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As attorneys for both sides gear up for the possibility of a jury trial to decide former employee Michael Nolan’s civil lawsuit against Western Regional Off-Track Betting Corp., and its president and board chairman, the longtime WROTB director representing Genesee County says he doesn’t see “any merit” in the case.

“I don’t believe there is any merit in it,” Richard Siebert said on Wednesday, emphasizing that he was not at liberty to talk about specifics. “And I just don’t quite understand why the lawsuit seems to be singling out our CEO, Henry Wojtaszek, and our chairman of the board, Richard Bianchi. It should be filed just against the corporation, that’s all I will say.”

Siebert, an OTB director for 28 years, did offer a bit more, however, noting that the board has been expecting this suit to be filed.

“We knew that his (Nolan’s) attorney has been trying to threaten all types of lawsuits if we didn’t make some compromise … but all I can say is to my knowledge – and I am knowledgeable of the situation, there is no basis for this lawsuit,” he said.

“It will take a couple years for the courts to settle it out, but there’s no basis in my mind, whatsoever, and I don’t think the corporation is going to suffer from it.”

Nolan, the public benefit company’s former chief operating officer, was fired from his position last December. He is seeking $14.5 million in damages, according to a 23-page filing by his lawyer, Steven M. Cohen of HoganWillig, PLLC, of Buffalo, on Aug. 12 in U.S. District Court Western District of New York.

The suit names WROTB as well as Bianchi and Wojtaszek (both as individuals and in their capacities with the corporation) as defendants.

It contends that Nolan was ostracized and kept out of OTB matters since April 2019 for speaking to federal and state investigators about the corporation’s practices, including offering gold-plated health insurance for board members with political ties, misuse of professional sports tickets and luxury boxes, and awarding of contracts “to politically-connected entities associated with WROTB.”

Cohen is seeking $14.5 million in compensatory damages for his client, plus the reinstatement of Nolan to his former COO position and of full fringe benefits and seniority rights, along with damages sustained due to the violation including, without limitation, the compensation for lost wages, benefits and other remuneration, and payment of all reasonable costs, disbursements, and attorney's fees.

Responding today to an email from The Batavian, Cohen said Nolan has been punished for being honest in his replies to investigators looking into possible wrongdoing at WROTB.

“My client has been through an ordeal, all for telling the truth to the law enforcement agencies who are investigating corruption at the WROTB,” he said. “My client neither commenced the investigation, nor initiated contact with the authorities.  He is not the only one to speak with the FBI, New York State Comptroller, U.S. Attorney or (NYS) Gaming Commission.”

Cohen said that Nolan “may be the only one who disclosed to the board exactly what he told the authorities, which put them in a panic.”

“The conduct of the defendants has been despicable and we are looking forward to presenting our evidence to the judge.”

The attorney for WROTB, Daniel C. Oliverio of Hodgson Russ, Buffalo, spoke to The Batavian on Wednesday -- calling Nolan’s suit “a political hit job that’s going to fail.”

“OTB commissioned an independent lawyer to do an investigation (Terrence Connors of Connors LLP, Buffalo) – not our firm,” Oliverio said. “He interviewed I think 46 witness and the report is hundreds of pages (actually 380 pages), including Mr. Nolan himself twice for hours. He didn’t come up with one shred of evidence to support the allegations.”

Oliverio said that Nolan changed his story repeatedly.

“We examined Mr. Nolan under oath, in what is called a 50-H proceeding as we’re entitled to that per New York law,” he said. “We examined him twice under oath for several hours, and he couldn’t substantiate any of his allegations; he backtracked.”

Oliverio categorized the suit as “political nonsense from an employee who was disgruntled, and we believe it was an attempt to upset Mr. Wojtaszek and the board.”

“And, by the way, OTB has been doing very well through the pandemic and now afterwards with their various ventures. So, we think this is nothing more than a political hit job that’s going to fail.”

Going forward, Oliverio said once his clients are served, he likely will have an opportunity to make a motion to dismiss the case outright. Should that not happen, it will enter the discovery phase where depositions will be taken again, including a statement from Nolan. From there, the court could grant a summary judgment or call for a jury trial.

“Either way, it’s fine with us,” he said, adding that the court will set a schedule for him to respond, usually around 30 days. “A court is going to adjudicate this -- not Mr. Nolan or his lawyers in press conferences -- according to a jury."

