Wednesday, December 17, 2014

Plaintiffs In Tupper Resort Suit Lose Final Appeal

cranberry pondEnvironmentalists challenging the proposed Adirondack Club and Resort in Tupper Lake have lost their bid to continue their lawsuit against the developer and the Adirondack Park Agency.

The Court of Appeals, the state’s highest tribunal, today rejected a motion by Protect the Adirondacks and the Sierra Club seeking permission to appeal a lower court’s dismissal of the lawsuit.

The green groups contended, among other things, that the project violated the APA Act by fragmenting timberlands into “Great Camp” estates. The APA, which approved the project in January 2012, maintains that the project is legal.

“We’re very disappointed in the decision,” Peter Bauer, executive director of Protect, told Adirondack Almanack. “It takes thousands of acres of timberlands and puts them on the chopping block.”

Bauer noted that the developer, Preserve Associates, still needs to obtain final permits from the APA as well as approvals from the U.S. Army Corps of Engineers and the Franklin County Industrial Development Agency.

“We’ll monitor these approvals as the project goes ahead, but we don’t anticipate pursuing this legal action,” he said.

Protect has filed a related suit in Warren County seeking e-mails between the APA and the office of Governor Andrew Cuomo. Bauer said that suit had been on hold pending the outcome of the main lawsuit. “What we will do with that case, I can’t say at this point,” he said.

Jim LaValley, a Tupper Lake realtor who has been a booster of the project, thinks it’s time for the environmentalists to step aside and let the project go forward. “Obviously, we’re excited by the decision,” he said. “It’s not a surprise.”

APA spokesman Keith McKeever said the agency also is pleased with the decision. “We look forward to the implementation of this transformational  project,” he said.

Preserve Associates wants to build eighty single-family homes, including thirty-five Great Camps, on 4,700 acres of lands designated Resource Management, the strictest of the APA’s land-use classifications for private land. The primary uses of RM lands include forestry, agriculture, and hunting, but single-family homes are listed among the authorized secondary uses.

The APA Act says homes on RM lands should be built “on substantial acreages or in small clusters.” The plaintiffs contended the developer’s project will do neither. The APA argued that the language in the plan is merely a guideline, not a mandate.

Bauer said the decision opens the door to other subdivisions that fragment the forest. “The courts are not the solution; we learned that the hard way,” he said. “The solution is statutory change.”

The Adirondack Club and Resort also includes plans for town houses, a hotel, shops, and other amenities near the Big Tupper Ski Resort.

Photo by Carl Heilman II: The developers would draw water from Cranberry Pond for the Big Tupper Ski Resort.


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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.

28 Responses

  1. Greg M says:

    Glad to see this frivolous round is over. Even happier to see Peter’s response: “The courts are not the solution; we learned that the hard way…the solution is statutory change.”

    While we may disagree on certain things, I do agree that *if* changes are needed, it needs to be in the statutes and not lawsuits.

  2. Bill Ingersoll says:

    Thanks for the reporting, Phil. However, the State Land Master Plan is referenced twice, incorrectly. The SLMP has little direct bearing on private land development.

  3. Phil Brown says:

    Thanks, Bill. I fixed those mistakes.

  4. Paul says:

    Let it snow, let it snow, let it snow!!

    When can we start making snow on Mt. Morris?

    I hope Big Tupper has some help from mother nature this season.

    • Skier says:

      Paul, “We” could have started snowmaking on Big Tupper immediately if the ACR developers had serviced and maintained the snowmaking system that was in place when they purchased the mountain. Instead they sold it all off for peanuts, now they will need to spend Millions to get a whole new system up and running. Don’t hold your breath, it will be many years, if ever, before you see Big Tupper operating at full steam. Mother nature just doesn’t provide enough natural snow any more to run a ski area in the Northeast.

  5. Local Hopefull says:

    I guess now we will find out who all those secret investors in the project are, if there are any. Everyone in Tupper Lake is hoping that Big Tupper gets all the upgrades we have been promised for years, we really need that fully operational as soon as possible.

  6. Lake Champlain says:

    NOW can the project proceed??? I consider myself an ardent environmentalist who wants the Adirondacks protected, but this project, as big as it seems, has jumped through every hoop and over, I say hopefully, every hurdle, to get approved. It has been thoroughly vetted and approved by agencies that pored over all the evidence and heard more varied opinions expressed than they want to remember. The process seems to have worked and now it’s time to get this project started.
    Let’s hope the investors have not been scared off and/or tired of waiting; this seems to be a planned resort that tried to satisfy most of the concerns of people questioning development and it remains to be seen if it will be economically viable, which of course is crucial.
    For all the good people on both sides of this issue, it is time to move on and see how 21st-century ideas work. And speaking of work, for the good people of Tupper Lake and the surrounding area……
    On a day when fracking in NY has been banned–Yay–and 3 casino sites have been selected(jury is out on that), for the people of the southern Adirondacks this court decision might have been the most important of all for them.

