By Dan Hust
SMALLWOOD — March 13, 2007 — One battle has been decided in the war over public access to the Toronto Reservoir.
On February 26, Sullivan County Supreme Court Justice Robert Sackett ruled that Smallwood resident Mary Ann Burke and Swinging Bridge resident Herman Goldfarb could not add their concerns to those of Bob and June Barrett, who have a pending lawsuit against Woodstone Lakes Development and Mirant NY-Gen. Sackett felt that Burke and Goldfarb did not have a “real and substantial interest” in the proceedings.
Sackett also ruled against an injunction that could have forced Woodstone to open the road leading to one of the reservoir’s access areas.
Considering Burke and Goldfarb were asking to be intervenors not only on their own behalf but on the public’s, Woodstone believes Sackett’s decision definitively answers the contentious question of public access rights through its property.
But it’s not over yet.
The Barretts’ case, which remains to be heard, charges Mirant with negligence for not keeping two accesses open and charges Woodstone with both unlawful imprisonment and an unlawful charge for its involvement in Bob Barrett’s 2005 violation for allegedly trespassing on Woodstone’s property.
The charge of unlawful imprisonment stemmed from a Woodstone worker blocking the Barretts’ exit from the public parking area at the Toronto Dam Recreation Site. The Sullivan County Sheriff’s Department and Bethel Constabulary were called to the location by Woodstone, and officers required the worker to remove the truck blocking the exit.
A trespassing charge against Barrett for a subsequent incident with Woodstone on its Swinging Bridge property was ultimately tossed in court by Bethel Town Justice Kevin Rhyne.
Burke and Goldfarb asked to intervene in the Barretts’ suit insofar as public access to Toronto Reservoir is concerned. The Barretts, Burke and Goldfarb argued that the Federal Energy Regulatory Commission (FERC) requires the energy company which operates the reservoir, Mirant, to provide two access points to the reservoir as part of its hydroelectric license.
That point is not in dispute by any side, but Woodstone maintains that Mirant is the only one subject to the license and must find a way to provide two accesses without using the Toronto Dam Road, which is privately owned by Woodstone and currently is the only roadway to connect to the eastern dam access. Woodstone has blocked that road with logs and a gate to prevent travel across its property, citing liability concerns and an inability to come to a mutually beneficial agreement with Mirant or the Town of Bethel.
In the past, Woodstone has offered several solutions, from creating a larger western access (and closing the eastern one, which would contradict the FERC license) to rerouting the eastern access road (which it did, but then blocked it off over property marketability concerns stemming from the township’s lack of desire to improve the public road – TR 62 – leading to the new access road).
Company officials say they aren’t against public access but simply want to avoid disturbing a private development that has generated a great deal of revenue for Woodstone and the Town of Bethel, both in business and tax income.
The western reservoir access remains open at the end of Moscoe Road, off Route 55 south of White Lake. But for years residents and visitors have traveled to the eastern access and resent Woodstone’s desire to seal it off from its luxury housing development known as Woodstone Properties (Top Ridge).
Armed with a petition containing more than a thousand signatures of support, the Barretts have demanded that the access be reopened according to FERC law – something Mirant recognizes in that it’s taken Woodstone to court itself to resolve the eastern access issue.
Mirant faces fines and other punishment from FERC if it does not comply, but so far the access remains closed.
As for the ruling, Barrett remarked, “I really feel it was a narrow judgment which did not affect us.”
Is he optimistic about his court case?
“I’m never optimistic about these people because their tentacles are very, very deep,” he said, “but I’m hopeful that justice will prevail for public rights.”
While Barrett acknowledged Judge Sackett’s decision included statements that could impact his own case, he said, “I think it’s a continuing saga, and hopefully there will be some justice for the public.”
Stoloff, when contacted last week, thought justice has already been served.
“The public… has no right to enter into our property because it’s a private road,” Woodstone’s attorney related, calling the judge’s decision “a strong affirmance and justification of our position.”
“We’re very satisfied with it,” Stoloff continued. “He says it straight out there: it’s not a public way.”
Sackett did indeed tackle much more than Burke and Goldfarb’s desire to be included, in that he determined that an easement in the 1971 deed of the property applied only to the energy company operating the reservoir. In other words, said Stoloff, Mirant can bring guests to the reservoir through Woodstone’s property, but it has no right to offer a blanket invitation to anyone and everyone.
“The proposed intervenors [Burke and Goldfarb] have proffered no evidence that the private road in question was intended for use by the public,” wrote Sackett, indicating that the easement is only intended to allow Mirant the right to access its facilities.
However, the judge did acknowledge that Mirant has at least two solutions.
“Mirant can either negotiate with defendants Woodstone for the purchase of the subject property or exercise its right of eminent domain over the property in question,” he wrote.
Since Mirant is selling its local holdings (including Toronto) and transferring its FERC license to Alliance Energy Renewables, those options will become Alliance’s, but Barrett plans to continue his suit against Mirant, charging it with negligently allowing the eastern access to be closed. The suit against Woodstone will continue as well.
For her part, Burke said she’d like to appeal – “just to demonstrate we feel this isn’t so acceptable” – but she hadn’t yet talked it over with Goldfarb and their attorney, Howard Block.
“Of course I’m disappointed,” she acknowledged, “but the main case, the Barretts’ case, is what matters.”
Although he hadn’t yet decided on whether or not to appeal, Goldfarb called the access situation “eminently unfair” and hopes to see it resolved.
“We’re disappointed,” attorney Block added, “but the issue of the easement and cross-claim Mirant has against [Woodstone] is still open.”