Protect loses another round in Big Tupper resort fight

Peter Bauer, Protect the Adirondacks

Peter Bauer, Protect the Adirondacks

Protect the Adirondacks and the Sierra Club have lost the first round of their effort to appeal a court decision that upheld the Adirondack Park Agency’s decision to grant permits for the proposed new resort in Tupper Lake.
A state court ruled in July that the APA followed proper procedure in issuing the permits.  Some environmental activists felt that the court’s decision set a dangerous precedent, allowing state officials too much leeway in interpreting laws designed to protect open space in the Adirondacks.
Their request to appeal the July decision, however, was rejected. Jim LaValley, head of a group called ARISE that formed to support the Adirondack Club and Resort project, issued a statement on Thursday praising the decision.
“I am very pleased to report that the Appellate Division has denied Protect’s motion for leave to appeal to the Court of Appeals,” he said.
However, Protect and the Sierra Club announced that they would immediately file one more appeal — expected to be their last legal maneuver — to the New York State Court of Appeals.  They said they expected a decision by the end of the year.
Here is the press release issued by the environmental group:
Statement from Protect the Adirondacks and the Sierra Club on Denial of Motion for Appeal by the Appellate Division, Third Department, to challenge July 2014 decision upholding the Adirondack Park Agency’s Approval of the Adirondack Club & Resort Project
The NYS Appellate Division, Third Department, has rejected a motion for leave to appeal by Protect the Adirondacks, the Sierra Club and a neighboring landowner to challenge its July 2014 decision to uphold the approvals by the Adirondack Park Agency (APA) for the 6,000-acre Adirondack Club & Resort project in Tupper Lake. The Appellate Division, Third Department issued a decision that upheld the APA approvals in July. PROTECT and the Sierra Club will make a new motion for leave to appeal to the NYS Court of Appeals. This motion will be filed within the next 30 days.
Protect the Adirondacks and Sierra Club strongly disagreed with the Appellate Court decision. The lawsuit brought by Protect the Adirondacks and the Sierra Club lawsuit primarily focused on the approval by the APA of 80 “Great Camp” lots spread widely throughout lands classified as Resource Management under the APA Act. The court’s decision did not examine the failure of the APA to uphold the APA Act for development of lands classified as Resource Management. If the Appellate Division decision is upheld, it will create a ruinous precedent that will negatively impact hundreds of thousands of acres classified as Resource Management across the Adirondack Park.
Another principal objection is that the Appellate Division erred when it held that the Adirondack Park Land Use and Development Plan of the APA Act is merely guidance to APA and is not binding on the APA, despite the plain language of the statute to the contrary. This reverses 40 years of legal practice at the APA and accords APA decision-makers with vast opportunities to issue permits with little justification.
The Appellate Division also erred when it held that APA’s reliance upon post- approval studies of adverse impacts to wetlands and wildlife, which had not yet been conducted, as grounds for approval of the project, was not arbitrary and capricious.
The Court also did not examine the APA’s reliance on materials that illegally supplemented the hearing record to make its decision. The Court also failed to examine ex parte communication issues.
A decision by the Court of Appeals on this motion is expected by the end of the year.

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16 Comments on “Protect loses another round in Big Tupper resort fight”

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  1. Heavy says:

    Go Away

  2. seszoo says:

    These people are starting to go into the realm of frivolous lawsuits , about time the court tells them in no uncertain terms about wasteing it’s and everyone elses time and money.

  3. Hugh Hill says:

    Everyone gas the right to an opinion, but how can justice be served by a legal process that can drag on for decades?
    This is not justice, it is abuse of the legal system. Protect and the Sierra Club have lost repeatedly and decisively in every step of this process. These seemingly endless appeals and legal maneuvering are nothing more than harassment, they should be ashamed of themselves.

  4. Jim Braun says:

    As a regular vacationer from Long Island to Tupper, and Saranac Lake, my heart goes out to your towns and people who have suffered through this litigation. As Jim LaValley might remember, I have been looking to purchase a retreat in your area(and move my small water ski school there), but after every summer’s visit I am disheartened to see more loss of business, worsening housing stock, and wonder if I should.

    It’s always darkest just before light, stay strong Tupper Lake

    Bauer needs to move on!!!!!!!!!!!!!!!!!!!!

