Who Owns Rondout Creek?
by Pauline Uchmanowicz

photo by Roy Gumpel

Director Elia Kazan shot for his 1961 movie Splendor in the Grass on the spot that gives the hamlet of High Falls in the Township of Rosendale its name. A sentimental sudser starring Natalie Wood about an emotionally broken girl rebuilding her life, Splendor’s story line serves as a metaphor for circumstances surrounding a space downstream where water spills into Rondout Creek along Bruceville Road.

For more than a century, residents and visitors frequented the area known popularly as Rondout swimming hole, enjoying rapids, natural water slides, sulfur springs, ancient pine trees, wildlife and sandy beach. People fished and launched canoes and kayaks from its banks and in adjoining woods cleared space dubbed “the Commons” to play donkey baseball, and in later years other games. On October 20, 1999, the 9.5-acre parcel of riverfront passed from ownership by High Falls Fire District into the private hands of Robert Every. An eight-foot fence and posted sign attesting to the fact now block its access warning: “Trespassers will be prosecuted.” Some dreamers hold out hope of getting the site back.

The tale of the swimming hole’s evolution from public park to private property shares with its central subject a deep and “bottomless” quality, like the intricacies of small-town life itself. (A Rosendale resident myself, I admit to working Rosendale-channels familiar to me in gathering this story.) No mean-spirited people inhabit this drama, only concerned citizens whose visions of civic service and municipal responsibility focus their energies in overlapping or divergent directions. All but one person (who elected to speak through an intermediary) contacted for this story gave wholeheartedly of their time, several granting interviews of an hour or more or calling back to offer additional facts or insights. Honoring requests to withhold information or conjectures made “off the record,” I do point to composite conclusions without exposing individual voices.

In the mid-19th century, the D & H Canal Company, which began construction on its waterway in 1825, had holdings along the Rondout where Route 213 now curves through Lawrenceville, once home to a business owned by Watson E. Lawrence, a successful manufacturer of cement. Also furnishing a name to the area was Nathaniel Bruce, discoverer of chemical properties necessary to fabricate the area’s famed product. According to Manville B. Wakefield in Coal Boats to Tidewater: The Story of the Delaware & Hudson Canal, “The busy Rondout Creek . . . was lined with industries of all types,” including in addition to the cement plant a storage house and bluestone yard. Early in the next century, the canal company sold land to New York Central Railroad, which halted service in the late 1930s and sold the right of way to the swimming hole parcel to utility giant Central Hudson.

In 1945, High Falls Fire District purchased the parcel from Central Hudson for one dollar. A covenant was attached to the deed, stipulating that the riverfront be held in trust for the people of High Falls to use for recreation. As records show, the following year the covenant was repeated in slightly more detail. Dietrich Werner of Century House Historical Society in Lawrenceville has over a century’s worth of documentation, including photographs, postcards and resort advertisements, which demonstrate that the swimming hole and Commons were regularly used as public recreation spaces. When the land passed into private ownership in 1999, some people in the area formed the impression that the deal was struck in secrecy.
Mick Taussig, a High Falls resident who with his wife Rachel Moore owns 13 acres opposite the swimming hole claimed, “People became aware of the action in different ways. In December 1999, I heard power saws and saw a fire at the swimming area where huge trees were going down. I asked the guy who looked to be in charge what was going on and couldn’t believe my ears when he said he’d bought it. A rainy summer followed, so that many people didn’t take notice. Some who did come were told to leave and became very upset.”

Taussig called town and federal government officials demanding to know, “How can you cut down ancient trees?” A native Australian, he claims his country of origin is “much greener and more sensitive to conservation issues than our area in High Falls.”

In the wake of the sale, a group of concerned citizens called Friends of the Rondout formed in hopes of legally reversing the action. They likewise sought to raise consciousness in an effort to prevent “copycat crimes.” As member Peter Lambeorne Wilson explained about the organization, “No one is a ‘professional’ green activist. We’re just a group of people with the impression that what happened on Rondout Creek happens everyday, everywhere in America as consequence of not protecting our public space.”

