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The Nature Conservancy tries to get judgment thrown out

January 21, 2011
By JESSICA COLLIER, Enterprise Staff Writer

MALONE - Lawyers for the Adirondack Chapter of The Nature Conservancy argued Thursday that a judgment rendered by 12 Tupper Lakers in September should be thrown out.

Edward Fitzgerald, one of the Conservancy's attorneys, argued in Franklin County Court that Preserve Associates, the group that is developing the Adirondack Club and Resort, didn't present proof that it had the necessity to take a right of way over a road the Conservancy owns on its Follensby tract southeast of Tupper Lake.

The resort developers, who want to overhaul the Big Tupper Ski Area and develop the land around it with 651 housing units, won the right to take the right of way in a rare proceeding set forth by a state Highway Law statute. The road crossing would give Preserve Associates access to a 1,200-acre lot, referred to as the Moody Pond lot, it plans to sell as a luxury "great camp."

The three-day hearing, held in Tupper Lake with only Tupper Lake residents as jurors, awarded the Conservancy $10,000 in damages for giving up the right of way.

The statute calls for the town highway superintendent to oversee the proceeding, rather than a judge. Fitzgerald argued that led to several irregularities, including two different verdict sheets being presented to jurors, a last-minute amendment to the original petition that got the proceeding started, and Preserve Associates' lawyers shifting the burden of proof in their summation.

Fitzgerald also said making a decision in the case required the jury to pass judgment on several deeds, which he said was outside of their grasp and is something normally decided by state Supreme Court judges.

If any of those arguments wasn't enough to prove that the judgment should be overturned, Fitzgerald argued that the court should at least throw out one part of it that gave Preserve Associates the right to put an electric line across the right of way in addition to a 12-foot-wide gravel road.

"You don't read additional rights into a statute for a road," Fitzgerald said. "Preserve Associates is getting too much here, especially when they didn't even prove the need for the road in the first place."

Franklin County Court Judge Robert Main Jr. seemed to lean at least toward awarding the Conservancy that, telling Preserve Associates attorney Bob Sweeney that he will need to convince him on that point and saying that the statute makes it clear that it involves nothing but the taking of a road.

"I think it's an enormous leap," Main told him. "Boy, that's a hard sell."

"Your honor, that's what you get when you put down a road," Sweeney said. "I don't think this is a leap of any sort."

Sweeney argued that when a municipality takes a right of way in an eminent domain proceeding, it is allowed to install utilities, drainage and any other thing that would normally go along with a roadway.

Preserve Associates is only asking for one buried electric cable, not electric poles or anything above ground, in an attempt to minimize their impact, Sweeney said.

Sweeney argued that he changed his original petition during the proceeding out of necessity, because he was given information in the hearing that he hadn't been able to get before, since the Conservancy didn't let him on the land. He also said he didn't shift the burden of proof, saying that he started out his arguments by telling the jury what he would have to prove in the case.

He said his side did present proof that there are no other practical means to reach the Moody Pond lot.

And as far as deeds go, he argued that he didn't have an expert witness to offer proof about the deeds because his side believed there was no question over it. When the Conservancy tried to end or stall the proceeding in June 2010, a district court judge told Preserve Associates they couldn't have temporary access to the land because the Conservancy argued that there was not an existing right of way from old deeds.

He said Preserve Associates was surprised when the Conservancy changed its tune in September, arguing that there is no necessity for the new right of way, since old deeds show there was an existing one there already.

He also said his cross-examination of the Conservancy's title expert proved that there was no existing right of way.

"Preserve Associates more than met their burden of necessity," Sweeney said.

Sweeney said the Tupper Lake jury had all the information it needed and made a rational judgment in the case and that Main should confirm the judgment rather than overturn it.

Attorney James Cullum argued the case for the Conservancy in Tupper Lake, but he was hospitalized when the appeal was originally scheduled for arguments in December and was busy with another case since then, he told the judge before Fitzgerald started his arguments.

"This is an usual proceeding brought about by a unique provision of the statue," Main said as he introduced the case Thursday.

But Main said he does have experience deciding on a similar case a number of years ago.

He gave each side a half-hour to argue their case, then thanked and dismissed them.

Sweeney said he expects Main to make a decision sometime in the next few months.


Contact Jessica Collier at 891-2600 ext. 25 or



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