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A mid-level state
appeals court has upheld the Town of Tupper Lake’s decision not to
conduct an environmental review when it rezoned 6200 acres of land
around the former Big Tupper Ski Area for the Adirondack Club and
Resort project.
The ruling, barring
another appeal, removes what would have been a time-consuming and
costly hurdle for developers of the massive resort project, which
has been in the works for more than five years.
The case dates to
2006, when the town of Tupper Lake voted to rezone the acreage
around Big Tupper as a planned development district without a full
environmental review. At the time, town officials said that since
the Adirondack Park Agency was involved, the resort project would be
subject to a stringent review process and that a secondary town
review would be redundant.
That led to a lawsuit
by environmentalists and neighbors who oppose the resort. They
claimed that the town was required, under the state Environmental
Quality Review Act or SEQR, to undertake an environmental review.
But, in 2007, State
Supreme Court Judge David Demarest rejected the suit, filed by the
Association for the Protection of the Adirondacks and others. The
association then filed an appeal.
But the Appellate
Division of State Supreme Court, in a ruling issued Thursday,
rejected the appeal and upheld the town’s decision not to conduct a
full SEQR review.
The ruling notes that
the APA has “comprehensive jurisdiction” of the project and that its
environmental regulations pre-date SEQR and are much more
stringent. Mandating a full SEQR review “would be burdensome and
duplicative with no foreseeable benefit,” the judges found.
David Johnson is the
Town of Tupper Lake’s attorney. He says the decision to dismiss the
appeal was the correct one.
“The Adirondack Park
Agency does a thorough environmental review of a project of this
type,” Johnson said. “And it was very clear in the law that there
was no need to go duplicate that proceeding by going through the DEC
for the same review.”
David Gibson,
executive director of the Association for the Protection of the
Adirondacks, says his group is disappointed with the decision. “We
accept the decision. They took a long time to make the decision, so
they clearly considered this carefully,” he said. “But we are
disappointed with the decision. We haven’t had a chance to
thoroughly go over the decision, so we’ll have more to say about it
later in the summer.”
Thursday’s ruling was also a loss
for the state Department of Environmental Conservation, which had
issued a court brief last year in support of the environmental
group’s appeal. While the agency didn’t take sides on the project,
DEC officials had argued that the town board failed to “take a hard
look” at potential environmental impacts when it approved the
rezoning.
There was no
immediate comment Thursday from DEC or the Attorney General’s
Office, which represented the state in the case.
Tupper Lake Supervisor Roger Amell
told WNBZ he was pleased with decision and hopes the project can
continue to move ahead. “Of course I’m happy to see the results,” he
said. “It just goes to show the justice system works. Hopefully now
we can keep moving forward and get this project rolling.”
A lengthy attempt at
mediation between Adirondack Club and Resort developer Michael
Foxman and the project’s opponents came to an end last week. An
adjudicatory hearing with the Adirondack Park Agency is the next
step, but it could be six to eight months before that begins.
Foxman praised
Thursday’s appellate court ruling. If a local environmental review
was required, it would have been – quote – “an absurd duplication of
expense and effort,” he said. “I think the decision is very
significant because it continues our momentum,” he said. “There was
never a question in my mind or the attorney’s minds about our
ability to win, we felt confident that the town was right. I think
that it was simply another matter of the opponents attempting to
prolong and waste money – ours and I guess their contributors – in
an effort to stop the project.”
Yesterday’s ruling came amid news
that a local group in Tupper Lake is working to try and get part of
the former Big Tupper Ski Area open this winter.
Representatives of
ARISE – Adirondack Residents Intent on Saving their Economy – are
hoping to get the T-bar up and running. A ski lift company was in
Tupper Lake this week to conduct an inspection.
“We have every reason to believe
that with the community support that we have, we're going to get it
open this year,” Adirondack Club and Resort development partner Tom
Lawson told the Adirondack Daily Enterprise.
Michael Foxman says opening Mt.
Morris for skiing is the right thing to do. “I think it’s a
wonderful idea and I hope we can make this happen for the
community,” he said.
-Chris Morris & Chris Knight,
7-3-09
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