Among the organization’s projects is “The Rondout Calendar 2001,” designed with a mix of historical and recent photographs courtesy of Century House archives and local photographer Roy Gumpel.

Accompanying pictures at the front of the calendar, text by Taussig and others provides a thumbnail history of the swimming hole and its sale. A time-line pinpointing relevant dates connected to the case is spread across the 12 months. According to Taussig, a former physician and current cultural anthropology professor at Columbia University, “The most terrific thing about the idea of the calendar is that it is a work of art—maybe a collector’s item—combined with a civic-action, wake-up call to the politics of our area. It’s also an object you can infuse with daily life and hang on the refrigerator.”

The idea originated with Taussig, who recalled a campaign in Australia to protect a place in Tasmania known as the Last Wild River. “Talented photographers like your Ansel Adams joined the protest movement and made a calendar and the river was saved,” he related. Taussig, Moore and others, who also donated free labor, paid for the Rondout version out-of-pocket.

At stake for many in the green organization is the question of who “owns” the Rondout. “Any river deemed navigable belongs to the people of the state. We believe that this is a navigable river that belongs to the people,” Taussig said. As Wakefield documents in his D & H Canal study, the site was chosen precisely because of the navigable capacity of neighboring Rondout Creek, which feeds from the Wallkill and empties into the Hudson River. The subject in general made Taussig muse about “the passivity of Americans” regarding land conservation.

Circulating over and over when the Rondout swimming hole gets mentioned is litigation, particularly the claim that the land poses unwanted liability for the town. Century House’s Werner scoffed at the idea. “Anyone can sue anyone, but no law says you have to be insured for liability if you own land free and clear. There’s a public misconception about insurance,” he stated, testing me with the example of who do you sue if you or someone gets hurt or killed hiking the Appalachian Trail. Publicly accessed land is exempt from such liability, he suggested, unless the offending party can prove to be delinquent or culpable.

“The more important question is why the public access covenant was written into the deed,” Werner wondered. Observers have speculated that the clause was necessary for Central Hudson to retain an easement (in legal language, a right or privilege that a person may have in another’s land, as the right of way) for installing power lines should the need arise.

Shortly after speaking to Werner, I ran into my lawyer at the Rosendale Post Office and asked her what she knew about liability and public land use. She immediately recalled a “general obligation statute” stating that if land is made accessible to the public for recreational use—whether publicly or privately held—the owner cannot be held liable. Local folklore corroborates the existence of the statute, as several people claimed to know that if you “post” your property as open to the public you can be sued, but if you don’t, you cannot.

Meanwhile, the Fire District has been accused of selling off the swimming hole in a callous way, leaving locals concerned over the fate of neighboring waterfront. Indeed, Taussig lamented, “The whole of riverbanks are being bought up in other parts of New York and New England and being turned into public parks. Why can’t that happen in our township?”

To address that question, I spoke to Otto Scherrieble, one of Rosendale’s elected Town Board Councilmen. Though he has been a firefighter for 35 years and is currently the assistant chief of his district, Scherrieble explained that the sale of the swimming hole had “nothing to do with the town.” The sale was brokered through High Falls Fire District, a governmental subdivision that operates “completely separate and independently.” He stated that elected officials from both Marbletown and Rosendale were approached “verbally” by someone in the Fire District to see if either wanted the Rondout parcel in question, but both tow ns already owned and operated public recreation parks, “so they were not interested.”

Asked what he knows about the actual sale itself, he said, “I know a lot about it but the one to speak to is the Chairman of the Fire District Commissioners, who happens to be my wife, Elisa.”