Previously:  Lawsuit seeks $14.5 million for former WROTB officer

Catco Construction of Alden is the apparent low bidder to be the general contractor for the $4.3 million Park Road Reconstruction Project.

Town of Batavia Engineer Steve Mountain reported a “favorable” bidding process, in which 11 applications were submitted to take the lead role in an extensive rehabilitation of the road from Lewiston Road (Route 63) to Oak Street (Route 98).

“We will be looking to finalize the awarding of the contract over the next month,” Mountain said, adding that construction could start this fall depending upon the availability of materials. “We’ll be doing the utility work first and then the road work.”

The project consists of the following:

• Installation of new pavement, curbs and curbing from Lewiston Road to Richmond Avenue with sidewalks on both sides of Park Road;
• Overlaying of pavement and installation of sidewalks on one side of the road from Richmond Avenue to Route 98;
• Installation of new water lines and street lights on Park Road between Route 63 and Richmond Avenue.

Funding from New York State will cover most of the cost, except for the $900,000 it will take to replace the water main. The Batavia Town Board recently passed a resolution calling for the issuance of serial bonds not to exceed $975,190, offset by any federal, state, county and/or local funds received.

Western Regional Off-Track Betting Corp. has agreed to pay up to $395,000 for additional property enhancements near Batavia Downs Gaming.

On another front, Batavia Town Supervisor Gregory Post said highway crews are about 10 construction days away from completing culvert pipe on South Main Street Road at the intersection of Wortendyke Road – a project that has closed South Main Street Road to motorists for several weeks.

“We should be on scheduled to open it to traffic prior to the school bus season,” Post said.

Also, the Batavia Town Board on Wednesday night approved a resolution to contract with the Clark Patterson Lee engineering firm to prepare a report and provide other information for the Pratt Road Sewer Study. The $24,000 cost of the study is being paid for by an Engineering Planning Grant.

One after another over the course of an hour and forty minute public hearing tonight, residents of East Avenue, Poplar Lane, Orchard Drive and South Street in the Village of Le Roy took the microphone – letting Batavia developer Eric Biscaro know how much they love their “jewel” of a neighborhood.

Biscaro, owner of Armor Building Supply, stood his ground, though, responding that his proposal to build 30 duplex units for tenants age 50 and over on a 20-acre parcel off East Avenue and open up eight single-family home building lots by extending the street would be a good thing for the community – creating more housing opportunities for older people and adding to the tax base.

The setting for the public hearing called by Village Mayor Greg Rogers was Memorial Auditorium at Trigon Park, where about 85 people – most of them from the area where Biscaro hopes to build – showed up either to voice their opinions or to hear what others had to say.

The project has been on the table for several months, with Biscaro proposing his Le Roy version of Batavia’s Clinton Crossings Adult Community to the Genesee County Planning Board in early April.

Since then, it has encountered considerable opposition, primarily from residents near the identified location who fear a substantial increase in traffic along East Avenue – as currently that is the only way to access the proposed development – and are concerned about stormwater runoff from the complex.

Village board members heard more of the same tonight, as well as impassioned pleas from longtime homeowners to put the complex somewhere in the Town of Le Roy as to not disturb their peaceful setting.

Maurice Turner of 24 East Ave., a transplanted Rochesterian who said he and his wife purchased the home about 21 years ago, may have summed up the neighborhood feeling the best when he addressed the crowd about two-thirds of the way through the public hearing.

“When I looked at this place, I said, ‘This is a jewel … this is sweet,’” he said. “One way in, one way out, and that particular day, I didn’t see a lot of traffic. But what I did see … is anybody that can’t see this must be a fool … I’m saying that because of the passion in my heart that I have for the area that I live in.”

Turner said he thinks the Biscaro project – which would need a zoning change from Residential to Planned Unit Development – would be best suited for the town, but if it had to be in the village, he suggested that village officials “think outside of the box” by putting in an access road from Asbury Road, and leave East Avenue and the surrounding streets as is.

Mayor Rogers opened the meeting by outlining the Village Board’s reasoning for considering the project, stating that the dwellings would generate needed tax money and fill the need for housing for seniors.