  7. Dick Carlson says:

    The marketplace will be the final judge. The North Creek area with a large installed ski area can’t support any of the proposed resort developments. The interconnect lift didn’t do anything, the ski train languishes, and all the plans for hotels, townhouses and ski-in, ski out accommodations is still pie in the sky. Big Tupper is a great ski hill but the market won’t support any of that development.

  8. Davis Moquin says:

    Cheers and best of luck to meaningful attempts to revive Tupper Lake. It’s still amazes me that after all this time a compromise could not be worked out to better protect the thousands of acres of backcountry of ACR land. I guess in the heat of argument concepts like clustering or easements just never made it to the table. Perhaps they will by the time the next megaproject is proposed.

    • Paul says:

      Davis, there is clustering of much of the development and there is green space set aside (easements). I am no expert but if you look at a map of the project. Most of the development is clustered around the ski area. None of the properties riverfront land is developed. And all of the project is in close proximity to the hamlet of Tupper Lake.

      From the record it indicates that the APA permits do not allow any development within a quarter of a mile of the raquette river. It does not allow any development within 100 feet for any wetlands on the property. 4500 acres of the land is left as “open space”. Apparently (according to the court) that is 86% of the entire property. The APA permits require deed restrictions (easements) to protect that land in perpetuity.

      I personally don’t think the market can support the parts of the development that has the “great camps” mainly because they are not on the water like potential buyers would want (especially at the prices they are asking). But maybe they will sell. The bugs at these “great camps” are not gonna be so great!

  9. Dave Gibson says:

    Davis, your concepts definitely “made it to the table” during over 2 years of “mediation” with dozens of parties, requested by Michael Foxman the developer. This was all pre-hearing. Largely, Mr. Foxman rejected those concepts. He and his team were not negotiators. They took what the APA granted them.

  10. Just about everyone on both sides of this issue would like to see a re-vitalized Big Tupper ski area. Regrettably, it will be many years before the ski center sees the kind of investment from the developers that will be necessary for snowmaking, lifts, grooming equipment, lodges and other infrastructure to make Big Tupper a viable, competitive ski area. Investment in the ski center is contingent upon successful sales of Great Camp lots, and even under ACR’s most optimistic sales projections, that investment will not even begin for at least several years.

  11. Plaintiffs in Tupper Resort Suit Lose Final Appeal » Upper Saranac Lake Association says:

    […] Read Article […]

  12. Big T Fan says:

    Dick C And Jeff F are right on the money. It’s unfortunate that the ACR has dangled the Big Tupper carrot in front of all the locals for support. Look at their own phasing plans, it will be many years before Big Tupper gets any meaningful upgrades.

  13. Paul says:

    Titus seems to be doing pretty well.

    Maybe the folks that want to see the ski area as a higher priority for the development just need to work with the developer and convince them that it is a more important part of the business plan than they think.

    The days of folks complaining of what isn’t going to happen should do what they can to make it happen.

    Perhaps this is something that ARISE is already working on. Now that the major road blocks seem to have been cleared (just in time for the long deep freeze!) maybe things will go better. Of course there is still many opportunities for opponents to throw more monkey wrenches into this.

  14. adkcamp says:

    If I am not mistaken, under Foxman’s development plan, Big Tupper remains open to the public for 80 years. And then what? Forman’s love affair with the town of Tupper Lake has its limits…. just wait and see.

  15. Jim LaValley says:

    It is easy to sit at a distance and surmise what will, or will not happen with the Adirondack Club in Tupper Lake or about the people involved. We have said from the beginning, that our door is always open for anyone to come by and hear directly what the plans are. There are no secrets, and we are excited about the future of our community. If you have questions, instead of posting what you think is fact, please contact us. We’re easy to find and more than happy to meet.

    • OK, so what is the timeframe for investment in snowmaking, lifts, grooming equipment, lodges and other infrastructure improvements necessary to make Big Tupper a viable, competitive ski area. How much $$ is the developer planning to ultimately invest in re-development of the ski area?

    • Wayne says:

      Good reply Jim. So many people want to debate the issue solely on second hand fables and hearsay..
      When they have a distaste for facts,they appear to make up their own version.

  16. adkcamp says:

    So what are the plans for the mountain? will it remain “forever open” to the public? Is there a term limit on recreational use of the mountain for the public, the people of Tupper Lake? What is Foxman’s plan for the mountain and future generations of Tupper Lake residents? I assume Mr. LaValley knows the answer to this and in as much time as it took to invite the public to his office, could inform the public on the facts. Clarification by the experts is always helpful.

  17. Cutter says:

    Jim Lavalley says there are no secrets, OK. Who are some of these investors? Back in April Tom Lawson was quoted in the local paper that he had taken 6 reservations from people ready to buy Great Camp lots and build on them> Lawson went on to say these people were committed to the tune of $20 Million. Certainly seems easier to answer the question here rather than me contacting this Lavalley guy and driving to Tupper Lake for answers.

