Democrat Photo by Dan Hust
LOGS BLOCK THE Toronto Dam Road near Smallwood a road Woodstone Development built to replace the original road leading to the Toronto Reservoirs eastern edge. But instead of being deeded over to the Town of Bethel as was the announced desire by both Woodstone and Bethel last year it remains a private road. Meanwhile, energy company Mirant must find a way to guarantee availability of that access, lest the federal government sanction it for not complying with its operating license.
By Dan Hust
SMALLWOOD April 18, 2006 Talk about the perfect catch-22.
According to a recreation plan required by the Federal Energy Regulatory Commission (FERC), the Toronto Reservoir must have two accesses open to the public.
That agreement has been passed down through several owners of the reservoir, located south of White Lake and Smallwood, and now applies to current owner Mirant, a hydroelectric energy company that also owns and operates the Swinging Bridge, Mongaup Falls and Rio reservoirs in Sullivan County.
But heres the first catch: that agreement is not reflected in Woodstone Developments deeds to the properties it owns surrounding the reservoir. The deeds, which date back to the early part of the 20th century, only mention a 1971 easement in order for the current operator of the reservoir to access the dam, as the road leading to the dam runs through Woodstones acreage.
Title companies working on behalf of Woodstone and individual homeowners have confirmed this time and again.
The second catch comes hot on the heels of the first: only Mirant, not Woodstone, is beholden to FERC, since Mirant possesses the federal license giving it authority to operate the reservoir.
The license granted by FERC including an approximately 18-year-old memorandum of understanding requires the two accesses, but it also stipulates that easement conflicts are to be resolved in state court, not by FERC.
So with the fall closing of Woodstones brand new road leading to the eastern dam access, Mirant has found itself at the very heart of this seemingly unresolvable catch-22.
The Toronto Reservoirs western, more accessible access off Moscoe Road remains open.
But FERC, in a letter dated March 1, demanded Mirant get the eastern dam access reopened immediately or suffer the consequences which, according to FERC spokesperson Celeste Miller, could be fines of up to $11,000 a day.
Woodstone, which just built the aptly named Toronto Dam Road and opened it last summer, closed the road in the fall and so far has not removed the logs blocking vehicular access down it.
Woodstone developer Steve Dubrovsky no longer owns the original access road. The dozen or so property owners inside that portion of Woodstones Chapin Estate development each bought part of the road when they purchased their home sites, he explained. (For obvious reasons, properties located on private roads are generally considered more valuable than those on public roads.)
Following state law, those purchasers formed a homeowners association and now own the entire road.
The law prohibits ownership or operation of a public road by a homeowners association.
Thus, Woodstone gated the old, now-private road and built a new road at its own expense that parallels the original so as to afford the public a means to get to the dam access.
But the company has not deeded the Toronto Dam Road over to the Town of Bethel, despite an announced intention by both parties to do so last year.
The reason is twofold, said Dubrovsky: (1) Mirant has refused to indemnify Woodstone for any liabilities on that road (two accidents happened there just this past summer), and (2) the Town of Bethel has not upgraded Town Road 62 which leads from Smallwoods Pine Grove Road to the new access road to town specifications.
The latter situation means that if Dubrovsky allowed Toronto Dam Road to be made public, he could not sell any pieces of land he owns around the road the very reason he purchased the acreage in the first place.
State law would stop him.
You see, the Toronto Dam Road is up to town specs, per an agreement Woodstone had with Bethel: 20 feet wide with a gravel top on a shale base.
Town Road 62 around 10 feet wide is not. Fire trucks, ambulances and utility crews not to mention residents and visitors would have a hard time making it down the narrow, muddy, potholed road.
Bethels own building code wont allow Woodstone to construct homes for the general public in an inaccessible spot. Since Town Road 62 is the only public road leading to the Toronto Dam Road (all others are private roads within the Chapin Estate), the third catch is created.
The only way [the Toronto Dam Road] could be turned over [to the town] is if the town improves Town Road 62, Dubrovsky explained last week.
Upon talking to new Bethel Supervisor Harold Russell earlier this year, Dubrovsky said, It became clear they [the town] had neither the money nor the inclination to do this. . . . I can understand its tough times.
Woodstone could open the road to the public as long as it doesnt sell homes around it. That, of course, would mean Woodstone loses millions of dollars in potential real estate sales and a double-whammy when Bethel loses millions in increased assessments.
Dubrovsky said he is all for people enjoying the Toronto Reservoir residents and non-residents alike but he also has a business to oversee.
And, he added, most people use the Moscoe Road access, not the dam one.
We are not going to give our land away and take away the towns dollars for the sake of four or five people using that lake [access], he said.
Russell agreed, saying he understands Dubrovskys concerns.
It seemed quite obvious to me that the road wasnt going to be deeded over to the town at that time, Russell recalled of his meeting with the developer. Its private property. . . . You cant make someone give you something you dont own.
Besides, said Russell, theres no funding available to upgrade TR 62. With roads in bad shape in inhabited parts of Bethel, the remote and uninhabited Town Road 62 isnt real high on the priority list, he explained.