He said the village was committed to spending up to $1 million on improvements to East Avenue, citing a 1988 resolution that authorizes the village to fund projects that would enhance future growth.

Biscaro followed with a quick overview of the project, using a video of the set-up at Clinton Crossings and photos featuring trees and other buffering around the Le Roy parcel.

He said each lot of the senior development would measure 100- by 150-feet, and could be accessed by a main exit off East Avenue toward the center of the parcel and, in an emergency situation, from South Avenue onto East Avenue.

Twenty-four of the 30 one-floor units would measure 1,200 square feet plus a one-car garage and six of them would measure 1,450 square feet with a two-car garage.

He stressed that the development would not be visible from the south, north and west as long as the trees are there (which he promised to make sure they are retained), and about 40 percent of it could be seen from Asbury Road to the east.

Biscaro also spoke about the success of the Clinton Crossings complex, noting that residents there and those who live along the adjacent Stringham Drive co-exist without any issues.

Although Rogers set ground rules, asking for an orderly process to accommodate those who wished to speak, the public comment session began on an emotionally-charged note when Tom Condidorio, at a high decibel level, said that the proposal to put in a PUD “is not the future of our village.”

“If anybody here thinks it is, stand up and tell me please. Any LeRoyan in this village, (if) you think this belongs here, stand up and tell me!” he shouted.

He then contended that the Fussells, who own the land to be purchased by Biscaro, will be making a lot of money (a notion later challenged by E. Robert Fussell and his daughter, Anna Sorensen, who said they have been paying taxes on that land for many years).

Condidorio, an East Avenue resident, went on for a couple minutes, mentioning that he was “passionate” about the subject, before Rogers stepped in to keep the situation from escalating.

About 16 more people spoke after that (most, but not all against the project) before Rogers wrapped things up. He said the board would not be taking any action tonight, but would resume the public hearing at its Sept. 15 meeting.

“We want to give it proper thought and follow up ... and do our due diligence,” he said, advising that the board will provide more information about traffic patterns in the village and continue to obtain data about water runoff.

Previously, Biscaro said that he intends to ensure that no more water will run off of the property than what takes place now.

ADDITIONAL COMMENTS FROM THE PUBLIC HEARING

Updated: 8 a.m., 8/19

• Rogers, on putting the development in the Town of Le Roy: "All of the building is going on in the town. The farmers don't want to lose that good, valuable farmland. And the biggest consideration ... of people is in the village." To which Condidorio replied, "Then, let's make those homes; let's make it residential (not rental)."
• Biscaro, on the possibility of receiving tax incentives (from the Genesee County Economic Development Center): "I don't know yet. If we get one, it will be the first one in the county ... for residential building. And the reason is the 2018 housing study for Genesee County is begging for housing like this." To which Rogers replied, "We won't support a PILOT (Payment in Lieu of Taxes) that comes out of ... the taxpayers' pockets."
• Sorensen, on the need for senior housing: "People need housing. These are beautiful places. I heard originally that they were horrible ... so I went out and looked at them. I disagree."
• Rene Robinson, Poplar Lane, on demographics in Le Roy: "(Per 2018 census) over 55 is the smallest growing population, the lowest population of LeRoyans that we have. So, to focus an entire development on over 55 and then state you are going to use taxpayer money because it's earmarked for future growth of residents is really not reasonable." Biscaro's response was that older people would be able to stay in Le Roy because of this type of housing, and by selling their homes, it would open up housing for younger people.
• Barb Anchor Elliott, East Avenue, on safety pertaining to traffic: "The only access to getting into this development is going to be East Avenue ... you can park on the east side of East Avenue, and if you park on the east side, there really isn't room for two cars to get by. So, I can not see how construction vehicles and all of that can come down East Avenue and maintain the safety." Other speakers agreed with her assessment, adding that the traffic is already heavy in the morning when school is in session. She added that if the (Great Lakes) cheese factory doesn't go through on Route 19, north of the village, that would be a good place for the development.
• Biscaro, on traffic flow at Clinton Crossings: "There's nowhere that traffic. Out of our 40 units, five have no vehicle, and only two units that have two vehicles. Even though that place is 55 and over, the average age is 75, 76 years old."
• Jackie Whiting, on Village Board's responsibilities: "Whether I agree or disagree is neither here nor there. Their job is to investigate opportunities for the village, looking into all possibilities. They may say yes, they may say no ... whether I agree or disagree, I thank you guys for your time and effort ..."
• Florence Condidorio, East Avenue, asked why professional environmental studies weren't done beforehand. Rogers replied that the flood plain and stormwater plan are the developer's responsibility, and the Village Board's responsibility is to review those plans (in this case utlizing Clark Patterson Lee engineering firm). Biscaro said he contracted with an engineer "and there will be less water now than is coming off currently."
• Dwight Kanyuk, attorney representing Condidorios, on the need to have State Environmental Quality Review Assessments: "It's up to this board under SEQR whether there may be a significant adverse impact of their project on the environment." He said it doesn't appear that the correct procedures were followed in accordance with Type 1 SEQR regulations.
• Ron Pangrazio, East Avenue, on water problems that prohibited further development of that street: "(After investigation), they told us, 'We're not giving you any state aid to put in those streets -- it's too much money; it's too wet. They turned it down, and we went someplace else."  He said water problem needs to be corrected, and the development "is putting the cart before the horse."
• E. Robert Fussell, property owner, in response to Pangrazio: Stating that the homes on East Avenue were developed by his father, he said, "That (water) is not the reason (more homes weren't built). The reason is the village refused, and this was decades ago, a lift station to that my father could make any money at all developing land past Pangrazio's and Condidorio's houses on East Avenue." He said he believes people should be able to live in the village, and the Biscaro proposal presents an opportunity for older people to do that. 

