It’s a classic case of “dammed if we do, and damned if we don’t.” There are pluses and minuses no matter what is decided.
Here is the situation:
The owner of the dam that holds back the waters of Duane Lake has offered to give it to the Duane Lake Association, Inc.
The board of the directors of the DLA did not go looking for this. The offer and its dilemma simply arrived by email more than a year ago. Since then, the DLA Board has been pursuing answers to every relevant question it can think of. New findings, new information, and new possibilities have been discussed at Board meetings probably every month since then.
Wednesday evening, May 6, at a meeting attended by more than 40 Duane Lake neighbors, the Board sought perspectives from our Duane Lake neighbors. A “backgrounder paper” that outlined the issues, as best we could see them, was distributed to every Duane Lake property owner about a week in advance.
No announcement has been made of an already-made decision or favored course of action – because there isn’t one. Opinions of board members are as varied as those of the larger community. Moreover, DLA bylaws state “The Association shall not have the authority to initiate (either themselves or through contract) any chemical application or lake management action without first obtaining at least two-thirds approval of the membership present at a duly called and held annual, regular, or special meeting at which a quorum is present.”
In other words, acquisition of title to the dam is up to the members, not the Board of Directors.
The May 6 meeting was intended to be a sharing of the situation and the facts as best we know them, and answering questions as best we could.
An online survey will be distributed shortly to more accurately gauge any consensus and tap into thoughts of those who did not attend. It will be an “initial survey,” not a final vote.
The matter comes down to these questions:
- What are the risks, costs, and possible scenarios if we say Yes?
- If we say Yes, are there legal devices to reduce legal liability in the unlikely event of a dam failure?
- What are the risks, costs, and possible scenarios if we say No?
Questions arising if we say Yes
LIABILITY
- What is the likelihood of dam failure and resulting huge legal liability claims?
Answer: Low probability, but never impossible. The dam has been inspected by a highly reputable dam safety engineer who found the dam in need of some
repairs and maintenance, but quite solid. The dam is classified by NY State as class A, meaning low hazard for downstream damage. As per NYS regulations, Class A dams do not require dam owners to create emergency notification and evacuation plans, although doing so could be seen as responsible citizenship and ownership.
- What advantages would accrue to the Duane Lake Association and to any individual property owners?
- What strategy would be available to the DLA to reduce legal liability for damages from dam failure?
- Step 1: create a new non-profit corporation recognized by the IRS as a 501(c)(3) non-profit to replace or serve concurrently with the current 501(c)(4). Designation as a 501(c)(3) also should significantly increase chances of obtaining a government grant for one-time repairs of the dam.
- Step 2: This new organization would be eligible to form a subsidiary Limited Liability Corporation (LLC) that would take ownership of the dam, perhaps the lake itself, and any other properties it might acquire in the future. We are advised that step 1 is a legal prerequisite to step 2.
COST OF OWNERSHIP
- Insurance costs? The difficulty in answering this question is reflected in these facts:
- We have received some price estimates in the range of $10,000 per year, about twice our normal annual income.
- The Mariaville Civic Association informs us that they carry no insurance whatsoever on their Mariaville Lake dam, due to the price of insurance.
- Even with a good deal of searching and many inquiries we have been unable to find a single lake association that has “dam insurance.”
- Those that do have insurance for a dam rely on an ordinary property owners’ insurance policy, as does the current owner of the Duane Lake dam.
- The insurance agency that now provides basic insurance for the DLA declined to quote a price for property liability insurance that includes the dam unless a professionally prepared estimate of downstream damage was done first.
2. Property Taxes?
The DLA acquired title to the lake, itself, largely to give us legal standing to enforce trespass rules and be recognized as authorized to perform lake management tasks. The Town Assessor then granted the DLA an exemption from property taxes. It is likely the same would happen if the DLA took title to the dam.
3. What repairs and maintenance have been prescribed for the dam and what is the projected cost for doing the work?
- Answer: This question raises serious differences of professional opinion.
- Over the past several decades the Dam Safety Division of the NYS Department of Environmental Conservation has issued a series of inspection reports that prescribe removal of all trees and their root balls from the dam. Three separate engineering companies have visited the dam and echoed that prescription
- However, both an experienced professional forester (retired from a career at DEC) and a certified professional arborist tell us that although the trees perhaps should not have been allowed to grow, removing trees is a bad idea, mainly because the root systems hold the soil in place and the leaf canopy breaks the rainfall and thus mitigates erosion. Moreover, they say, the dominant species of trees on the dam are shallow rooted.
