Appellate court on Toronto Reservoir; Ruling against Chapin Estate developer
May 22, 2013 —
Another court has weighed in on the matter of the Toronto Reservoir, and said that residents have the right to use a road in Chapin Estate to reach the recreational access area at the reservoir.
On May 9, the appellate court handed down a ruling essentially saying the lower court was correct when it ruled that the public is entitled to have access to the reservoir, a matter that was brought to a head when the company that owned the reservoir and related electricity generating plants moved to sell the system to another owner in 2009.
When Alliance Energy Renewables (AER) moved to sell the system to Eagle Creek Companies, the transfer of one of the licenses was blocked by the Federal Energy Regulatory Commission (FERC) because AER was not providing public access to the site, which was a requirement of the licensee. Developer Steven Dubrovsky and his company Woodstone Lake Development had blocked the road that leads to the access.
In January 2012, a lower court judge sided with AER and ruled that it could acquire an easement through Woodstone’s land via eminent domain to fulfill the requirements of the license.
Woodstone appealed, saying among other things that the lower court erred because the roads in question were private. The appellate court agreed that they were private, but the deed to the land came with a provision allowing any company that owned the power generating system to use the roads for “any purpose, including without limitation the right to unrestricted travel along said roads with any vehicle, equipment or machinery.”
Woodstone also charged that the lower court made a procedural mistake regarding a public hearing, and the appellate court again sided with the lower court, AER and FERC. The court also ruled against Woodstone in several other procedural matters.
There was a wide disparity between the two sides on the financial impact of the easement to the properties owned by Woodstone. A footnote in the decision read, “AER’s expert ultimately determined the value of the impact of the public access easement to be $402,000, while respondents’ expert opined that the diminution in the value of the affected property would be at least $30 million.”