Thursday, September 18, 2014

Foes Of Tupper Lake Project Denied Leave To Appeal

ACR-aerial3Opponents of the proposed Adirondack Club and Resort in Tupper Lake have suffered another legal setback in their quest to stop the project.

The Appellate Division of State Supreme Court has refused to grant the opponents leave to take their case to the Court of Appeals, the state’s highest tribunal.

Peter Bauer, executive director of Protect the Adirondacks, said the opponents will file a similar motion with the Court of Appeals itself within thirty days. The high court is expected to issue its decision by the end of the year.

Protect the Adirondacks and the Sierra Club, along with a private citizen, filed a lawsuit after the Adirondack Park Agency approved the project in January 2012. The plaintiffs contend, among other things, that plans to subdivide timberlands near the Big Tupper Ski Area into 80 “Great Camp” estates  violates the Adirondack Park Land Use and Development Plan.

In July, however, the Appellate Division upheld the APA’s decision, ruling that the section of the land-use plan cited by the opponents is merely advisory, not mandatory. (Click here to read an in-depth look at this issue.)

“The Appellate Division erred when it held that the Adirondack Park Land Use and Development Plan of the APA Act is merely guidance to the APA and is not binding on the APA, despite the plain language to the contrary,” Bauer said in a news release Thursday. “This reverses 40 years of legal practice at the APA and accords APA decision-makers with vast opportunities to issue permits with little justification.”

If the Appellate Division decision stands, Bauer said, “it will create a ruinous precedent that will negatively impact hundreds of thousands of acres … across the Adirondack Park.”

Jim LaValley, a Tupper Lake realtor who has been an outspoken booster of the project, accused Protect and the other plaintiffs of stalling the project, though he predicted it will eventually go forward.

“I believe the path is clear where this is going,” LaValley said. “I think it’s really unfortunate that Protect is tearing bridges down rather building bridges.”

Because the Appellate Division’s decision in July was unanimous, the plaintiffs need permission to take the case to the higher court. In an order filed Wednesday, the motion for leave to appeal was denied by same five judges who took part in the earlier decision. No explanation was given.

Photo by Carl Heilman: Cranberry Pond near the Big Tupper Ski Area.


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Phil Brown

Phil Brown is the former Editor of Adirondack Explorer, the regional bimonthly with a focus on outdoor recreation and environmental issues, the same topics he writes about here at Adirondack Almanack.

Phil is also an energetic outdoorsman whose job and personal interests often find him hiking, canoeing, rock climbing, trail running, and backcountry skiing.

He is the author of Adirondack Paddling: 60 Great Flatwater Adventures, which he co-published with the Adirondack Mountain Club, and the editor of Bob Marshall in the Adirondacks, an anthology of Marshall’s writings.

Visit Lost Pond Press for more information.

34 Responses

  1. Paul says:

    Phil this is complicated legal stuff. So they wanted to move their case to the higher court? But they could not do that unless this court said it was ok? And with this decision they said no. Now they also have the option to file directly with the higher court? Is that right? Thanks.

    I think there might be an “is” missing in the quote from Jim LaValley? Unless that is kind of like caveman speak!

  2. Phil Brown Phil Brown says:

    You got it, Paul. They need permission from either the Appellate Division or the Court of Appeals to appeal the July ruling. Since Appellate Division rejected their motion, they intend to file a similar motion with the Court of Appeals.

    I fixed the quote. Thanks.

    • Paul says:

      Thanks. I wonder why they think that the Court of Appeals will see this differently? Seems like pure desperation?

      • Phil Brown says:

        A different panel of judges may see things differently. That’s the hope of every appellant.

        • Paul says:

          Sure, I understand.

        • Avon says:

          As a litigator, I appreciate your pithy answers – they’re as accurate as they are concise!
          A lot of people are confused by the fact that there is a high court above the “Appellate” court, just as they’re confused that the trial-level court is called the “Supreme” court (it has the broadest possible jurisdiction for a trial court). The scheme is left over from centuries of practice, but there’s never enough of a critical mass of political will to amend the State Constitution to simplify the system, combine the many overlapping trial-level courts, or even update the nomenclature.
          So meanwhile, brevity and clarity are the best we can get.

  3. mike says:

    Was this a 5-0 decision again? Has the Court of Appeals ever taken a case with two 5-0 rulings? I mean, in the history of the court have they ever done this?

  4. Jim McCulley says:

    They don’t have a prayer of advancing. We won WWII 5 years quicker then the APA took to clear this project. It was well thought out by the APA. At this point it’s sour grapes Protect will never win.

  5. Phil Brown says:

    Yes, the motion was rejected in a 5-0 vote.

    • Peter Bauer says:


      The same 5-judge panel at the Appellate Division that ruled against PROTECT-Sierra Club in July also ruled 5-0 against our motion for leave to appeal. It was highly unlikely that they would allow an appeal of their own decision. We always planned to make a motion to the Court of Appeals for a fresh, hard look.

