Press-Republican

September 27, 2012

Big Tupper skiing shelved; lawsuit blamed

By KIM SMITH DEDAM
Press-Republican

---- — TUPPER LAKE — Big Tupper Ski Area will not open this winter. 

The grassroots group Adirondack Residents Intent on Saving our Economy (ARISE) said they lost investment resources to reopen the ski center this season because of a lawsuit filed against developers who own the mountain property. 

“The Article 78 created a pause in everything,” Adirondack Residents Chairman Jim LaValley said in an interview Wednesday.

“They basically have cut the legs out from our being able to get funding for this season.”

This winter would have been Big Tupper’s fourth year of volunteer-based operation.  

'SHOULD BE ASHAMED'

ARISE had obtained an Adirondack Park Agency permit to run the ski center for the past three seasons while permitting and adjudication proceedings for the Adirondack Club and Resort development continued.

Big Tupper is owned by partners of the resort project, whose lead developers are Michael Foxman and Tom Lawson.

But Protect the Adirondacks, the Sierra Club and several Tupper Lake neighbors filed an Article 78 lawsuit charging, among some 30 counts, that APA did not complete wildlife studies before granting resort permits and that APA staff violated hearing rules in communicating with the resort developers after formal hearing testimony closed.

The tersely worded statement from ARISE says the legal action dissuaded outside investors. It accuses Protect the Adirondacks and its attorneys of using law as a weapon against the project.

“The board and membership of Protect and the Sierra Club should be ashamed at the way they have chosen to attack a community by using Article 78 lawsuits in a frivolous manner and as a weapon against a project that was approved by the (APA) commissioners with a (10-to-1) vote after eight years of review,” the ARISE statement said.

OFFERS DISCUSSION

Peter Bauer is now executive director of Protect the Adirondacks, having regained the reins of what is partially a realigned environmental group that he left in 2007.

He countered LaValley’s charge, seeking facts and offering to discuss the issue.

“This is a serious allegation, and they need to substantiate that. Jim LaValley and ARISE have been showing a pattern of making very serious, but unsubstantiated, allegations. And this is yet another,” Bauer told the Press-Republican.

“Who are these donors that have supposedly withdrawn their funding for the Ski Area?” he asked.

The Press-Republican also asked LaValley that question.

“As with most private investment, sometimes people don’t want their names disclosed,” he said.

He said the investors do not wish to put money into any project tangled in litigation.

FRAGILE ECONOMY

“After the APA permits were issued, we were having discussions about if and how Adirondack Club and Resort may be able to invest (in Big Tupper),” LaValley said. “We also had another party looking to invest, but we will not name that person.”

The investor was looking to put upward of $200,000 toward getting Big Tupper running this year, he said.

And the ARISE volunteer base was willing to continue to staff the ski center.

“Then the Article 78 was filed. Some businesses planning to locate in Tupper Lake are also on the fringe now. It goes to show how fragile the economy of this community is," the ARISE chairman said.

LOST MONEY

Despite the monumental amount of volunteer support, LaValley said, Big Tupper lost about $32,000 over the past two seasons.

Without snowmaking, the mountain relies on weather conditions, and last winter was nearly snowless.

Financial investment was critical to this year’s operation.

“Even if ARISE were financially able to continue the operation this season, given the ongoing threat of lawsuits and the time frames of the legal process, it is my opinion that the volunteers would have to continue operating for another three to six years. We cannot expect the volunteers to continue for that long, nor can we afford to,” LaValley said in the press release.

Bauer said they would speak with disenfranchised investors, if necessary.

“He’s making public accusations, therefore, he has to be able to substantiate them. And we want to talk to them. We want to clear up any misperceptions that they may have about the role of this lawsuit,” he said.

In March, Protect attorney John Caffry, who wrote the 29-item challenge, told the Press-Republican that they were trying to kill the project.

"We're challenging the approval of the project as it stands," he said then. ... "This project does not comply with the APA Act. ... We've never hid that we were opposed to this project as it is currently proposed."

The Press-Republican asked Bauer if he could estimate how long the legal process would continue.

“We imagine this lawsuit will be settled at some point in 2013,” he said.

DOCUMENTS SOUGHT

Protect filed motions last week seeking copies of email, telephone and personal discussions held between APA, state officials, Gov. Andrew Cuomo's office and the applicant’s lawyer.

The lawsuit challenges “ex parte” communications after the formal hearing closed, claiming that any communication from APA and or state officials should have been shared with all parties to adjudication.

“We are looking for any communication — via email, via phone, via personal visits to senior staff or commissioners at APA that took place concerning the ACR project with elected officials, including the governor and his staff, and at the local level,” Bauer said.

They maintain that law bars anybody from having these types of conversations during APA-ordered adjudicatory proceedings.

The litigation, Bauer said, is largely based on procedural matters.

Resort owners successfully obtained 14 permits from APA commissioners in January, allowing them to proceed, with conditions, in constructing the first phase of Adirondack Club and Resort luxury homes.

Part of Phase 1 would rebuild Big Tupper ski lodge.

The developers have not been able to proceed due to the ongoing lawsuit.

Email Kim Smith Dedam: kdedam@pressrepublican.com