Photo at top: Maurice Turner presents his views about the proposed housing development off East Avenue in the Village of Le Roy. Behind him is Eric Biscaro. Photo at bottom: Twenty acre parcel that Biscaro is hoping to develop. Photos by Mike Pettinella.

Previously: Rogers: Housing project in the Village of Le Roy hinges on science-based stormwater retention plan

Previously: Developer, mayor address criticism; stage is set for May 19 public hearing on Le Roy senior housing development

A Summit Street entrance and exit to the proposed Healthy Living Campus is off the table.

That’s the word from Duane Preston, City of Batavia Planning & Development Committee chair, following Tuesday night’s monthly meeting at the City Centre Council Board Room.

Consultants and architects assigned to the joint venture of United Memorial Medical Center (Rochester Regional Health) and the Genesee Area Family YMCA continued their presentation of the $30 million Downtown Revitalization Initiative project, looking to address concerns from their appearance in July.

At the forefront was the idea of an access from Summit Street on a parcel owned by the hospital between two houses on the west side of the street. Developers contended that it was needed to ensure proper traffic flow; planners, however, disagreed.

“They (project representatives) were kind of hesitant but we all agreed to take the Summit Street access off the plan,” Preston said. “Nobody on the board felt that it was needed at this point and my thing is that it is something that could be put in at a later date if we had to.”

As it stands now, vehicles will be able to enter the campus via Bank Street, Washington Avenue or Wiard Street.

Preston said two residents of Summit Street spoke against the access, mentioning increased traffic on the street and annoyance of vehicle lights in the backyard or side of their house.

The PDC also had hoped developers would expand the amount of green space along the east side of the GO ART! building at the corner of Main and Bank streets, removing some parking spaces in the process.

Consultant David Ciurzynski said that has been addressed, making that area more of a park-like setting.

Preston said he expects more green space there, but emphasized that developers still believe all parking lots in the plan are necessary.

No official action on the site plan was taken, said Preston, adding that the State Environmental Quality Review will be conducted now that the public hearing is over.

“They’re going to throw us another plan next month, and we’re going to go from there,” he said. “We all agree that the building is great. We don’t want to pinch this whole thing … but we’ve spent more time on the parking lot than we have on the building. Still, we have to do what’s best for the residents of Batavia.”

In other action, planners approved downtown design reviews for a new façade, lighting and signage on one side of the Batavia Tailors & Cleaners building at 33-39 Ellicott St., along with a new rooftop heating and air conditioning unit, and for renovations at Fieldstone Private Wealth, 219 East Main St.

Photo: The City of Batavia Planning & Development Committee has decided against allowing a Summit Street access point to the proposed Healthy Living Campus.  Photo above was taken from Wiard Street, looking east to Summit. Photo by Mike Pettinella.

