batavia

A developer seeking to build a senior housing complex in Batavia has filed a lawsuit against the Genesee County Economic Development Center over the board's decision in July to block the project from receiving tax breaks.

The suit alleges that the GCEDC board's decision was "arbitrary and capricious, irrational, an abuse of discretion and affected by an error of law."

The suit calls for a court-ordered reversal of the decision to deny Calamar a public hearing on the project and the proposed tax abatement. 

It doesn't ask the court to actually grant the tax breaks. Typically, the GCEDC board votes on whether to grant tax exemptions after a public hearing. Calamar is seeking to present its project to the public and give the public a chance to weigh in on whether it should receive more than $1.4 million in tax breaks for the project.

Calamar has a contract to purchase 33.4 acres at 3989 W. Main Street Road, Batavia. The development plans call for 110 middle-income apartment units rented exclusively to people 55 and older.

The developer, with offices in New York, Canada, Massachusetts and Nebraska, says it plans to invest more than $11 million in the project.

GCEDC's position is that the lawsuit is without merit. 

Here is a statement provided by Rachael J. Tabelski, marketing and communications director for GCEDC:

The Genesee County Economic Development Center is in receipt of a notice of a file of claim against our organization by Calamar Enterprises as a result of a recent vote by the GCEDC board.

We believe the allegations in the claim are without merit and will be determined by the courts as such.

As this is a legal matter, the GCEDC will have no further comment.

The suit implies that Calamar was misled about GCEDC's willingness to support the project and that the board's decision went both against GCEDC's own policy and prior approvals for similar projects.

The project was first presented to the board by Mark Masse, VP of operations for GCEDC, in February.  Masse said during the meeting, according to a quote in Calamar's petition, that he was looking for feedback from the board. 

Calamar said that GCEDC's attorney told the board that although the project wasn't manufacturing, "This project is authorized and allowable under IDA law."

At a March 6 meeting, CEO Steve Hyde reportedly informed the board that GCEDC had participated in housing projects previously, such as the Manor House and the Jerome Center.

The petition claims that Masse continued to work closely with Calamar officials on project plans and proposed tax incentives in the following months.

At a staff meeting in June, the petition states, Masse gave every indication the project would get a green light.

"At no time during this meeting did Mr. Masse state that the Agency had concerns about the Project or was unwilling to support the Project," the document states. "To the contrary, all statements made and actions taken by Mr. Masse indicated that the Project had the support of the GCEDC, justifying the significant investment of time and resources by Calamar."

The project was put before the board July 10 for approval of a public hearing.

The board voted to deny Calamar a public hearing on the project and Calamar is accusing two board members of a conflict of interest on the project.

Pete Zeliff (mistakenly named "Paul" in the petition,) and Ray Cianfrini both spoke against tax breaks for the project and voted against setting a public hearing.

The conflict arises, according to Calamar, because Zeliff is building a single-family residential project on East Main Road, Batavia, and Cianfrini, also chair of the Genesee County Legislature, sometimes provides legal counsel to Zeliff.

"The agency's mission is to further the development of industries and create jobs and that housing should stand on its own," Calamar quotes Zeliff as saying.

Calamar claims to have been unaware of Zeliff's development interests at the time of the meeting.

To further emphasize the alleged conflict, Calamar quotes from a story published in The Batavian where Zeliff denies there is a conflict.

In that story, Zeliff noted that the two projects are completely different and do not overlap intended housing markets. Calamar is building apartments for seniors. Zeliff is building houses for families.

The petition states, "Zeliff also acknowledged that competition was an issue influencing his vote," and goes on to say that Zeliff voted against the project to protect his own Oakwood Estates development. 

The characterization of what Zeliff told The Batavian is misleading. Zeliff drew the distinction between his own project and said he didn't see Calamar's project as competitive with it, but noted that another senior housing project, Clinton Crossing, has proceeded without government aid and has a waiting list of residents trying to move in. He said the Calamar project, if it received assistance, would have an unfair, subsidized advantage over Clinton Crossing.

Zeliff does not have a financial interest in Clinton Crossing.

The suit also criticizes Zeliff and Cianfrini for misstating how many jobs the project would create. 

Rather than just two jobs, Calamar claims the project would add 4.5 full-time equivalent non-employee jobs (contractors) as well as dozens of construction jobs during the project development.

The rejection, the petition states, was taken "without any findings or reasoning," which Calamar claims is required if the board is going against either past practices or policy.

Calamar is also critical of GCEDC for having a vague Uniform Tax Exemption Policy (UTEP), and notes that the state's comptroller's office had the same criticism of GCEDC earlier this year.

