Toronto access case wends slowly through the courts

Alliance Energy lawyer takes over

By FRITZ MAYER

BETHEL, NY — The back road leading to the Toronto Reservoir is closed by a locked gate as the case that could force it to open moves slowly through the legal system.

On February 13, lawyers and interested parties on all sides met in a courtroom in Kingston to see if the case could be resolved without going to a full appeal. But there were too many issues to be settled; therefore, the litigation will go forward. The next move in the long and tangled process is an appeal of a ruling by Judge Robert Sackett issued in February 2007, which essentially said members of the public have no right to use the road to cross private property to reach the reservoir.

A brief filed with the court recently by Kim Williams, a lawyer for Alliance Energy Renewables, which now owns the reservoir, argues that the judge erred when he addressed the issue of public access and other important factors because the issue in front of the judge at the time was limited to whether to allow two residents of the county to join Robert and June Barrett’s lawsuit against the Woodstone Companies and the developers who own them.

Sackett did address that issue-he ruled that the two residents could not join the suit-but he went much further than that and essentially ruled in favor of the Woodstone Companies on various questions, even though no party had asked him to do so. Part of the argument of the brief says that Sackett “…erred by summarily determining the merits when the proof before [the court] presented numerous questions of fact as to the extent and the nature of the easement.”

Other observers familiar with the case said at the time that the judge’s ruling was unusual. In fact, shortly after the judge issued his ruling a year ago, the lawyer working for Mirant, which owned the reservoir at the time, took the unusual step of writing the judge to ask for clarification on whether he had in fact granted a summary judgment without being asked to do so by any party. The judge answered back in the affirmative.

To maintain its license to generate electricity at the dams in the reservoirs south of the Toronto Reservoir, Alliance Energy must maintain public access to the reservoir along the disputed path, based on a decision by the Federal Energy Regulatory Commission (FERC). And, Alliance has said in the past that it intends to stay in compliance with the demands of its license agreement. At the time of the ruling, Sackett said the options left to Mirant then, and now Alliance, are to negotiate some agreement with the Woodstone Companies or take the road by eminent domain.

The brief asks the appeals court to reverse the decision. If the appeals court lets the ruling stand, it would seem to limit the options left to Alliance to the eminent domain option because the Woodstone Companies have consistently balked at opening the road to the public.

When asked about this, Williams said, “There may be other ways to settle it, but we don’t think the judge should have addressed it at all. At least, the matter of eminent domain should not have been addressed at that time and under those circumstances.”

Also in the brief, Williams points to a couple of inconsistencies that cropped up during the hearing in February 2007. For instance, Richard Stoloff, the attorney for Woodstone and developer Steve Dubrovsky, suggested that his client did not know about the FERC license at the time he purchased the land. However, an affidavit on file with FERC, which is quoted in the brief, suggested that Dubrovsky did know about the license.

Oral arguments on the appeal are likely to be presented in May or June, and a ruling from the court will come sometime thereafter. Regardless of how the court rules, it’s not likely to put an early end to the court skirmishes that could go on for years.