The Batavia Town Planning Board wants to see “a big idea” before passing judgment on developers David and Katie Ficarella’s proposal to construct what they are calling the Hickory Ridge Estates senior housing complex on the north side of Route 33 (Pearl Street Road), just over a mile west of the City of Batavia limits.

The Ficarellas, along with engineer John Schenne of Schenne & Associates, East Aurora, and general contractor Frank Lazarus of Lazarus Industries, Buffalo, appeared at the board’s monthly meeting on Tuesday night to re-introduce their plan, which is estimated to cost $17 million upon full buildout.

The Lovers Lane Road couple, about 4 ½ years ago, presented a somewhat different idea - a 110-unit senior residential site, working with Calamar Enterprises of Wheatfield.  That failed to materialize, however, and they are back with a new plan that they hope to build in three phases.

While David Ficarella said he hoped the board would review the site plan of Phase 1 at this time – and deal with future phases later, Planning Board Chair Kathy Jasinski and Town Engineer Steve Mountain advised that the project needed to be submitted in its entirety.

“You can make it smaller if you want to later, but it’s better to do it all as a big idea,” Jasinski said.

Mountain concurred, stating that “the biggest thing that we need in order for the planning board to do a SEQR (State Environmental Quality Review) is exactly what this project and any future phases entail.”

PRESENT THE PROJECT AS A WHOLE

“The site plan … is more than sufficient to bring to the planning board. What we need now is ‘What’s the concept on Phase 1? Phase 2, and where’s the off-site sewer going,” he added. “Any improvements that are part of the project now or in the future have to be identified so they can look at the project as a whole under the environmental review.”

Town Building Inspector Dan Lang said he has received Ficarella’s application, but won’t be able to forward it to the Genesee County Planning Board until the entire subdivision process is complete.

Mountain noted that the planning board needs to see where public roads will be put in, the location of private roadway, plans for private sewer and connecting to public sewer infrastructure, along with information about traffic flow.

The Ficarellas said that Phase 1 will consist of the construction of 40 duplex rentals for tenants age 55 and over on 20.629 acres, located across from Donahue Road, and stretching west along the state highway. All of the units will have two bedrooms and two bathrooms.

Phase 2 calls for an additional 10 duplex rental units on 7 acres just north of the first phase, beyond the National Grid right-of-way that has been identified as a future extension of the Ellicott Trail.

Phase 3 is construction of either rental or custom build homes on 40 acres – extending Donahue Road to the west end of Edgewood Drive, which is part of the Meadowbrook Estates development.

WETLAND MITIGATION REQUIRED

Schenne, who said he designed the Meadowbrook Estates subdivision for (the late) Gary McWethy about 15 years ago, explained that he is working with the Army Corps of Engineers to obtain wetlands permits as about 25 percent of the Phase 1 parcel is wetlands.

Currently, a pond exists on the site and two other ponds for stormwater will be created as required by state law to get a stormwater permit, he noted.

“We have to collect the stormwater, detain it, treat it and release it,” he said. “And we’re not allowed to do that in the wetlands.”

He said the Phase 1 site will drain to Route 33, where there is a large drainage channel along the road, and eventually all of the project ponds will be connected with underground storm pipes and drain tubing.

When asked if the units had basements, he said that would not be the case, adding that the site being flat and having a high groundwater table “really doesn’t lend itself to basements.”

Schenne said the proposal also includes about 3,000 linear feet of water line.

“Gravity sewers would connect through an adjacent property that Dave controls at this point – to the east – and connect to the Meadowbrook subdivision,” he said. “There’s a lift station there and our sewers would dump into sanitary sewers there and run through their lift station to get to the city treatment plant.”

ANOTHER ACCESS POINT ON EDGEWOOD

All utilities, cable television and telephone lines will be underground, said Ficarella, adding that he is working out the logistics with the utility companies and Spectrum.

“Everything is underway. We’re waiting to break ground as soon as we can,” he said.

Lazarus said his company will provide cold-rolled steel to be used to frame the units, instead of lumber, to help the developers keep construction costs “consistent.”

“We use this in the commercial environment .. extensive use in the multi-family and commercial side of things,” he said. “It does have all the engineering requirements for residential … and it doesn’t affect the comfort of the home in any way, shape or form.”