"The Comptroller found that this failure to have formalized evaluation criteria resulted in an inconsistent approach by the Board and a lack of objective evaluation of proposed projects," the petition states.

Calamar claims to have received tax incentives for similar projects in Niagara County, Erie County, Stueben County and Auburn.

There is a great need in Genesee County for such a project, Calamar tells the court. According to the 2010 Census, 28.5 percent of the local population is 55 or older and 23.7 percent is 40 to 55.

The Genesee County Housing Focus Group's strategic plan states, according to Calamar, "senior apartment shortages have been noted as a major concern."

Calamar's project would be marketed to people 55 and older with an annual income of $35,000 to $45,000, and residents would only be those not receiving government housing assistance.

The 117,000-square-foot facility would offer one and two bedroom apartments with rents from $805 to $1,050 per month. There would be a full-time director on site, with events, educational seminars, meals, exercise instruction, home helpers, cleaning services, health system services and transportation offered.

The 33 acres of the proposed project is currently assessed at $166,400. The anticipated increase in assessed value is not stated, but the total value of the PILOT would be $854,580, with Calamar paying 20 percent of the taxes on the increase in assessed value in the first year. Calamar would pay an increasing share of taxes up to 100 percent by year 11.

Other proposed tax abatements are $454,744 on sales tax for materials and an exemption of the $120,000 mortgage tax on the purchase of the property.

The suit claims both Masse and GCEDC attorney Russ Gaenzle were shocked by the board's vote and exhibits include copies of their e-mails.

No hearing date has been set yet for the suit.

A 23-year-old Elba man was taken into custody this afternoon following a pair of traffic collisions and a bit of a police pursuit from Bank Street to Main Street in front of Tim Horton's.

Joseph J. Zambito has been charged with driving while ability impaired by drugs, according to Sgt. Dan Coffey, Batavia PD.

Sometime around 2:30 p.m. police received a report of a vehicle striking a car on Bank Street just within city limits. The vehicle was spotted on Bank Street, Coffey said, and officers attempted to make a traffic stop, but the car continued, turning right onto Main Street.

The vehicle struck another car west of Jefferson Avenue, Coffey said, and then patrol vehicles were able to box in the silver sedan and stop it in front of Tim Horton's.

Following a short investigation, the driver was taken into custody.

Zambito is also being charged with several traffic violations, Coffey said.

Reader submitted photos.

Law enforcement is on scene at the Lewiston Road overpass over the Thruway for "numerous motor-vehicle accidents."

Town of Batavia Fire Police requested to the scene for traffic control.

No injuries reported.

UPDATE 5:55 p.m.: Southbound traffic is completely blocked.

UPDATE 6:07 p.m.: Town of Batavia Fire Police now requested to the Route 98 overpass to assist law enforcement.

In Western New York we love our BBQ, so it's not surprising that another Genesee County resident is finding his own success with slow-cooked ribs and his own sauce.

Mike Swiatowy has been running his own catering business for years. About five years ago, he added BBQ and this year, he said, the business has really taken off. So much that his wife, Kristi, gave up her hair and nail business that she's run for 25 years.

Three weeks ago, Swiatowy came into a new location for his ribs, pulled pork, brisket and chicken -- the Willow Bend Inn.

After serving wings and beef on weck at the Polish Falcon's Club for a few years, he wanted to expand and the partnership with the Willow Bend Inn has given him the venue to do that.

"It's worked out great," Swiatowy said. "I think it's a great atmosphere for BBQ."

We tried the ribs, pulled pork and beef brisket with beans, slaw and mac and cheese. We loved the meal. The meat is as it should be -- fall-off-the-bone tender, flavorful and moist. The sauce is both sweet and savory.

Swy's BBQ also offers chicken, pulled chicken, hickory-smoked chicken wings and traditional chicken wings.

There's also a full line of catering available. For more information, visit the Web site. Swy's is also available for fundraisers.

If you can't wait until Wednesday to try the BBQ at Willow Bend, Swy's is participating in the Holiday Festival on Saturday at Batavia High School from 10 a.m. until 4 p.m.

Press release:

More than 140 baskets are featured at the fourth Annual Genesee ARC Chili & Chowder Fest and Basket Raffle on Saturday (Nov. 15) at the Genesee ARC Community Center. 

The event begins at 10 a.m. and winners will be drawn starting at 1:30 p.m. Community members who already have Saturday plans, can get in on the fun because for a second year in a row the Center at 38 Woodrow Road will be open from 4:30 p.m. – 6:30 p.m.  Friday for ticket-only sales. 