I admitted to flunking civics in the school of life, so the patient Elisa Scherrieble explained to me the mutual agreement between Rosendale and its firefighters. Five fire districts with respective houses serve the town’s population of just over 6,000 (as compared to one district and two houses in New Paltz, a town with high-rises and double the number of residents). Governmental entities separate from the town, the fire districts each have a board of five elected commissioners, who serve as the “employers” of the fire departments. One commissioner is elected every year to a five-year term by duly registered voters of the High Falls Fire District, drawn from Board of Elections rolls. None of the commissioners draw salaries and neither do firefighters; all are volunteers. Yearly operating expenses, gathered on a tax-collecting basis, cover the cost of insurance, repairs, maintenance and the housing of equipment and tools. “Apparatus”, such as trucks, are five-to-ten-year budget items. The High Falls Fire District includes a small portion of Rosendale with the majority of its boundaries in Marbletown.
In place of discussing the Rondout Creek matter, Chairman Scherrieble preferred to advocate volunteerism and civic morality, describing satisfaction that comes with service to fire departments. “People don’t understand. We’re all on duty 24-hours a day, 365-days a year and it’s all volunteer,” she passionately stated.

Acquiescing to my request for details regarding the 1999 land sale, she referred to a 50-page document the High Falls Fire Commissioners have compiled with a nod to the Freedom of Information Act. An old county map shows the 9.5 acres of land bordering Bruceville Road beginning behind the Egg’s Nest and stretching to the Camp Huntington property further up the block. The decision to divest the land, she says, began over a decade ago, when the Fire District Commissioner of the State of New York inquired as to why High Falls was holding on to so much real estate.

“It’s a liability,” she reiterated in assigning the principal reason for deciding to sell. When I mentioned the prohibition statute governing public, recreational land, Scherrieble paraphrased Werner: “Look, anybody can sue anybody for anything.” A lawsuit (though it never came to trial) involving someone who jumped in the swimming hole and ended up with a spinal injury dogged the Fire District for years. She added, “It’s not even the dollar factor in the liability insurance; it’s the responsibility you have in owning a piece of property. And it’s the obligation of the taxpayers of the district for multi-million dollar lawsuits.”
Reviewing the history of the land divestment, Scherrieble cited an exchange of letters between High Falls Fire District and the state government dating from 1991. Correspondence continued until 1997, when through a lawyer named Doug Hunt the District obtained a release from Central Hudson from the right-of-way easement as well as the clause granting public-use access. The Fire District ordered an appraisal of the property, which Scherrieble insists is located on a creek—not a river, a designation she finds perplexing.

Since any property assessed at over a certain value has to come up for public referendum, the Fire District posted an announcement to the fact in the legal notices section of Kingston’s Daily Freeman on November 11, 1998. The notice summoned “all duly registered residence of the High Falls Fire District [for] voting on proposition of land located on Bruceville Road owned by Fire District for a sale of $50,000 or more.” The referendum became part of a December ballot that included voting for commissioners. At the office of the Kingston paper, Joann Dodig of the classified department showed me a year’s worth of logs, which included several listings from High Falls Fire District, all written on the same gray stationary with red letterhead. Nothing untoward marked the listing in question, as the District regularly uses the newpaper to call for meetings, votes, and referendums as do neighboring towns and municipalities. Thirteen votes ultimately were cast in response to the one column (1 3/8 inches) notice in the back of Section C, and the measure passed. Cross-listed throughout the county, the property went on the block and stayed there for nearly two years.

Asked about a rumor that local officials were interested in creating a “light-industrial zone” (in concert with its bygone history) further down on the Rondout, Scherrieble insisted, “That’s news to us. We can have business and industry—and yes, there are places where we don’t want to have it. We never would have developed the swimming area. If you check the deed, you’ll see it’s located on a flood plain. There’s only one buildable lot for one house, the feasibility of which the buyer spent a lot of time researching.”

On the subject of the calendar, Elisa Scherrieble maintained, “Otto bought one because a woman pictured in the archive photos, Benita Sermolin, was a dear friend of his who passed away. The pictures are from a long, long time ago. It was very different back then—a very small, close-knit community. But then people buy land and your swimming hole and it’s gone.” While admiring the “nice pictures” in the calendar, she admits to taking issue with the “tone”, which she declined to qualify, wishing to avoid unintended acrimony. She might have been referring to a blurb about the Washington Monument, made of Rosendale cement, which includes the remark: “[N]ot even Washington could have envisaged a day when Rosendale would see its public swimming hole stolen by public officials and utilities.” Scherrieble conceded, “I know everybody moves to the country. Still, you have to have some kind of progress. But if you wanted to own a piece of that lake or creek you should have bought it.”