Concerning Phase 3, planner Paul Marchese questioned the plan to connect to Edgewood Drive, pointing out that there currently is only one entrance to and exit from the road.

“Gary (McWethy) was given the permission to expand to some of those but the requirement was that he had to put that point of egress unto (Route) 33 but it never happened,” Marchese said.

Schenne replied that it didn’t happen due to the exorbitant cost of putting in the roads and utilities, but things are different now.

“With this big development going here, the need for a secondary egress for emergency vehicles, plus the fact that we have a force main that we want to run across there, makes a lot of sense to connect this up,” he said, as he distributed a map of a site plan showing nine additional building lots at the west end of Edgewood.

FUEL STATION OR STORE ON SITE?

Jasinski said that there has been much discussion about extending Edgewood Drive, “but this is the first time that it looks like it’s going to happen.”

Ficarella mentioned putting a multi-use facility on 1.75 acres in the southwest corner of the Phase 1 development, possibly a fuel station or store. Currently, it is zoned Agricultural-Residential, and would need a special use permit.

He was advised to include that – as well as details about Phase 2 units as it pertains to the future Ellicott Trail extension -- in the site plan for the entire scope of the project.

“Again, you have to hone in on exactly what it is you’re going to build,” Mountain advised. “And once you know that, that’s when we can review everything.

“Essentially, you need a draft plat mat, so if there are going to be future public roads going to Edgewood, we need to see that layout. It doesn’t have to be a ton of engineering, but it has to be enough to know that it will work – and it all has to be laid out so we can review everything.”

Schenne said that he expects to have the requested drawings done by the planning board’s September meeting.

REALTY OFFICE SIGN APPROVED

In other action, planners approved placement of a sign and the site plan for Zambito Realtors to open an office in a house the company recently purchased at 8329 Lewiston Rd., across the street from Applebee’s.

Lang said the sign would be placed 36 feet from the road and out of the right-of-way, and the site plan meets all existing town zoning regulations.

Owned by Rita Zambito and her son, Mark, the agency has three other locations – the main office in Medina and offices in Lockport and Orchard Park. Rita Zambito said about seven real estate agents will be working out of the Batavia site.

The renovation project includes siding, windows and removal of a breezeway to make room for a handicap ramp. Future plans call for widening the driveway to allow for more parking.

Photo: Presenting the Hickory Ridge Estates development proposal to the Batavia Town Planning Board last night are, from left, David and Katie Ficarella, and John Schenne. Photo by Mike Pettinella.

Previously: Lovers Lane Road couple's senior housing development off Pearl Street Road is back on the table | The Batavian

With a qualified candidate for an open assistant district attorney post waiting for results of the New York State bar examination, the Genesee County Legislature’s Public Service Committee is recommending passage of District Attorney Lawrence Friedman’s request to create a new position that would enable her to begin employment right away.

Friedman, at Monday’s PSC meeting at the Office of Emergency Management Services on State Street Road, said he just received word that an ADA will be leaving in two weeks, leaving a void in his department that needs to be filled immediately.

“I have someone in mind to hire … who took the bar at the end of July,” he said. “Experience has taught us it is very difficult to fill these positions.”

Per the resolution passed by the committee and forwarded to the full legislature next week, the candidate is a Genesee County resident who completed law school and has indicated a desire to become an ADA upon passing the bar exam.

The new position of a full-time temporary criminal law associate, per the resolution, “will allow this individual to perform many of the duties of an Assistant District Attorney, while under the direct supervision of a licensed attorney … to help alleviate the backlog of work.”

Friedman said another ADA is on Family Leave until January 2022.

The candidate, who was not named, has been a Genesee County dispatcher for seven years and has experience as a court clerk, Friedman said.

“I’ve known her for a long time. She’s a local resident who very much wants to be a prosecutor,” he said, adding that an order from the Appellate Division authorizes her to work during a “training period” until becoming a full-fledged lawyer.

The term of the new position is Aug. 30 through Feb. 28, 2022, but Friedman said he hopes it will be shorter than that.

In another development, the committee voted to accept an Airport Improvement Program grant from the Federal Aviation Administration for the reconstruction of the existing apron and associated lighting at the Genesee County Airport.

Total cost of the capital project is $1.5 million, with federal and state funding taking care of all but the county’s share of $75,866 (which will be paid from the 1 percent sales tax fund).

