Penn Yan and Jerusalem seek resolution after delayed decision in sewage lawsuit

Gwen Chamberlain

The judge presiding over a lawsuit between the village of Penn Yan and Town of Jerusalem handed down a decision in the case on March 4, but no one was aware of the outcome until the middle of this month.

Dennis Bender, acting supreme court judge in Yates County, decided in favor of the village in a dispute over the payment of sewage disposal fees. The decision was filed in the county clerk’s office on March 10, but the parties involved did not learn of the decision until July, when the attorney for the village inquired about the status of the case.

Penn Yan Mayor Douglas Marchionda Jr. says the oversight was within the court system and now village officials are calculating the past due amount they feel Jerusalem owes Penn Yan for sewage treatment services.

Town of Jerusalem Supervisor Daryl Jones says while he’s not happy about the delay or the decision, he feels the town and the village can ultimately work together.

“I just want to be treated fairly. We felt we had no other options (than to stop payments),” he says.

Jones says he’s not upset with the judge or the attorneys, but he feels someone dropped the ball. “But you don’t challenge a judge. You wait until the decision is in,” he says.

In the most recent audit of Penn Yan financial records, it’s estimated that more than $100,000 in sewage fees are past due from the town. But village officials have met in executive session at least three times — once with auditors — to discuss the lawsuit.

The village filed the suit against the town of Jerusalem in 2008 because the town had stopped making payments for a portion of wastewater treatment services from the village.

The two municipalities first entered into a sewage disposal agreement in 1995. An addendum to the agreement was added in February 2002 when the town created Keuka Park Sewer District Extension #2.

The addendum spelled out that Jerusalem would pay Penn Yan $61,015 for the additional 60,000 gallons of sewage treated per day.

The addendum allowed Jerusalem up to 265,000 total gallons per day of use. But Jerusalem offials say the town often does not use even 50 percent of that, and the highest use was 130,603 gallons per day.

In January 2007, five years after the addendum was approved, Jerusalem officials notified Penn Yan that because the town never used the amount laid out in the addendum, “the municipal cooperation agreement forming the basis for Penn Yan’s claim expired by operation of law.”

They terminated payments based on their belief that the addendum wasn’t necessary.

Penn Yan officials argued that the addendum was excepted from the five year limit.

Bender agreed with Penn Yan Village officials.

Earlier this year, Jerusalem presented a Notice of Claim to the Village of Penn Yan, asserting that the village has over-charged the town for sewage disposal services to the tune of $325,680.

A notice of claim is a legally required first step in filing a lawsuit against a municipality.

Because of that notice of claim, Marchionda was reluctant to comment further. “It’s a difficult situation to discuss. We’re waiting to get some sort of indication from Jerusalem about how they want to proceed in settling their original debt,” he said.