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Lawsuit aims for removal of 2 toll barriers CARL P. PALADINO: "I don't think we should have to wait anymore."

Erie County Executive Joel A. Giambra will join developer Carl P. Paladino in suing to require the removal of two Thruway toll barriers that for decades, they say, have frustrated commuters en route to downtown Buffalo and have encouraged businesses to settle elsewhere.

Giambra said Monday he will devote up to $35,000 of the county Law Department's budget in an effort to rid the Niagara Thruway (I-190) of the Breckenridge and Ogden toll barriers, which he and Paladino contend should have been razed years ago.

"I don't think we should have to wait anymore," said Paladino, a Buffalo landlord who threatened a lawsuit last year as the state Thruway Authority prepared to raise its tolls. "I have reached a point in my life where I am really impatient."

Their attorney, Michael B. Powers of the Phillips Lytle law firm, will argue that the long-forgotten Niagara Toll Removal Act of 1968 mandated that toll barriers on the Niagara Thruway be torn down once the federal government reimbursed New York State for the original cost of building the toll barriers.

Since it is a toll road, the Thruway went years without federal highway money, until legislation pushed in 1991 by then-U.S. Sen. Daniel Patrick Moynihan, D-N.Y., authorized millions for the Thruway in 1996 while allowing tolls to remain systemwide.

The lawsuit to be filed this week in State Supreme Court says that some of the federal money should have gone into a fund to comply with the toll-removal act, which was added to New York transportation law in 1968 to respond to community outrage at the time.

Considering that those toll booths collect about $11 million a year, Powers contends that $110 million has been taken illegally since 1996.

Powers, Paladino and Giambra said Buffalo commuters must pay tolls on a highway that complements the Thruway, when commuters in other cities are spared the extra cost. For example, Rochester's I-390, I-490 and I-590 have no tolls. Nor does Syracuse's I-690, Utica's I-790 or Schenectady's I-890. Nor, for that matter, does Buffalo's Youngmann Highway (I-290).

"The Thruway Authority has indicated, every step of the way, they are going to fight this," Powers said, adding later that he expects a sort of "David vs. Goliath" battle.

Thruway Authority spokeswoman Betsy Graham said she could not comment on the lawsuit itself. But she repeated the authority's past statements that the highway is one of the nation's safest and best maintained. "Without the tolls," she said, "the authority would not have the ability to maintain the road and bridges on that section."

As for the Niagara Toll Removal Act, she referred questions to the state Department of Transportation, whose commissioner is the act's trustee.

Transportation Commissioner Thomas J. Madison is named as a defendant in the lawsuit. DOT spokeswoman Jennifer Post declined to comment Monday, explaining that the department had not yet received a copy of the papers.

The Niagara Toll Removal Act was written in a way to counter concerns about promises made to the authority's bondholders. They had been promised that tolls would be collected to repay the money they had lent for construction, so tolls in 1968 could not be removed without some new source of money.

Even today, the authority still borrows millions of dollars for state government's needs, and its officials have said that, therefore, the tolls must remain. Powers expects to hear that argument during the court case and will counter that a new source of revenue is available: federal dollars.

e-mail: mspina@buffnews.com

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