Luzerne County levee fee based on advice from solicitor, director’s research

Sept. 12--WILKES-BARRE -- The Luzerne County Flood Protection Authority's executive director testified Thursday that the authority imposed the levee fee in 2009 based on a recommendation by its solicitor, Vito DeLuca, who at the time also was the county's solicitor.

Christopher Belleman, testifying in the levee fee lawsuit trial in county court, said he did his own research before voting for the fee as a member of the authority board at the time. The fee structure was developed with the help of then-Executive Director Jim Brozena.

It was the third day of testimony in the lawsuit that Kingston borough and several residents filed in 2009. The lawsuit is challenging the legality of the fee, which the authority imposed that year on the now levee-protected properties in the areas inundated in the 1972 Agnes Flood. The authority imposed the fee after the county commissioners decided not to fund flood protection.

Belleman said other fee structures were discussed but went by the wayside because they didn't follow the law. He said the board valued the solicitor's opinion.

The plaintiffs argue the fee violates the Municipal Authorities Act by ignoring higher-elevation properties that generate stormwater runoff. The lawsuit also contends more property owners in the county should be paying the fee because the levee held back the Susquehanna River when it rose to a record 42.66 feet during Tropical Storm Lee in September 2011. Kingston officials say, too, a flood would affect people throughout the county who work or use services in the flood plain.

'Abuse of discretion'

Attorney Robert Gawlas Jr., representing the authority, later tried to get the lawsuit dismissed, which Judge Richard Hughes denied. Gawlas had argued the plaintiffs failed to present any evidence to prove their case.

But plaintiffs' attorney Harry Mattern countered: "We have shown flagrant abuse of discretion."

Mattern argued the authority imposed the fee without considering economic factors or other sources of water flowing into the borough, and the authority board did not even care enough about the issue to seek a solicitor separate from the county. He had pointed out during Belleman's testimony that the then-county commissioners served on the authority board, as well.

He said he had shown there were levee workers plowing roads in Dallas, clearing snow from bridges and wiring time clocks in county buildings.

Belleman and Brozena had testified in the trial that the nine county road and bridge workers who work as the levee crew occasionally do work for the county. The workers are paid by the county, but the authority reimburses the county for those workers for their levee duties. County workers also help the authority during times of high water, he said.

Mattern argued there was no agreement that spelled out the shared duties, and he said the authority has not kept track of specific hours that levee workers spend on non-levee work.

But Belleman said he recently researched that and found that in the past six years, levee employees only spent 5 percent of their time doing non-levee work.

Trash duties questioned

Mattern also questioned Belleman about why levee workers spent time cleaning trash from the county's levee recreation area.

"There's a good bit of time spent maintaining the recreation area, and Agnes victims are paying for it," Mattern said.

But Belleman answered that the trash removal was 100 percent levee-related work. He said the Army Corps of Engineers inspects the levee every year.

"One of their guidelines is it is to be free of trash and debris," Belleman said.

As he did the day before with Brozena on the stand, Mattern questioned Belleman about the authority paying the electric bill for River Common recreation area lights, which are on the same electrical line and the same bill as the Union Street pumping station.

As Brozena had testified, Belleman said the authority was told by professionals that the costs of the lights would be inconsequential.

Brozena returned to the witness stand on Thursday afternoon as the authority's first witness. The licensed civil engineer and certified flood plain manager testified as to his qualifications and described his work on the Wyoming Valley Levee-Raising project as county engineer then later as the authority's executive director.

Under questioning by Gawlas, Brozena used maps and documents related to the project that raised the levee walls 3 to 5 feet for protection against an Agnes-level flood.

He said he worked with the solicitor to develop a fee structure in compliance with the Pennsylvania Municipal Authorities Act. He said he contacted the Sunbury Municipal Authority, which had developed a similar fee several years earlier.

He said he determined what revenues would be required, the number of properties in the flood plain and those protected by the levee and a comparison of flood insurance rates to base the levee fee on improvements to properties.

The fee, which generates about $1.1 million annually, must be paid by 14,200 owners of properties in the area affected by the 1972 Agnes Flood, when the river crested at 40.91 feet. The fee payments range from $46.85 to $93.70 for residential properties and $93.70 to $676.44 for commercial, industrial and tax-exempt properties.

The trial resumes Friday afternoon at 12:30 in Courtroom C of the Penn Place Building.

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