BERNE — About 30 minutes into Berne’s heated town board meeting last month, during which the board barraged Helderberg Lake Community Association officials with questions about the tax district they’ve requested to repair the high hazard Helderberg Dam, association lawyer Dave Brennan pushed back. 

“It’s a nice circular argument we’re running here … but at some point the dam needs to be repaired, based upon its condition,” Brennan said, responding to criticisms made by the board and some oppositional members of the Helderberg Lake community about the association’s alleged failure to take proactive — or at least more immediately reactive — measures to keep the dam in good shape. 

The dam was designated “Unsound — Fair” in 2018, a New York State Department of Environmental Conservation spokesperson told The Enterprise, which means that “the dam is expected to perform adequately under normal loading conditions” but doesn’t meet state requirements.

Because the dam is considered high-hazard, its failure poses significant danger to life and/or property, according to state law. 

Last year, the Helderberg Lake Community Association publicly presented its petition for a tax district to the town board, essentially asking the town to secure a $500,000 loan on behalf of the association to fund the repairs, to be paid back through taxation of lake residents. The petition was signed by 56 percent of unique property owners there, and 76 percent of total property owners, some of whom were able to sign multiple times due to multiple properties. 

Despite the fact that the majority of lake residents have signed, the town board has appeared largely sympathetic to the residents who oppose the district, and who have been showing up in force to all relevant town board meetings. 

Those residents have generally argued that the lake association has not done enough to raise funds in a manner that would reduce or eliminate a tax burden for residents, such as selling some of the land around the lake that the association owns, or applying for grants. Some were upset about the equity factor, as not all homes are officially on the lake and so owners of those homes enjoy fewer privileges compared to those that live directly adjacent to the lake.

Lake association members in favor of the district rebutted those arguments at the most recent board meeting, stating that the association’s property — which is assessed at $46,000, according to an Albany County map — is unattractive to developers, and that the lake association is not eligible to receive grants because of it can’t get 501(c)(3) designation. The association also allowed some residents who are considered off-lake to surrender their lake rights in exchange for removal from the tax district.

Councilman Leo Vane suggested at the meeting that the lake association members take out individual loans to fund the repairs, which would, across 50 people, be $10,000 per person — a strange proposal given that a major point brought up by certain lake residents in opposition has been their poor financial state, which, of course, would factor into any bank’s decision to qualify them for a loan. 

“As a town councilperson, would you help organize this effort?” asked Brennan. “Because if it were that easy, I don’t think we’d all have been here for the last six months.”

Supervisor Dennis Palow wondered why, if “everybody’s talking about the lives and people dying,” people are allowed in the lake at all. The dam is not considered to be in imminent danger of failure, otherwise it would be classified by the DEC as “unsafe” rather than “unsound,” according to DEC regulations.

More reasonably, Councilwoman Anita Clayton wondered if the water level could be lowered. However, the DEC spokesperson told The Enterprise that the water level would have no bearing on the dam’s safety rating and so would not be an adequate solution in this case.

Ultimately, the spokesperson said, the “simplest solution” is to “move forward with the currently approved and permitted plans” to repair the dam.

“If the dam remains in violation,” the spokesperson said in an email, “it could lead to DEC issuing an Order to have the dam repaired or removed in order to gain compliance with Dam Safety regulations.”   

Among other things, Councilman Thomas Doolin expressed concern during the meeting that accepting the proposal would set a precedent for the other groups that manage dams in the town.

“There’s the potential that Warners Lake, because they’re an intermediate hazard, is going to approach the town and say, ‘Well, we have a tax district created for Helderberg, let’s start one for Warners Lake, let’s start one for Camp Givah, let’s start one for Woodstock,” Doolin said. 

At a different time in the meeting, Brennan brought up the same point that the Enterprise made in an editorial last year about the role of local government in assisting its constituents.

“Why does the town government even exist, in your town or any town?” Brennan asked. “To serve the residents. The residents — a strong majority — put in a petition under town law to form a district to tax themselves to pay for this. They’re not putting you on the spot. This is what the job of town government is … You don’t exist in a vacuum, just to have meetings. You have to serve the residents.”

The board took no action, except to schedule another public hearing on April 13 at 6 p.m. Palow said that the board would meet again in April to “hopefully” make a decision.