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Some environmental activists have continued to oppose the ACR project.  File photo
Some environmental activists have continued to oppose the ACR project. File photo

Nearly two years later, Big Tupper resort tangled in court

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We reported yesterday that a volunteer group ARISE plans to reopen the Big Tupper ski area this winter. The group is hoping to keep the ski area active until the Adirondack Club and Resort project moves forward.

Many locals hope that developers will eventually reopen the mountain as a commercial ski center, helping to revitalize the village's economy.

The resort received the permits that it needs to build hundred of homes, condos and great camp mansions nearly two years ago from New York state.

But the project has been on hold ever since, because of a lawsuit filed by green groups. As Brian Mann reports, it now appears that a final decision could come early next year.

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Developer Michael Foxman thinks the project will move forward early in 2014. (File photo:  Brian Mann) Peter Bauer heads Protect the Adirondacks.  NCPR file photo Critics say the project would fragment thousands of acres of habitat and timberland.  Supporters say the resort will revitalize Tupper Lake's economy.

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In January of 2012 the Adirondack Park Agency commission voted 10-to-1 to give the green light to the massive resort development in Tupper Lake known as the Adirondack Club and Resort.  Shortly after the vote, APA chairwoman Lani Ulrich described the day as history-making.

"I think the eyes of the state, it's not just the park, are on this project. To see how it actually goes. The challenge is to the community of Tupper Lake and to the applicant. Make good on what has occured today."

But nearly two years later, the project in Tupper Lake – the largest single development ever approved by the Park Agency – remains in legal limbo. 

"There will be oral argument in January and the probability or possibility of a decision by the court in March, possibly before."

That’s Michael Foxman, the lead developer. 

His company is taking an active role in the litigation, even though the suit – filed by the Sierra Club and Protect the Adirondacks – primarily targets the Park Agency.

Foxman says in theory the resort development can move forward while the litigation is underway, but he says the legal fight that followed the APA’s decision has had a “chilling effect” on investors and buyers.

"We have a legal right to deal with the property as though the litigation had not been filed because there was no attempt to adjoin us from proceding. But as a practical matter, if you were a bank you would want to know that the litigation was over before you made a loan to us or to a buyer. And if you were a buyer, you would want to know you weren't going to close and pay your money before the litigation was over."

Tupper Lake village mayor Paul Maroun, a long-time supporter of the development, says the delays caused by the lawsuit have infuriated many local residents.

"I don't think there's going to be a ruling from the appellate division until at least February or March of next year. I think it's unfortunate, but that's the process that everybody has the right to go through."

But Maroun says he’s confident that after years of review and litigation, the resort will still go forward once the final hurdles are cleared.

"Although it's frustrating for local officials and for residents, especially in the Tupper Lake area, where everyone is hinging on it. It's going to happen eventually"

The man at the center of this lawsuit is Peter Bauer head of Protect the Adirondacks.  He says it should come as no surprise that the legal fight over the resort’s APA permits has taken so long.

"We certainly anticipated that it was a complicated lawsuit and that there would not be a speedy outcome. But we looked at this based upon the merits. Even if it's unpopular, we knew it was the right thing to do."

In their legal filings – known as an Article 78 suit – Protect argues that the Park Agency short-circuited proper procedures and ignored regulations in issuing permits for the resort. 

"We didn't think it was appropriate to walk away and turn a blind eye to these violations of long-established proceidures. We feel just the same today, after lost of criticism and tremendous amount of expense. We feel just as committed to this lawsuit today as we did when we originally brought it."

In new arguments filed earlier this month, Protect and the Sierra Club are also demanding yet again that they be allowed to gather more information on the role the Cuomo administration played in this decision.

That request for more discovery of information was denied earlier in the lawsuit but the green groups are now appealing.

One accident of history in this long process is that the resort development has been kept on hold at a time when the national real estate market was tanking.  The market here in the Adirondacks has been slowly recovering.  The developers clearly hope to move forward at a time when the cycle is on the upswing.  Michael Foxman says he remains confident that the APA permits will survive this legal test.

"The litigation is as frivolous and the opponents are as unlikely to win as we've always said. I can't even envvison a court overrulign the APA and saying it had not done it's job properly."

It’s unclear what would happen next if the courts do overturn some or all of the resort’s permits.   If the permits are validated, Foxman says he hopes to begin closing on some of the great camp lots early next year. 

However the court decides, there is the possibility for an appeal, which means that the legal fight could drag on even longer.   

 

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