State lawyers lend support to Tupper Lake resort lawsuit

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November 26, 2008

By JACOB RESNECK The Press Republican Wed Nov 26, 2008, 05:50 PM EST

TUPPER LAKE — The State Attorney General’s Office is supporting a legal challenge brought by opponents of the proposed Adirondack Club and Resort.

The “friend of the court” brief — filed on behalf of the State Department of Environmental Conservation — supports claims brought by environmentalists and residents challenging the Town of Tupper Lake’s rezoning of 6,248 acres as a “planned development district” in 2006.

That move was in anticipation of hundreds of luxury homes and a revitalized Big Tupper Ski Area, which closed in 1999.

The lawsuit contends the Town Council should have ordered an environmental study before reclassifying the property into a single planned development district.

A Franklin County judge dismissed the residents’ lawsuit a year ago.

But the case was rekindled in September when plaintiffs appealed.

Lawyers from both sides will deliver oral arguments next month before the Appellate Division of State Supreme Court.

WEIGHING IN

State Assistant Attorney General Susan Taylor recently filed the brief that says the town failed to fully comply with state environmental law in rezoning.

“The town board’s decision to approve the rezoning without taking a hard look at the environmental impacts of its legislative action was inconsistent with (the state environmental law’s) goal of incorporating environmental considerations into the decision-making process,” she wrote.

DEC spokeswoman Lori Severino emphasized that the filing doesn’t mean state agencies are taking sides in an ongoing dispute between the resort sponsors and critics who contend the project is too big for Tupper Lake.

“Our agency doesn’t take a position of the merits of the development of this project,” Severino said.

Instead, the brief is meant to give the court guidance on state environmental law.

APA REVIEW

The town did not order an environmental impact review because the state Adirondack Park Agency’s own review satisfies that requirement, said Tupper Lake Town Attorney David Johnson.

The state’s legal brief is a surprising turn of events, he said.

“I’m surprised that they’d be looking for jurisdiction over a matter that the APA already has jurisdiction over,” Johnson said.

“There’s no question about that. They (APA) make an environmental review of the project.”

Franklin County Judge David Demarest made the same point when he dismissed the case last year.

But state lawyers argue that the lower court’s decision creates a bad precedent, inviting other Adirondack towns and villages to improperly offload legal responsibilities of review onto the APA.

PLAINTIFFS ‘DELIGHTED’

David Gibson of the Association for the Protection of the Adirondacks, a plaintiff in the suit, said his group had asked DEC to weigh in.

“We were simply delighted that the department and the state found our papers, and the merits of our appeal, worthy of their involvement.”

There has been little visible progress on the Adirondack Club and Resort since the APA Board of Commissioners voted last year to send the project to a formal round of adjudication.

Public hearings were put on hold after the developer entered closed-door mediation with neighbors and the project’s opponents.

Both sides have informally reported progress, but a strict confidentiality agreement has bound all parties from discussing the substance of the negotiations.