  6. Don Dew Jr. says:

    Stare Decisis- “to stand by that which is decided”

    • Avon says:

      Stare decisis is the rule by which any court needs to be consistent from case to case. But it does not go so far as to allow a court to grant leave to appeal a decision to a higher court, even if that court still stands by its opinion. Nor does it go so far as to prevent a court from correcting an earlier mistake, or adapting to other changes such as new Constitutional mandates or long-term cultural advancement (such as equal rights for classes of citizens). Despite stare decisis, the US Supreme Court no longer says you can give the races “separate but equal” public facilities (as it did in 1898) or that you can intern American citizens whose ancestry was 1/8 or more from a certain nation (as it did in 1943-44).

      Stare decisis certainly can’t stop the Court of Appeals from reversing an Appellate Division decision … after all, that is the very purpose of the Court of Appeals.

      Plus, there’s a cynical saying among lawyers in New York State: “If you want to know what the law really is, read the DISSENTS in the Third Department” Appellate Division!

      • Don Dew Jr says:

        Avon you say “Stare decisis can’t stop the Court of Appeals from reversing an Appellate Division decision” Can it be used as a reason NOT to reverse an Appellate Division decision? In other words the decision of the previous court stands. Also have to chuckle at your dissenters comment. In this case there were none.

  7. Suzinator says:

    Let Protect keep appealing. Protect has lost face in all of their
    appeals. It is just a matter of time and it is all over . Face the facts.

  8. adirondackjoe says:

    i can’t believe this has gone as far as it has when it seems the facts are clearly on on our side. are there things in play that i or anyone else knows about political or otherwise? do we stand a chance to beat this thing back? i hope so.i intend to donate as much as i can to protect the adk to try.

    • Wayno says:

      The ADKs we’re never intended to be ALL ‘Forever Wild’. People are supposed to live here and make a living, it is a place without parallel. The tricky part is finding the right balance. It is plain to most of us that that balance has been lost, the economy of most of the communities are hurting so things need to be done to correct that. If the communities are allowed to grow, especially by adding wealthy residents, then the building will add jobs and the amount of money in local circulation will also increase, hopefully leading to a more prosperous Town of Tupper Lake. It might work, no one has stepped up with a better idea so this is the one that we have to go with. It’s time to give it a chance

  9. Mark says:

    Adirondack Joe

    “Your side” got beat by the facts. Keep contributing to Protect. They will need it to try and repair their broke reputation. Nothing makes me happier than seeing Peter Bauer snivel.

  10. Suzinator says:

    AdirondackJoe, keep contributing to Protect they are going to need a lot more money after this colossal failure. Time to wake up and realize it is over.

  11. Wayno says:

    This should all end. The process worked, the plan approved by the APA is a much better one than originally proposed. The developers have waited and gone through all that has been required of them now they deserve a chance to make it a success. I personally remain skeptical that it will succeed but for the benefit of the Tupper Lake economy I hope I am wrong.

  12. chris says:

    To quote your referenced article:

    “Bob Glennon, a former APA counsel and executive director, contends the court’s ruling calls into question virtually all of the plan. “What an irony is here,” said Glennon, who is now on the board of Protect the Adirondacks. “We go to court seeking to force the APA to do its job, and it comes away with a free pass allowing it to do so only if it wants to.”


  13. jay says:

    Sometimes you win and this time you lost.Now can we put people to work in much needed jobs?

  14. Paul says:

    I don’t understand why Peter thinks this creates a “ruinous precedent” . The APA has been approving single family dwellings on Resource Management lands for years. What is new here? Many of the structures permitted here have far more green space than other structures approved on other RM lands?

    • joe says:

      You are right Paul. RM lands have homes. They are within the law and always have been. These proposed great camps are on hundreds of acres with a camp and the rest of the land under conservation easements.

      You simply cannot tell an owner with hundreds of acres that they can’t build a house. The law never said that. It is not a ruinous precedent. But it might ruin Protect.

      • Paul says:

        I was really surprised to see that they were not planning to develop their river front land. Environmentalists should be very happy with that part of the plan.

  15. Peter Klein says:

    Sometimes it is best to stop beating a dead horse to death.

  16. Charlie S says:

    >> jay says:Sometimes you win and this time you lost.Now can we put people to work in much needed jobs?

    It’s always about jobs Jay.Fifty years from now it’s going to be about jobs too.Personally I think the jobs thing is a carrot,something to throw out so that a hunger is quenched.

    Suzinator says: Time to wake up and realize it is over.

    Yep let’s just throw in the towel,give up,surrrender.Yes sir Mr. Developer take more of our beloved Adirondacks away.

    • Paul says:

      This is not “our” land it is private land with owners. It is not NYS land. We had and extensive a say in what will go on on the land and decisions had been made. Sure, some don’t like those decisions but that is life.

  17. adirondackjoe says:

    well put charlie s.

  18. jay says:

    Charlie S
    Yes it is always about jobs-You must be either on welfare or won the Lottery if you don’t think jobs are always important.

  19. Charlie S says:

    Jobs are important Jay? So are what remains of this planets ecosystems. So is what remains of our clean water.
    So is the air we breathe.So is serenity and places to go to get away from the ever-expanding hungry, insatiable, noisy human race.

  20. Mark says:

    Fifty percent of the park is forever wild state land. Go there to get away from the rest of us.

  21. Paul says:

    I noticed that the Nature Conservancy has applied for a subdivision permit on Resource Management land they own in Hamilton and St. Lawrence counties? Is there opposition to that project? On principle it is the exact same thing. Or is this really opposition to one specific project?

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