Event Chair Shelley Falitico said this was wildly popular last year.

“It’s a wonderful opportunity for people to stop by after work and take a chance on some great baskets donated by ARC Staff, families and local businesses.” 

There is no separate admission charge. Ticket chances for regular baskets are $10 for 25 chances or $25 for 75 chances. Specialty baskets, valued at $50 or more, cost $10 for 15 chances. This year’s grand prize is a spectacular cleaning package, valued at $475, featuring a vacuum cleaner and a wheeled trash tote filled with of every type of cleaning supply imaginable. 

Tickets for the grand prize are $2 each; 3 for $5 or 8 chances for $10.

During the event on Saturday, there will be a variety of chili (red, white and vegetarian), Manhattan clam chowder and chicken noodle soup for sale along with grilled cheese sandwiches. A bake sale is also featured.

Lewis & Lewis has transformed from a solo practice 70 years ago into one of Western New York’s largest combined workers’ compensation and personal injury firms. Lewis & Lewis’s transformation has been an exciting journey that has included the expansion to five offices, with 15 skilled attorneys who are passionate about putting their clients’ needs and rights at the forefront. For more information visit www.lewislaw.com.

This fall, there have been a few big trees coming down on the Southside. Crews were on Jackson Street near Morton Avenue today taking down a pair of big trees.

City crews were on South Main this afternoon picking up the fall leaves of residents. The city's leaf detail continues until Nov. 21. For more information, click here.

A group of local residents are concerned that they're seeing a rise in homelessness in Genesee County and are trying to pull resources together to address the issue.

Genesee Community Warming Center Coalition wants to find a location for a shelter and showers, said James Rocco Soccio, one of the group's members.

Soccio said on any given day there may be from two to 15 people in Genesee County who don't have proper shelter.

Regardless of how they got in that situation, he would like to see the community come together to provide assistance.

A shower and a shave could help somebody get a job. Food will keep people, especially children, from going hungry. Shelter might save a life.

Winter's coming on and snow and cold are just days away.

We spoke with Soccio standing in the midst of a homeless encampment in Batavia (we agreed not to disclose the location to help avoid any sort of harassment of the occupants). 

There were no people at the camp while we were there this afternoon, but it's clear the camp is currently occupied. There was food on shelves, clothing hung neatly on a line in a tent, a bike leaning against a tree and a very friendly cat wandering about.

There is also a tent set off from the main group of tents, giving the impression it might serve as a latrine. There's also a covered refuse pile nearby. It's clear the camp has been in use for an extended period of time.

Soccio said Pastor Paul Ohlson from Care-A-Van Ministries had visited the camp previously delivering food. Sometimes there's one person there. Sometimes there are four or five.

It's Soccio's impression that the camp is shared by a revolving set of people in need of shelter.

It was the first time Soccio had seen it personally and he was rather taken aback.

"It's unbelievable until you see it," Soccio said. "I'm shocked that this is happening here Genesee County. We need to get something together so they're not out there committing crimes to get three hots and a cot. That's the truth of it all."

There is a Facebook group for the coalition. Also, the group is trying to raise money with GoFundMe.com. Finally, the group meets at 3 p.m. every Wednesday. Tomorrow it meets at the Salvation Army, 529 E.Main St., Batavia.

City fire and Mercy medics are responding to State Street for a report of a CO detector activation with ill affects for the occupants. A female, now across the street, says she has a headache. Her children are no longer inside, although an elderly man is believed to still be in there.

Shane Irwin Crosby, 38, of North Bergen Road, Bergen, is charged with manufacturing an illicit alcoholic beverage, a Class E felony. Crosby was found to have an illegal moonshine still during a visit by probation officers at 8:40 a.m., Oct. 26. Deputy John Weis was dispatched to investigate. Crosby is accused of operating a still without being a properly licensed distiller. He was issued an appearance ticket.

Dale S. Berglund, 39, of West Allis, Wisc., is charged with felony DWI. Berglund was stopped at 8:45 p.m. Sunday in the Village of Corfu for allegedly driving 51 in a 35 mph zone.

Willie Marshall, 61, of Batavia, is charged with forcible touching. Marshall was arrested following an investigation by the State Police Bureau of Criminal Investigation into a complaint that he inappropriately touched a 13-year-old girl while staying with her mother at a local motel.

Brett Nelson Magoffin, 39, Genesee Street, Pembroke, is charged with DWI, driving with a BAC of .18 or greater and failure to keep right. Magoffin was stopped at 5:27 p.m. Sunday on Read Road, Pembroke, by Deputy Patrick Reeves.

