Judge rules in favor of Catamount expansion

Decisions may clear the way for new spa and hotel resort in Copake

COPAKE—Two lawsuits seeking to overturn Berkshire Mountain Club approvals granted by the Town’s Planning Board and Zoning Board of Appeals have been thrown out by an Albany County State Supreme Court judge.

The court’s decisions, unless they are appealed, mean that the $80-million, four-season resort project can be built at the base of the Catamount Ski Area off Route 23 near the Massachusetts border.

The project consists of three buildings with 153 hotel and time-share residential units, a spa, swimming pool, restaurant and retail space to be completed in three phases over 10 years.

Judge Richard M. Platkin’s October 14 and 15 decisions to dismiss the lawsuits mean that legal impediments to the project moving forward have been wiped out. But the delays the suits have caused since approvals were granted a year ago have had “created a number of challenges” and when ground might be broken is still up in the air, Project Developer Harry Freeman, with Rock Solid Development, LLC, told The Columbia Paper this week.

The Catamount Development Corporation operates the Catamount Ski Area and owns the real property where the project will be sited.

The lawsuits were brought by Gert and Cynthia Alper, owners of the Swiss Hutte Inn and Restaurant adjacent to the Catamount Ski Area, where the resort will be located.

In the suit against the Copake Zoning Board of Appeals, in which Rock Solid Development and the Catamount Development Corporation were also named as respondents, attorneys for the Alpers cited multiple causes of action, including:

*The vote that followed the 2-to-2 tie vote on September 2014 should not have happened because the tie vote amounted to a denial

*Jeffrey Judd, who was appointed to fill the vacancy on the ZBA created by the death of a member, was unqualified to serve because he was unfamiliar with the application

*ZBA attorney Ken Dow had a conflict of interest

*The ZBA was bound by its 2005 decision that an emergency/delivery access road be constructed

*The special use permit was issued in violation of Copake Zoning Code

*The project is not a resort hotel.

The judge flatly rejected or dismissed all arguments, noting with regard to the definition of resort hotel, “petitioners have failed to offer any persuasive basis for deeming the project to be anything other than a resort hotel.”

With regard to the tie vote, the judge wrote, “petitioners misinterpret the ramifications of the ZBA’s tie vote.” His ruling said that “the ZBA and its counsel correctly determined that the 2 to 2 tie vote… amounted to a non-action and that Rock Solid’s application for a special use permit remained pending until the majority vote of November 20, 2014.”

In connection with the allegations about Mr. Judd, Judge Platkin wrote that “in order to meet their evidentiary burden, petitioners must establish that Judd made no independent appraisal and reached no independent conclusion in casting his vote.”

Mr. Judd asserted that he had devoted substantial time to familiarizing himself with the application, reviewed board minutes dating back to December 2013, project plans, submissions, the determination of no negative environmental impact, had conversations with other ZBA members and visited the project site, the judge wrote.

He called the petitioner’s claim that Attorney Dow operated under a conflict of interest “baseless.”

In the suit against the Planning Board, the judge said the statute of limitations had taken effect by the time petitioners commenced their proceeding “more than 30 days” after “draft minutes memorializing the Planning Board’s site plan approval were filed with the town clerk.” “The petition must be dismissed as “untimely,” said the judge.

Further Judge Platkin found that the Planning Board addressed the issue of construction impacts because the project would be developed over 10 years in three phases of not more than one year each and construction would be limited to weekdays between 7 a.m. and 4 p.m. and tractor trailer deliveries limited to weekdays from 9 a.m. to 4 p.m.

Reached for comment on the decisions this week, Attorney Dow said he thought that the Copake boards’ decisions were “spot on and correct. I’m happy our positions were validated.”

Project Developer Mr. Freeman said the neighbors’ lawsuits were “unfortunate” and “baseless” and delayed the start of the project.

“We’re still evaluating the process going forward and trying to come up with a definitive timeline,” he said, adding that delays caused by the lawsuits and the Alpers’ opposition to the project while the application was being considered have disrupted marketing efforts, added costs and caused contractors who might have been interested to move on to other work.

“We’ve missed a couple of construction seasons,” Mr. Freeman said.

While the original timeline had construction starting in spring 2014, Mr. Freeman said the earliest the project might be able to start is now 2017. He also noted that “for every year the project has not been built local taxpayers have lost over a half million dollars in tax revenue” the project would have generated.

The Columbia Paper received no response by press deadline to an email request for comment on the judge’s decisions sent to Alper attorneys Daniel Tuczinski and Andrew Gilchrist.

To contact Diane Valden email

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