- Given their familiarity with trees and, contrary to the engineers’ statements, these “experts” say these trees do not have deep root balls. If uprooted by wind, the trees would leave only shallow scars in the soil, posing minimal risk of serious damage and relatively easy-to-repair.
- Concerns about removing only some trees, thus leaving the remaining trees at higher risk of being blown over, are valid and rooted in real-world experience.
- The most serious repair tasks require the addition of large “rip-rap” stones and use of earth-moving equipment to undo erosion caused by several storms sending water over the top of the dam. The price-quote for a driveway to the dam for this work (two years ago) was $20,000. The cost of repair work would be on top of that.
- The DLA has had exploratory discussions with an engineering firm about their taking-on this dam-upgrade project, including generating applications for grants. Initial discussions seem promising.
NOTE: Replacing the town-owned under-the-road culvert through which Duane Lake drains is essential for proper protection of the dam. The culvert has raised the water level to a height that leaves little capacity for storm water retention and has caused some erosion of the top of the dam.
After years of urging (nagging?) by the DLA, the Duanesburg Town Board hired the Bowman engineering company, Troy, NY, to investigate several issues involving the culvert, canal, and spillway. Bowman issued a written report that recommends replacement of the culvert with a bridge. This would be a crucial step in restoring stormwater-holding capacity to Duane Lake and thus protecting the dam.
Undertaking the work depends on the 2026 NYS Budget. The Bridge NY Program, created by the state legislature in 2016, offers 100% reimbursement to towns for replacement of bridges and culverts. Funding for 2026 is in the Governor’s proposed budget, not yet approved by the NYS Legislature.
Questions arising if we say NO
- Are there risks if we say No? What scenarios might play out and what might they mean to everyone or specific individuals around the lake?
- What if the current owner were to sell the lot and dam to another private party? Could this adversely affect the interests of all the other holders of lake access rights? (Due to associated liability questions and a legal inability to build on the dam lot—being a “wetland,” the probability of anyone buying it is very small.)
- What then? The owner says he would quit paying taxes on it. As per legal advice, after about five years, ownership would revert to Schenectady County.
- What then? Schenectady County would, by law, put the lot and dam up for public auction. When it did so for the lake bottom about 15 years ago, no one bid on it. Would we expect any different outcome or behavior on anyone’s part if this process were to be followed for the dam? Answer: Probably not.
- If the County were to “get stuck” with ownership, it would own the liability and obligations for complying with DEC requirements for maintenance and repairs.
- If “stuck” with ownership of the dam, might Schenectady County attempt to open Duane Lake for public recreation? Answer: unknown. Such access would have to be through the dam lot, itself.
- If “stuck” with ownership of the dam, might Schenectady County decide to remove the dam, thereby reducing Duane Lake to dry land and depriving at least half the homes of their domestic water supply. Answer: very unlikely.
- What is the downside risk of following this Schenectady County ownership strategy? What are the odds that the DLA would be deprived of a chance to act as necessary—if necessary—five years or ten years from now? Answer: very low odds
THE MORAL QUESTION
Is it morally right for Duane Lake property owners to enjoy the benefits of lake living while continuing to transfer the liability risks to someone else?
HOW DOES THIS GET DECIDED?
As per the DLA bylaws, a vote of DLA members is required.
Our bylaws state, “At all annual and special meetings of the members there shall be present at least fifteen percent (15%) of the members of the Association entitled to vote at such meeting, either in person or by proxy (written or electronic), in order to constitute a quorum for the transaction of business.”
Also, “Member households shall have one vote per taxable land parcel . . .”
We need your input! The Duane Lake Association has been offered a gift of the dam. Only the membership as a whole can make a decision of this magnitude. The board has collected data on the options, costs, and implications, but does not make the decision. The board held a community meeting and now asks for more input. This is not an official vote, just a survey. A formal vote to occur later will be restricted to paid members of the lake association.
You should have received an email earlier today from the DLA with a ONE TIME link to fill out a short survey. This email invite is strictly a survey and is intended to help prioritize next steps the board should take, if any, on behalf of the Duane Lake dam offer.
THANK YOU
Please remember to submit your email survey.
If you have questions or need assistance, please email the DLA at: duanelakeassoc@gmail.com