Macayla T. Brown, 18, Ja'Nelle A. Smith, 18, and a 17-year-old, all of 8170 Batavia Stafford Townline Road, are charged with petit larceny. The trio are accused of stealing $366 in merchandise from Walmart.

Kaylee Louise Middaugh, 19, of Little John Road, Belfast, is charged with petit larceny. Middaugh is accused of pushing a cart full of merchandise out of Walmart without paying for the items.

Eric Vernon Biscaro, 57, of Ellicott Street Road, Batavia, is charged with assault ,3rd. Biscaro is accused of hurting another person during a domestic incident.

A fire this morning at 8 Wood S., Batavia, caused $35,000 in damage to the structure and building contents, according to the Batavia Fire Department.

The fire was caused by an electrical issue and started in the kitchen.

A second-floor resident climbed onto the roof of an alcove on the first floor and was rescued by a city firefighter.

A dog that barked to alert residents to the fire perished as a result of smoke in the residence.

The incident commander was Mark Mikolajczyk.

(initial post)

Photo by Frank Capuano.

City fire is responding to 174 Ross St., lower apt., for the odor of something electrical burning inside a wall.

UPDATE 11:07 a.m.: A city code enforcement officer is called in.

Smoke is reportedly coming from the house at 8 Wood St., located between Jackson Street and Pringle Avenue. Smoke is coming from the attic, too. City police are on scene and city fire is responding.

UPDATE 7 a.m.: The incident has gone to a second alarm.

UPDATE 7:05 a.m. Alexander's Fast Team and Elba fire is called to the scene. Mercy medics are requested for an evaluation. Town of Batavia fire is called to fill in at the city fire hall on Evans Street. Also, D "ESU 2" is called to the scene along with all off-duty platoons.

UPDATE 7:14 a.m.: Command reports fire knocked down. Overhaul started. The blaze is believed to have started in the kitchen.

UPDATE 7:27 a.m.: Alexander is returning to quarters.

UPDATE 7:50 a.m. (by Howard, info and photo from Alecia Kaus/Video News Service): A resident who lived on the second floor was rescued from the roof. A dog died. The fire started in the kitchen. Two people downstairs were evacuated. The second-floor resident is being evaluated in an ambulance on scene.

UPDATE (info from Alecia Kaus/Video News Service): the dog that perished had alerted residents to the fire. 

Beniluis Ruiz is indicted for first-degree sexual abuse, a Class D felony, for allegedly subjecting another person to sexual contact in the Spring of 2013 when that person was physically helpless and therefore incapable of consent.

All counts stem from alleged incidents in the Town of Pavilion.

• In count two, he is accused of criminal sexual act, 3rd, a Class E felony, for allegedly engaging in oral sexual conduct with a person less than 17 years old in December 2013 when he was age 21 or older;
• In count three, he is indicted for third-degree rape, a Class E felony. It is alleged that in December 2013 he engaged in sexual intercourse with a person under 17 years old and he was age 21 or older;
• In count four, he is indicted for criminal sexual act, 3rd, a Class E felony, for allegedly engaging in oral sexual conduct on a second occasion with a person less that 17 years old in December 2013 while he was age 21 or older;
• In count five, Ruiz is accused of criminal sexual act, 3rd, a Class E felony, for allegedly engaging in oral sexual conduct on Jan. 5 with a person under age 17 when he was 21 or older;
• In count six, he is accused of criminal sexual act, 3rd, a Class E felony, for allegedly engaging in oral sexual conduct on Feb. 10 with a person under age 17 while he was 21 years old or older;
• In count seven, he is indicted for third-degree criminal sexual act, a Class E felony, for allegedly engaging in oral sexual conduct on a second occasion on Feb. 10 with a person under age 17 while he was age 21 or older;
• In count eight, Ruiz is indicted for third-degree rape, a Class E felony, for engaging in sexual intercourse on Feb. 10 with a person under age 17 while he was age 21 or older;
• In count nine, he is accused of endangering the welfare of a child, a Class A misdemeanor, for allegedly knowingly acting on Jan. 4-5 in a manner likely to be injurious to the physical, mental or moral welfare of a child under age 17;
• In count 10, he is accused of the same actions as in count nine, but involving a second child under age 17;
• In count 11, Ruiz is indicted for unlawfully dealing with a child, 1st, a Class A misdemeanor, for on Jan. 4-5 allegedly giving or selling or causing to be given or sold, alcoholic beverage(s) to a person under age 21;
• In count 12, he is accused of the same crime as count 11, but involving a second person under age 21.