So where does everyone go from here?
The Town of Bethels role is complete, explained its supervisor.
We have no further recourse or influence other than maybe FERC should honor their license, said Russell. It was a license and contract entered into by FERC and Mirant, and it is up to those two organizations to honor that agreement. . . . How many tax dollars do we spend on an issue thats more a civil matter than a town matter?
FERC, earlier this month, said Mirant has responded to its March 1 letter and is pursuing the necessary remedy.
Mirant filed a letter on March 20, 2006, stating that it is taking the appropriate steps to secure its rights over the road leading to the public access point, Celeste Miller said.
For Smallwood Civic Association President Bob Barrett a longtime advocate of keeping that access open the choice is clear:
Mirant cannot just walk away from its license. FERC has indicated clearly that they will be held responsible for all aspects of the license that is now in place, he remarked. My feelings are that this is a blatant action by Woodstone to block the public's legal entry to the recreation launch area which is provided by the FERC License 10482. Woodstone seems to not care about the federal license, and Mirant seems incapable of doing what is required by the license.
Mr. Barretts actions have created the condition that exists today, responded Dubrovsky. The Smallwood community is made up of many considerate and respectful sportsmen and other people who would like to enjoy a park-like setting on Toronto Reservoir and without his questionable leadership, probably could.
Dubrovsky said he might reconsider reviving his offer of creating an expanded boat launch and park at the Moscoe Road access if Bethels leaders, Mirant and the public were receptive.
We would consider still making that investment, he explained.
For its part, Mirant has the option of suing Woodstone or taking the Toronto Dam Road by eminent domain both of which would be vigorously fought by Woodstone in court.
But Mirants external affairs director, Louis Friscoe, didnt indicate either were options his company would exercise.
Weve been in discussions with Woodstone Development, said Friscoe, explaining that Mirants desire is to open the dam access daily from 7 a.m.-7 p.m. from March to October mostly due to safety and security concerns.
FERC, however, wants it open 24 hours a day, seven days a week, 365 days a year.
Friscoes response was heavy with weariness:
Were trying to run a generating station, not a public beach.
You Can't Get
There From Here
By Dan Hust
SMALLWOOD April 18, 2006 According to federal regulations, anyone can access the boat launch/recreational area on the eastern edge of the Toronto Reservoir in Smallwood.
Dont try it.
These days, you need a boat one that youve put in the water at the reservoirs other access off Moscoe Road on its western edge.
About a mile off Route 55 south of White Lake, that launch is quickly accessible via a paved road.
Its by far the more popular one, too, offering parking for vehicles and trailers and an easily-reached boat ramp.
But if you insist on trekking over land to the dam-side access, be prepared for a 5-mile journey from Route 17Bs intersection with Pine Grove Road.
Better bring a 4-wheel-drive vehicle, too its very easy to get stuck in this remote neck of the woods . . . without cell phone service, to boot.
And you wont be able to finish, as logs cover the final stretch of private road leading to the access.
But back to the beginning: about two miles off Route 17B, Pine Grove Road turns into a dirt road flanked by ominous handmade signs warning, Keep Out and Private Property.
Keep going (it is a publicly open Town of Bethel road), and youll slog through ever-deepening mud to Pine Grove Roads end.
Continuing straight ahead would put you on private property, the upscale Chapin Estate at Swinging Bridge and youd be trespassing.
So from where Pine Grove Road ends, you must turn around or turn right onto a road so remote and uninhabited that Bethel has never officially called it anything other than Town Road 62.
Here, too, youll find red warning signs telling you that trespassers will be prosecuted for traversing this area signs put there by Woodstone Development to keep people off its property, which flanks both sides of the road.
Theres not even a street sign here. The little Adopt-a-Road sign nearby listing the Smallwood Civic Association as its litterplucker gives the only indication that this remains a public road.
For nearly the next mile, the road seesaws between hard-packed sand or stone and soft, sticky mud. Virtually every other tree along this deep-rutted road sports a No Trespassing sign due, Woodstone says, to repeated dumpings of furniture and large bags of trash by uncaring visitors.
Up a hill and around a bend is an open gate with yet another round of signs warning people not to trespass. Those signs apply to the road as well, since from here on in the town does not own nor maintain the thoroughfare. Its a private road owned by Woodstone thus, the gate.
A smaller sign finally points out that up ahead is the dam access, but you must charge through the muddy gate to ensure youll be able to continue.
And shortly after that is where the already 4.5-mile journey comes to an end.
Straight ahead, a closed gate blocks off access to Woodstones private Chapin Estate.
To the left, a 25-foot-wide, gravel-topped access road built by Woodstone last year offers the best chance yet of getting to the Toronto Dam. Two signs point people down this well-maintained road to get to that access.
No signs warning about trespassing are to be found here.
Doesnt really matter, though huge logs completely block the road.
And thats perfectly legal, because for now it remains a private road. From here, there is no way to get to the Toronto Dam without trespassing on private property.