The Chairman of the High Falls Fire District Commissioners, emphasizing that her misunderstood organization is “about saving lives and property” related that the recreational area caused headaches over the years when people came in from out of county and state to use it—some to light fires and party. Though in recent decades swimming holes have been bought off and signs posted, she assured that the land was sold and purchased in good faith. Meanwhile, up at the top of the falls toward Accord a public boat launch remains. “Every parcel we’ve sold we’ve had controversy over. All of us are getting to the point of asking, ‘When will there be closure on this?’ And there should be. Fire Department people are being hassled.” (High Falls fire chief Donald Newell did not return my call, agreeing that Scherrieble would speak to me on behalf of his organization.)

High Falls realtor Mary Collins, whose office acted as selling agent for the Fire District, also weighed in on the circumstances surrounding the swimming hole sale. She recalled that the Commissioners also have sold property, locks and walks along the canal to the D & H Canal Society, as well as to other civic and private organizations. Once freed to sell the Rondout parcel in question, they hired broker and listing agent Tom Jackson, who advertised the land. “A sign went up on the property but it kept getting stolen,” she related. Several parties, including non-profits such as the Open-Space Institute and private individuals expressed interest in keeping the land for the public. One such individual even came in with a check in hand. (Sources say this was restaurateur Richard Murphy, owner of the Eggs Nest who counts beautification and preservation of High Falls as part of his business plan; Murphy reportedly balked at the potential liability associated with the site as well.)

The property stayed on the market for as long as it did because Central Hudson took a long time delineating right-of-way. Eventually Kingston broker Dave Kaplan of RE/MAX Realty Group brought in the buyer, owner of record Robert Every, who paid a purchase price of $60,000. Collins also carefully noted that the 6% commission was divided with RE/MAX and that she shared her 3% ($1,800) with the office staff.

“Frankly, we all miss the swimming hole in town and I do too. I hate that it had to happen, but it was all done legally, and we held several meetings with brokers, attorneys, and reporters before the sale,” Collins explained. She added that land sales along the Rondout have been fodder for public debate for decades. For instance, years back, the town had the opportunity to obtain a huge parcel, including the waterfalls, but decided it wanted to go into the electric business. Collins, one of the very first people to buy a Friends of the Roundout’s calendar, characterized the reformers as very “good-hearted” people. “They have the memory of the place and it’s hard for them to give it up.”

Robert Every, tax assessor for the town of Olive, told me that for several years he looked for waterfront property through the Ulster County multiple listing real estate service, bidding on several. When the Rondout parcel came up for sale, the selling broker told him it had “issues”, including easement and flood plain. “I grew up in the town of Olive and swam with friends there in the 80s. We used to jump off the bridge near Route 213. I made an offer to purchase, with one buildable lot for the use of a house. I don’t plan on sub-dividing it since approval is for a single-family dwelling. If I decided to sub-divide, even to put up a cottage for my parents, I’d need approval from the town.”

As for the controversy swirling about his property Every maintained, “Most information I get is through letters to the press and indirect messages. Well meaning groups tried to purchase it before me but they were afraid of the liability.” Asked about the specter of light-industry along the creek, Every answered, “There’s a large lot downstream from mine with creek frontage. I wouldn’t be happy to have light industry go in there, but if they got the permits I couldn’t do anything about it. Commonsense-wise I’d love to see it stay the way it is. But if zoning changes are proposed I can voice my opinion. There are other social and cultural issues involved here, but how can you deny ownership? I didn’t conspire with the Fire Company to buy the land; I was just a guy who walked off the street to discuss a listing.”

