By JAIME STUDD
For the Express
ALBANY - Five downstate counties opposing the Hudson River Black River Regulating District’s intent to charge them for flood control measures have filed a motion for leave to appeal the decision recently handed down by the Third Judicial Department of the Appellate Division of the NYS Supreme Court.
In May, that court ruled in favor of the HRBRRD’s decision to demand payment from the counties of Albany, Rensselaer, Saratoga, Warren and Washington as the entities that most benefit from the district’s flood control measures.
Though the district had originally charged the counties $4.5 million, the court ruled that the apportionment had neglected to account for state-owned land and ordered the district to recalculate what it could charge the counties.
Following that ruling, attorney Mark J. Schachner, who is representing the counties in the case, said the counties might be open to reviewing the new figures brought forth by the district before moving forward with further appeals.
Citing the limited time the counties have to file a motion for leave to appeal, and the fact the regulating district has yet to deliver the reapportioned figures, however, Schachner said, the counties have decided to file the motion.
“We don’t get to appeal as of right. We can only appeal if the appellate division or the court of appeals allows us to do so,” said Schachner. “It is correct that the counties have authorized that request to be made and we’ve made that request initially of the appellate division.”
“You only have a limited amount of time in which to request the appeal and the district has not yet recalculated the reapportionment, or at least the district certainly has not informed us that it has recalculated the apportionment,” Schachner added. “We assume that once the district recalculates the reapportionment, it will let us know. And it has not let us know that it has done that. You can’t let time expire, so, in the meantime, we have taken the next step to make that request.”
Robert Leslie, the attorney for the HRBRRD, said he intends to file papers opposing the county’s motion for leave to appeal. Should that motion be denied, Leslie said he also expects the counties to file a similar motion with the NYS Court of Appeals, which is another route the counties could take.
“We’ll oppose that as well,” said Leslie. “They’re allowed to do that and I think really what they’re trying to do is delay having to pay anything.”
Leslie said the county’s recent motion is not unexpected.
“There’s a time limit for them to seek leave to appeal, so I’m not really terribly surprised,” said Leslie. “I think they’re pursuing every avenue that they can in order to avoid ultimately having to make payment, which, basically is just diligently representing their clientele, or their constituency, as it might be.”
HRBRRD Executive Director Mike Clark said the district is still in the process of recalculating the apportionment.
“The regulating district is going to stay on the path we’re on, and we are in the process of complying with the decision that came from the appellate division,” said Clark. “At this point, they don’t have firm numbers from us. The board has not publicly adopted the apportionment or considered it. It’s still an internal working document that we’re in the process of revising our calculations.”
Both Clark and Leslie said they hope to have the reapportionment figures ready to be voted on in time for the district’s July meeting.
“We had hoped to get them together for the June meeting, and got pretty close, but weren’t able to dot all our I’s and cross all our T’s,” said Leslie. “We hope to get it done for July. We’re trying to make sure that whatever we come up with is iron clad.”
Clark also expressed confidence that the decision will be upheld.
“Keep in mind that the decision that came down from the appellate division last month was unanimous,” said Clark. “As I understand it, it’s no sure thing that an appeal be granted.”
Should the new figures be acceptable to the counties, Schachner said the possibility remains that the motion could be withdrawn.
“It would be up to the counties whether or not to withdraw request if the district comes back with acceptable figures, but that would be an appropriate possible course, if that happens,” Schachner said. “You can always withdraw the request.”
Leslie said that the counties could also choose to begin the appeals process anew, once the new apportionment figures are received.
“What they’re doing is they’re appealing the old decision, the appellate division third department decision,” said Leslie. “What we’re doing is we’re coming up with a new apportionment, which they can challenge the new apportionment the same way they challenged the first apportionment. They’d start over.”
“Ultimately, our goal is to make something that is bullet proof,” he added.
This most recent motion is just the latest in a series of legal battles involving the regulating district that began in 2008, when a court ruling eliminated its ability to levy taxes against downstate hydropower plants, essentially wiping out 80 percent of its revenue.
The regulating district then turned to the five counties as the entities that most benefited from the Conklingville Dam and the flood control measures it provides.
In April 2011, the Supreme Court in Saratoga County ruled in favor of the regulating district. The counties appealed that decision, leading to May’s ruling.