Reporter Jessica Collier reports that the developers who are building the Adirondack Club and Resort are planning to build a right of way on a Nature Conservancy road on the Follensby tract.

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Tupper resort looking to take right of way

Adirondack Daily Enterprise (Saranac Lake, NY)

4/28/10, Web site

http://www.adirondackdailyenterprise.com/page/content.detail/id/512697.html?nav=5008

By JESSICA COLLIER, Enterprise Staff Writer

TUPPER LAKE - The developers who hope to build a resort around the Big Tupper Ski Area plan to take a right of way on a Nature Conservancy road on the Follensby tract.

An easement currently exists on the strip of land that allows only logging vehicles to travel through - Oval Wood Dish Inc. has logged the land on either side - but the Adirondack Club and Resort would turn that OWD land into residences, which would require a separate right of way.

Resort developers do not currently own the property, part of which would be landlocked, but lead developer Michael Foxman has an option to buy the tract from OWD if the resort gets approval from the state Adirondack Park Agency.

Town Attorney Dave Johnson said state law allows for a private taking of the right of way if an area will be landlocked.

"There's a state law very, very, very rarely used that allows a landowner to go to court to obtain a right to cross," Johnson said. "It's a very unusual concept."

The law requires resort developers to file an application with the town highway superintendent, who then must judge a juried hearing that will decide the value of the right of way.

"It's not a matter of whether they have the right to take it," Johnson said. "State law allows (a landowner) to have access to his or her own property."

Johnson said developers are in the process of filing the application, but pulled back when town Highway Superintendent Mark Lavigne announced his retirement last month, effective Thursday. Lavigne said last week he considered revoking his resignation but decided against it.

The town board appointed Tupper Lake Supply owner Ricky Dattola as interim highway superintendent at a special meeting Friday. Dattola does not currently work for the highway department. He has been a vocal supporter of the ACR and an opponent of Adirondack environmental groups. In November 2009, he and other local business owners considered suing environmental groups for hindering their ability to make a living.

He said in a Tuesday phone interview he will be busy between running the store he co-owns and working with the highway department, but he does not plan to run for the highway position when it goes up for election in November. Town board members wanted to make sure they would get a fair election with no one having an edge, so they chose someone from outside the possible candidate pool, Dattola said.

Dattola said he would not speak about the right-of-way proceedings at this time because he did not know the details of it yet, but would be pleased to discuss it once he is more familiar with it.

"When (town Supervisor) Roger (Amell) had asked me to do it and I told him that I would do it ... he told me a little bit about it and said that there's some stuff coming up with the ACR," Dattola said. "But until I get sworn in, I won't know what's going on with it."

Once Dattola takes his position and developers file notice, it will be up to Dattola to set a hearing date and call a jury, Johnson said.

Lawyers for both the resort and the Adirondack Chapter of The Nature Conservancy would be present to argue their case at the hearing, which would take place in the town hall. Johnson said he would also stand by in case he was needed because of the highway superintendent's involvement.

Johnson said there is still time for developers to negotiate with The Nature Conservancy.

"They may be able to resolve this before the hearing," Johnson said.

Nature Conservancy spokeswoman Connie Pricket said that while some people at the Conservancy have heard rumors about the plan, they have not received any formal notification from the developer, nor have there been any formal negotiations to purchase the right of way without the hearing process.

When asked what the Conservancy would do if or when it was presented with such notification, Pricket said, "I think we'll make the decision when we understand what the facts are. There's not much we can do now."

Bob Sweeney, a lawyer from the Albany-based Whiteman, Osterman and Hanna LLP who has been retained by the resort developers, declined to comment on the proceedings "until there's something formal going on."

The Adirondack Club and Resort project would raze and rebuild the Big Tupper Ski Area and develop the land around it with 600 luxury housing units, a marina and a restaurant.

The APA, which must give the resort a permit, directed the project into an adjudicatory hearing on 10 issues in February 2007, but before a pre-hearing conference was completed or the formal hearing began, Foxman backed out and instead began a confidential mediation process with the about 40 parties. Foxman called off the mediation last summer and has been working on submitting revised plans to the agency since then.

Details on the Adirondack Club and Resort project are scheduled to be presented at the Tupper Lake Planning Board meeting tonight at 7 p.m. at the town hall. Sweeney said he did not expect the right-of-way proceedings to be discussed in that presentation.

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Contact Jessica Collier at 891-2600 ext. 25 or jcollier@adirondackdailyenterprise.com.