By Dan Hust
SMALLWOOD — A Supreme Court judge has ruled that the disputed path to the second public access on Toronto Reservoir must be reopened through condemnation proceedings.
Judge Michael Melkonian’s January decision permits the reservoir’s owner, AER NY-Gen, to condemn about 1.8 miles of road leading from Smallwood to the reservoir’s dam on its eastern end, where there’s space for 15 cars and a boat launch.
Most of the involved property is owned by Woodstone Lakes Development, which created the adjacent upscale Chapin Estate.
Woodstone is appealing, the decision, so it’s not clear when – or even if – the access road will reopen.
AER, in a mid-February filing with the Federal Energy Regulatory Commission (FERC), stated that, “as of February 24, 2012, the public has the right to travel along this pathway to the recreation area.”
But a visit yesterday to the end of Pine Grove Road, where the access road historically started (and is proposed to be restored), showed that a stone wall across the former accessway remains, leaving it available only to those on foot.
AER’s attorney, John Hood, told the Democrat yesterday that Woodstone’s appeal should not affect the public’s ability to use the access, which he said should be open now.
However, it’s apparently AER’s responsibility to make the access road passable for both pedestrians and motor vehicle traffic, which has not yet been accomplished.
The matter has taken the better part of a decade to decide. Arguing in part that such a public access devalues and imperils its development and future plans, Woodstone has been unable to come to mutually agreeable terms with AER, despite a new road (Toronto Dam Road) being constructed by Woodstone partway to the access.
In reaching his decision, however, Judge Melkonian characterized Woodstone’s behavior toward AER as “interference” designed “as a bargaining chip to force [AER] to stop using Toronto Reservoir for its intended function of supplying water when and as needed by the rest of the [hydroelectric] project and to force [AER] to start maintaining the water level in Toronto Reservoir at a stable level.”
Melkonian rejected Woodstone’s assertions that the access will “largely destroy the serenity and security of the Chapin Estate.”
Woodstone’s attorney, Jon Houghton, confirmed his client will appeal.
“It was always obvious to Woodstone and to Alliance Energy Renewables [AER] that public access never existed throughout the entire taking route or there would simply be no need for the condemnation,” he told the Democrat yesterday.
“Woodstone disagrees with the court decision that allowed AER to condemn this property and has filed an appeal. Accordingly, whether or not the power company will ultimately be allowed to maintain a permanent easement along this private road will decided by the Appellate Division, Third Department.
“If the power company ultimately succeeds in taking title to this property within the Chapin Estate, AER must pay just compensation to Woodstone and all affected parties within the gates of the Chapin Estate that will be damaged.
“In our opinion, the effect of this taking may have a negative effect on the tax base provided by the Chapin Estate and therefore could also have a negative effect on the taxpayers within the Town of Bethel,” Houghton concluded.
AER, in the meantime, has been trying to sell its local holdings to the New Jersey-based Eagle Creek Hydro Power. FERC, however, has predicated part of that transfer of assets on the restoration of this access.
Toronto also has another public access site on Moscoe Road, off Route 55 south of White Lake. But FERC’s hydroelectric license agreement with the current and prior owners of Toronto requires a second access near the dam, and FERC won’t allow AER to sell the reservoir and its hydroelectric operations until that is restored.
Thus AER embarked on the condemnation process about two years ago, triggering another round of litigation.
Melkonian has required AER to establish a $402,000 bond to compensate Woodstone and others whose property will be condemned, though such owners have six months to make their own claims – and AER itself, in the FERC filing, acknowledged that the valuation and compensation process could take years.
AER meanwhile has asked FERC to allow the sale of its assets to Eagle Creek by March 23. FERC spokesman Craig Cano said yesterday that FERC is seeking comments on the matter first, due within the next 15 days.
The full text of the judge’s decision and related documents submitted to FERC can be found at www.ferc.gov.