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Photo by Chris Rowley
Courts Decide Dam Owners' Dispute By Finding That It Actually Belongs To New York City

NAPANOCH – A February 19 decision handed down by a 4-0 unanimous majority of the Appellate Court has ended a multi-year nightmare for the two families that own the property on either side of the dam at Honk Lake. Whereas the state Department of Environmental Conservation had maintained that they jointly owned the dam and were responsible for its maintenance or removal, the court found otherwise. Indeed, the state's top justices found that the dam and the property beneath it all belongs to New York City.

"The Appellate Division reversed the DEC Commisioner's ruling and holds that neither the Cooks nor the other neighbor, the Bergers, owns the dam," explained attorney Ben Gailey of Jacobowitz and Gubits LLC, who represented the Cook family who own land on the west side of the dam. "The court states that based on the evidence, New York City owns the dam."

Chuck Dworkin, of Albany-based Nolan & Heller, who represented the Berger family, said, "The Court looked at an important threshold issue. It all goes back to the 1905 Act of the Legislature, which became the basis for the acquisition of lands west of the Hudson that would be used to build the tremendous water supply system for New York City."

To quickly refresh the history, let us recall that the dam was built in 1898 to generate hydroelectric power. It is a concrete gravity dam, built of the finest Rosendale cement. Today it stands 42 feet high and is 294 feet wide. In 1941, while still in use, New York City completed the Merriman Dam upstream from Honk Lake and — crucially — acquired through condemnation certain real estate and the right to divert the waters of Rondout Creek.

Diversion of those waters ended the Honk Falls Dam's usefulness for power generation. Central Hudson claimed compensation from the city and that was settled in 1948.

The parcels on either side then went through various owners until the Bergers acquired theirs in 1992, and the Cooks bought theirs in 1999.

Back in 1981 the Army Corps of Engineers had concluded that the dam was "unsafe" and in need of certain remedial repairs. Beginning in 1983, the DEC periodically inspected the dam and issued safety reports, each time concluding that the dam was a "class C hazard," meaning that if it failed, substantial damage to highways, industrial buildings, homes and other property would follow. In 2006, DEC notified the Bergers and Cooks that they were the joint owners of the dam and had to repair and maintain it. In 2007, DEC commenced an enforcement proceeding against the two families and in a hearing at that time a DEC Administrative Law Judge determined that they were the joint owners of the dam and liable for its maintenance.

The two landowners were directed to retain an engineer, develop a compliance plan, provide financial assurance in the amount of $500,000 and were assessed a civil penalty of $116,500.

The Bergers began an Article 78 proceeding against the state DEC, New York City and the Cooks to annul the DEC's determination. The Cooks filed cross claims against DEC as well. Eventually the Supreme Court in Ulster County transferred the case to the Appellate Division.

Dworkin pointed to the fatal flaw in the DEC's case.

"Under the 1905 legislation it says the way you go about taking land when you might need to build facilities, like dams, is that you create maps describing the property you plan to take — say under eminent domain — and in that petition you say 'we are going to take everything shown on the maps.' And if there is a limitation on what you're going to take, then that's where you say it.... In that 1941 petition for eminent domain, due to the Merrimam Dam, that's where they needed to say they were only taking riparian rights and not all the property on the map in that parcel."

The map shows that this did not happen, and thus the city took possession of the land beneath the dam as well as the riparian rights. And nothing in that 1941 petition says they were not taking the entirety of the property shown on the map, which included the dam.

Any appeal by the DEC or a motion for reconsideration must be filed within 30 days. However, legal sources say that it is extremely unusual to attempt an appeal of a unanimous decision by the Appellate Division.

"They would have to show there was something fundamentally wrong with what was done by the court," Dworkin added.

With the responsibility for the Honk Falls Dam now belonging most apparently to New York City, all responsibility for maintenance, repair, or removal of that dam falls on the city, not the local property owners, including the safety problems that led to DEC's lowering of Honk Lake waters last summer.

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