’s private property rights?

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  31. mary says:

    I am very interested in the financial part of the ACR plan. 10k for a right away is just a drop in the bucket. Actually, this whole issue is just diverting everyone’s attention away from the APA plan that has been filed.

    I want to know why the ACR has to bond for all the development they plan on doing? Phase 1 includes improvement to the new road to the great camps. It is also include remodelling MacDonald’s boat livery into a new private club for members that can afford to pay.

    this new club is going to get tax breaks and a cheap loan for building this nice clubhouse. It will have a restaurant and bar for the wealthy members.

    The local people will get jobs there — waiters, cooks, etc will be needed. Big tips will be coming to the local folks.

    In the meantime, the pilot provides that payments from the ACR will cover the payback of the bonds borrowed — and some percentage of those payments will actually be given to the schools and towns in lieu of taxes.

    How much will the school district really get out this deal and when? Details are needed!!!

    I am all for the ski area, but alot of the borrowed money in the first five years will not be spent there.

    I hope I won’t be too old to get a job somewhere on the ACR property when it is completed. And I hope i can continue to pay all my property taxes until this job comes about.

    Someone has to pay all those borrowed millions back for the bonds… but although it is said the investors will be the losers, I am having some doubts that they will be the only losers if this development does not live up to what it is promising.

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  32. mary says:

    the posting from Mike says it alot better than I just did.

    Thanks Mike.

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  33. Bret4207 says:

    First off I never meant to imply that TNC has Eminent Domain abilities. I was simply pointing out that no seems to get upset when the State uses Eminent Domain for other projects or buys lands from TNC and locks then up in perpetuity from any hope of development or use. Why is this different? Simple- because some RICH GUY is building homes for RICH PEOPLE. Class envy rears it’s ugly head yet again.

    Mike- I’m not saying this is a perfect plan, but exactly what other options exist in Tupper and the surrounding area? Is OWD making a comeback? Are the woods soon to be full of loggers again? Is Sunmount expanding and hiring? Face it, there are a limited number of jobs currently available in the area. That’s to say nothing of the surrounding Peircefield/Long Lake/Newcomb/Saranac Lake area.

    So just what alternatives exist? Here’s a chance to get the ski area opened on a regular basis, improve the scenery around McDonlads Marina (an eye sore at best) and create some jobs which will create more jobs and maybe more development. Tupper may one day be NY’s Killington area.

    Yup, better to abort any chance than to take some risk, especially if it involves RICH PEOPLE coming to the area and spending money.

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