    Jim Braun
    Belltower Water Ski School, Inc

  5. Paul says:

    This may be playing really well with Protect’s die-hard constituents but it has got to be killing the group otherwise.

    This decision is no “ruinous precedent” as Peter has described. The agency has been permitting homes on Resource Management lands for years? The court knows that and that is one of the many reasons why this stands no chance of succeeding.

  6. Paul says:

    I suppose the next appeal will be to the interplanetary court and then the intergalactic court! Just let it rest guys!

  7. Peter Hahn says:

    I suppose the point is to make sure any future developers of big projects know they will face 10 years of expensive lawsuits before they can start construction (in addition to the APA and everything else). It will certainly discourage potential big-project developers.

  8. Pete Klein says:

    Some people just like beating dead horses to death, over and over again.

  9. Paul says:

    You are damned if you do or damned if you don’t.

    Remember environmentalists were upset when the APA was reviewing a project to build 100 camps on Brandeth park even though all those are going to be clustered together in one area and put on low intensity use land.

    They would have raised a stink here either way.

  10. Mervel says:

    I think Peter has it exactly correct. If you are an investor int his environment, messy litigation for years is the last thing you want to deal with as a cost of doing business regardless of the outcome. I think it would scare future investors off. Investors compare all of the potential options and if litigation is a cost of doing business in the Adirondacks, it is just one more cost/roadblock and would make decisions swing toward other areas which do not have this cost.

    Its not a totally crazy strategy from Protects standpoint of they see a zero development environment as a goal.

  11. Philip Williams says:

    I think it’s important to remember that there are NO legal impediments to ACR proceeding full speed ahead. There is no injunction, no court order, preventing immediately proceeding with construction.

    Every permit ACR has sought has been granted.

    What explanation can they offer as to why there are not proceeding, at least with their own money?
    Investor uncertainty? Certainly not about the legal proceeding. Or is it just lack of interest on the part of buyers?

    Their business model (borrow to build, ask the gov’t [Franklin County] to borrow, pay for and build utilities and accept PILOT payments over years and years on bonds, and property tax breaks) is very old fashioned. Real estate has changed enormously since this proposal was set out there.

    The ACR looks like a very long shot even without the very remote possibility of a writ or appeal being granted to its opponents.

  12. Paul says:

    The threat of ongoing litigation is always an impediment. Not a legal one but an impediment. As I understand it they have a number of LOI’s signed despite the legal wranglings. That surprised me. I just didn’t think they would have interested buyers. Too much other (better) inventory out there? Maybe they will be successful. At this point they deserve a shot.

  13. Mervel says:

    Yes it is interesting.

    I am not a big fan of this investment group, it would be interesting to see how much they have spent on legal fee’s through this process?

    My guess is they don’t have their act together, they don’t have the capital needed and they may just be in a holding pattern waiting to sell. It is a good point that Phillip made; they can build now, there is no legality standing in their way, so whats the hold up?

  14. Dave G says:

    Phil & Mervel, Good observations, as the old saying goes, “talk is cheap”. The ACR lead developer in Tupper Lake keeps alluding to a slew of these so called “secret Investors” just waiting in the wings,waiting for what nobody knows. It’s well known throughout northern NY that the ACR hires various contractors to do work, they are pretty good at that. What they are not good at is paying the contractors once the work is done. It’s also well known that they don’t/can’t pay their property or school taxes on the properties they own and that the main honcho has Fed tax liens over 300K. And one of the biggest questions no reporter ever asks these guys is when they actually plan on buying the land they propose to develop. Maybe next time Brian Mann interviews someone from the ACR he will ask that question. Some other old sayings also come to mind, Smoke and Mirrors, House of Cards, Ponzi Scheme etc

  15. Jim Braun says:

    regarding what Peter Hahn said….It discourages little investors too! By the way, where do the Protect and Sierra Club buy their clothes and food? Not in the Adirondacks, apparently.

  16. Paul says:

    Brian, It appears that the Nature Conservancy is going to get a permit at the October APA meeting to subdivide Resource Management lands they own near Long Lake. I don’t see any opposition to that project? There simply isn’t a “ruinous precedent” here this is just an effort to block one specific project. That is fine. Just be honest and say what you are trying to do. Don’t veil it in this made up stuff.

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