Matthew D. Marvin and Brenden R. Jones are accused of fourth-degree grand larceny, a Class E felony. It is alleged that on June 20 in the Town of Batavia, they stole property valued in excess of $1,000, including baby monitors, K-9 Advantix products, Braun electric razors, Oral-B electric toothbrush, computer software, router, "spyder" wire and other products valued at $2,928.84 from Walmart. In count two, they are accused of fifth-degree conspiracy, a Class A misdemeanor, for allegedly intending to commit a felony on June 20. They allegedly agreed with one or more persons to engage in this criminal conduct.

Christopher M. Colantonio is indicted for criminal possession of a forged instrument, 2nd, a Class D felony. It is alleged that on April 3 at a bank in the City of Batavia, he cashed a bogus check for $100, which was made payable to him and taken from another person's account. In count two of the indictment, he is accused of petit larceny, a Class A misdemeanor, for allegedly stealing $100 by means of the aforementioned forged check.

Juanita Jackson, 58, of Ellicott Street, Batavia, is charged with juvenile curfew violation. Jackson is the legal guardian of a youth who was allegedly found in a public place within the city past juvenile curfew time. The youth was allegedly involved in criminal mischief, larceny from a vehicle and possession of stolen property at 10:50 p.m., Oct. 29. The youth fled from police and was later located hiding in St. Joseph Cemetery by K-9 Destro.

Reginald C. Sampson, 48, of Holland Avenue, is charged with resisting arrest, obstructing governmental administration, 2nd, and disorderly conduct. Sampson is accused of refusing to comply with officers requests during an investigation being conducted at his residence. Sampson reportedly became irate and allegedly began yelling obscenities, disrupting the peace of the neighborhood and interfering with the investigation. When told he was under arrest, Sampson allegedly became combative with officers. Williams was jailed following arraignment. (Previous report).

Deavin L.A. Herman, 20, of Caroline Street, Albion, was arrested on a warrant for alleged failure to appear on a petit larceny charge. Herman was jailed on $500 bail.

Olivia M. Lyons, 21, of Judge Road, Basom, is charged with petit larceny. Lyons was arrested by Batavia PD following an investigation into complaints of numerous thefts from UMMC staff. Lyons is accused of stealing mobile phones Wednesday evening.

Kenneth M. Gray, 22, of Myrtle Street, Le Roy, is charged with acting in a manner likely to be injurious to a child less than 17 and harassment, 2nd. Gray was arrested on a warrant out of City Court related to an alleged incident Oct. 20.

Nathan J. Pascuzzo, 23, of Ellicott Street Road, Pavilion, is charged with DWI. Pascuzzo was stopped at 5:10 a.m., Nov. 2, after officer Peter Flanagan observed a vehicle on Ellicott Street driving on two flat tires.

Heather L. Draper, 25, of East Avenue, Batavia, is charged trespass. Draper is accused of entering a store she had been banned from entering.

Kelsey Anne Sanders, 27, of Hutchins Street, Batavia, was arrested on a warrant for alleged failure to pay a fine on a disorderly conduct charge. Sanders was released on $125 bail.

Joseph W. Freeman, 30, of East Avenue, Batavia, is charged with harassment, 2nd. Freeman allegedly punched another person in the face during a domestic argument at 4:45 a.m., Monday.

Crystal L. Lawrence, 30, of Main Street, of Batavia, was arrested on a warrant for alleged failure to appear.

Didier Asne Antoine, 20, of Jackson Street, Batavia, is charged with criminal trespass, 3rd. Antoine was allegedly on College Village property after being banned.

Robert Ray Davis, 53, of Main Road, Pembroke, is charged with unlawful dealing with a child. Davis allegedly hosted an underage drinking party at his residence.

Elizabeth Michelle Grattan, 24, of Maple Street, Batavia, is charged with burglary, 3rd, and petit larceny. Grattan is accused of entering Walmart after being banned for life from the store. She allegedly stole $110 worth of merchandise.

A fire is reported at the Walmart Super Center on Veterans Memorial Drive. The building has been evacuated. Flames are visible on the wall in the meat department of the food store. Town of Batavia Fire Department is responding.

UPDATE 7:52 a.m.: A fire is confirmed inside the meat cooler. Mutual aid from Oakfield fire is requested along with all available manpower from Town of Batavia.

UPDATE 8:06 a.m.: Oakfield is told to continue non-emergency with a fill-in unit for Town of Batavia's fire hall.

UPDATE 8:53 a.m.: Fire is out. A Health Department rep inspected the meat cooler and cleared the scene.