Friends of the Rondout organizer Roy Gumpel, who held the first meeting in his purple barn when no trespassing signs went up on Bruceville Road, is familiar with the acreage of which Every speaks. Starting from the premise that “there must be a way for us to swim in this river and own this land,” Gumpel and his group are currently seeking other sites to obtain for public recreational use. They are interested in parcels on both sides of the creek beginning at the Lucas Turnpike and ending in High Falls on the Bruceville side. One 80-acre piece sits on the site of the old sand and gravel company, containing beautiful ruins and locks. A 100-acre stretch includes historical places, such as Coxem Cemetery, a Revolutionary War relic still in use today as burial grounds.

Gumpel wrote a letter to the editor of The Blue Stone Press after the paper reported that people in Rosendale town governance wanted to see the property developed for light industry. Voicing concern, he stated, “We have industrial zones up the road in Kingston with fantastic old buildings with all the property in the world available to you without the neighbors yelling to leave, but leave Rosendale alone.” As passionate about volunteerism as is Elisa Scheirrible, Gumpel is a firefighter as well as a green activist. He related, “As soon as I bought a house in the community I ran over and joined the fire department. How can you not join? I’m very honest and up front with my peers about my feelings on the land and the calendar.” He also claimed Otto Scheirrible as “a friend,” calling him “a great guy.”

Gumpel, an internationally respected photographer who has lived in Ulster County for five years, has worked on television projects for National Geographic. He is currently shooting a movie about Route 66 in co-operation with a big Japanese film company and an American producer based on a long-term photographic essay project. He also works for different ad agencies in New York City, including doing photographs of jazz musicians for SONY. “Then I return to Ulster County to sit in the fire station in Accord. I don’t know many people who do that,” he stated.

Gumpel, whose calendar photos attest to his increasing interest in nature photography, believes the sale of the swimming hole in part reflects an “anti-outsider” mentality towards weekenders and newcomers. Speaking on behalf of Friends of the Rondout he concluded, “We don’t want this to happen again.”
Mick Taussig is not convinced that this is the end of the case, stating, “Referendum or no referendum is irrelevant. You need professional, legal council at a real estate sale. Gerard Carey, a retired law professor and long-time resident says the property did not belong to the Fire District but to the people of High Falls. At the sale, there was no legal representation for the people, though attorneys were present all around otherwise when they closed.”

Asked about opening his own land for public recreation, Taussig said that it has been private property since the early days of canal construction. Beside its lack of history as public access space, he claimed it contains steep, difficult terrain. Offering instead his vision of municipal land governed for public use, he spoke not in terms of closure but “future outcomes.” One such positive outcome would be “trading” the swimming hole for the 80 and 100-acre parcels now up for sale. He observed that “High Falls has no drinking water because of toxins in the aquifers due to light industry [a machine shop] and the federal government has had to step in.” Gumpel holds the view that access to pristine water and wildlife will attract tourism, appealing to business interests while maintaining a conservation point of view.

Though at times expending their energies at cross-purposes, participants on all sides of the Rondout Creek episode seem to share a single message: Respect our way of doing things and we’ll respect yours, and let’s try to meet in the middle. This makes me think of Town Meeting (still prominent in New England), where elected, voting members represent their precincts (contiguous neighborhoods) on matters of local governance through public assembly, aired on local-access television. I grew up watching my parents serve as Town Meeting members, and for them, reading legal notices in the local newspaper was a daily activity, with referendums on selling or purchasing public land making for topics of dinner conversation. Under the Town Meeting model of governance, business owners, activists, reformers and concerned citizens interact with caretakers of municipalities in open and reasoned dialogue. As one High Falls resident, political organizer and activist put it, “Rosendale is poised to act as a community that collectively participates in managing our municipalities and public domains.”

To check for referendums, Fire Commissioner elections and other voting matters in your district, check the legal notices in Kingston’s Daily Freeman. “The Rondout Calendar 2001” may be purchased in High Falls at The Beehive and the Food Co-op, and in Rosendale at Springtown Greengrocers. Friends of the Rondout may be contacted at PO Box 342, High Falls, NY, 12440.