  18. Dave S says:

    Question for Mr Lavalley. Has the ACR actually purchased the OWD property yet? If not, how can they say they are going to be “in the ground” by summer? Don’t they have to own the land before they can sell it to someone else to build a Great Camp on?

  19. Jim LaValley says:

    The information below is similar to a response I posted on another blog that was offering similar questions, comments, and criticisms – which appear to be from the same individuals. While I admire the passion of the folks involved in the discussion, it is too difficult to answer a question without generating 2 or 3 more questions. That’s why a face to face meeting would work much better. And, it’s unfortunate that some of those writing have a tone that seems to wish failure on the Adirondack Club, Big Tupper, and the community. If the crime is putting ones money, time, and life behind “The Project”, then I guess we are guilty. I also don’t see anyone coming up with a ‘Plan B’ , and standing behind it with their own money.

    Let me try to answer a few of the questions – 1. No, the investors do not own the Oval Wood Dish lands – yet. They are under contract to purchase and it is contingent upon the investors receiving all of their permit approvals. The time to purchase the property is coming, and it will happen. The current owners are more than happy with the contract and are totally supportive of the ACR effort. We anticipate that there will be sales on the Great Camp parcels in 2015. 2. Big Tupper is one of the centerpieces of the project and is on the early list of priority efforts for the developers. We spent two hours this past Saturday with a design team to discuss lodge construction; trail improvements; and snowmaking. There is a substantial capital cost to all of this, and that is being worked out. The project developer knows that the ski area, the golf course, and the marina are important amenities to work on, to show likely buyers what their commitment is. And yes, the ski area is going to stay open to the public. In an effort to show his commitment to the local people, Mike Foxman has several incentives for the kids that have not been made public – including free skiing to students with perfect attendance records. 3. I continue to believe that the ski area cannot survive without some sort of supporting amenities. Spend 10 minutes with any of the private ski area owners and you will see the struggles they face. When you count on a large percentage of your annual revenue to come in during Christmas week, and then it turns 40 degrees and rains – it’s tough to rely solely on the skiing. 4. OK – I do have to keep one secret… who some of the investors are. Some are not prepared to have their names out in public. Others have been seen in town and in the newspapers, recently. 5. There are a number of folks (not just in this forum) that are expecting certain things to happen immediately. The litigation was just settled, and there are a few items that are being finalized. There are a number of things that have been underway that may not be as visible, but are part of the building blocks for the overall project. No one is sitting quietly on this end. It is a full court press on all fronts.

    I hope all of you will visit Tupper Lake and Big Tupper this winter – once the snow returns. And please know that we continue to welcome the opportunity to meet face to face.

    • Since there is no information regarding the developer’s plans for the ski area in the response above, I’ll re-ask my question. What are the plans, timelines and budgets for the improvements proposed for the Big Tupper ski area? Surely there must be more than just “We spent two hours this past Saturday with a design team.” I’d like to hear some actual numbers and details that demonstrate that revitalization of the ski area is a REAL commitment on the part of the developers, and not just a carrot that’s being dangled in front of the community.

  20. Dave S says:

    Jeff, Don’t hold your breath for any specifics. I’m not sure how there will be great camp sales in 2015 if the ACR won’t purchase the property until they receive all their permits(DEC,Army Corps, Health Dept, Comptrollers Office).
    Same old BS that they have been spinning for years.

  21. Jim P says:

    I have been watching this story unfold from the beginning. In the 30 plus years that I have been visiting, I have seen a very noticeable decline in the quantity/quality of lodging and restaurants in town. I believe that the ski area is the most important part of this project to attract visitors and boost the local economy so that business owners expand and upgrade their facilities. Since the project just left court in the last couple of weeks, I think that people should give the developers a chance to make good on their promises of attracting investors and upgrading the ski facilities before they begin throwing bricks. I’m am not a winter sports enthusiast basically because I am an accountant who works all winter. I visit Tupper Lake every year for the fishing. It is in my opinion the best fishing lake in the Adirondacks and should be marketed as such. If the developers are diligent in taking all of the assets of Tupper Lake into consideration, this project can ultimately be a great success and Tupper Lake can be the town that it use to be. Good Luck. I’ll see you in the spring.

  22. adkcamp says:

    I have been away, off grid for 10 days and find that there is still no answer – will the ski slopes be open to the public ALWAYS? Has there EVER been a discussion of the mountain becoming private, accessible to the ACR owners only? if yes, what are the details?

    I am unable to put my finger on the article from the Adirondack Daily Enterprise where I read that the ski resort will revert to private property within several decades of build-out.

    Simple question – will it ever be closed for recreational use to the average folks in Tupper? Will the townspeople ever be required to pay membership fees (akin to assessment fees for ACR owners) to be able to use the mountain? How about a direct answer?

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