The legislature’s Ways & Means Committee met after the PSC, approving several resolutions, including the following:

• Charging back to several towns and the City of Batavia for assessment rolls, tax rolls, tax bills, supplies, and assessment update services that were provided in the previous fiscal year.

The total amount of chargebacks, which will be applied to 2022 town and city budgets, is $87,651. Another $12,650 is being charged back for New York State licensing fees.

Amounts by municipality, with figures representing number of parcels, assessment rolls/bills, license fees and total:

• Alabama --- 1,130; $3,390.00; $1,000.00; $4,390.00.
• Alexander -- 1,459; $4,377.00; $1,000.00; $5,377.00.
• Batavia (Town) -- 3,121; $9,363.00; $631.05; $9,994.05.
• Bergen -- 1,668; $5,004.00; $1,000.00; $6,004.00.
• Bethany -- 1,019; $3,057.00; $427.10; $3,484.10.
• Byron -- 1,359 ; $4,077.00; $1,000.00; $5,077.00.
• Darien -- 1,844; $5,532.00; $772.90; $6,304.90.
• Elba -- 1,502; $4,506.00; $1,000.00; $5,506.00.
• Le Roy -- 3,483; $10,449.00; $1,045.32; $11,494.32.
• Oakfield -- 1,522; $4,566.00; $1,000.00; $5,566.00.
• Pavilion -- 1,515; $4,545.00; $454.68; $4,999.68.
• Pembroke -- 2,485; $7,455.00; $1,200.00; $8,655.00.
• Stafford -- 1,576; $4,728.00; $1,000.00; $5,728.00.
• Batavia (City) -- 5,534; $16,602.00; $1,118.95; $17,720.95.

The 2020 chargebacks totaled $98,427.00.

• Authorization to submit a grant application to the New York State Office of Community Renewal for a Community Development Block Grant of up to $1 million to assist small businesses (25 employees or less) and microenterprises in the wake of losses incurred during the COVID-19 pandemic.

The funds would be facilitated by the Genesee Gateway Local Development Corp., said County Manager Matt Landers.

The resolution indicates the grant will lead to “substantial benefit to Genesee County in forms of safer businesses, new investment, and new or restored employment positions.”

• On another front, Landers said the committee charged with studying the new county jail is supporting the building of a 184-bed, four-pod facility on West Main Street Road, including the construction of a backup E-911 center.

Landers said the plan is to solicit bids in the late fall or early winter and to break ground next spring.

The lawyer representing Michael Nolan, the former chief operating officer at Western Regional Off-Track Betting Corp., is suing for $14.5 million following his client’s termination last December.

The 23-page document filed Aug. 12 in U.S. District Court Western District of New York by attorney Steven M. Cohen of HoganWillig, PLLC, names Richard Bianchi, chairman of the WROTB board of directors, and Henry Wojtaszek, WROTB president and chief executive officer, as defendants.

The suit is asking for Nolan to receive $4.5 million for violating his First Amendment rights, another $4.5 million for breaking the state’s Civil Service Law and an additional $5.5 million for emotional pain and suffering.

Nolan, who lived in Elma at the time of his employment, now resides in West Palm Beach, Fla. The lawsuit is requesting that the matter be settled by a trial by jury.

As reported on The Batavian last December, following Nolan’s firing from a job that paid more than $100,000 per year, Cohen said that his client had been ostracized and shut out of OTB developments since April of 2019 for sharing information with federal and state authorities as part of an inquiry into practices such as health insurance plans for board members, use of sports tickets and luxury boxes, and awarding of contracts.

Also, at that time, Daniel Oliverio of Hodgson Russ, the attorney representing WROTB, disputed the allegations, stating that evidence gained through months of examination and interviewing of more than 30 witnesses did not substantiate Nolan’s claims, and that his termination was carefully considered and appropriate as it pertains to job performance.

The Batavian placed calls to both lawyers today seeking comment on the recent filing of the suit, which follows up Cohen’s previous civil action that sought “at least $5 million in damages” for Nolan.

The updated suit calls for $14.5 million in compensatory damages plus Nolan’s reinstatement to his former COO position, reinstatement of full fringe benefits and seniority rights, damages sustained due to the violation including, without limitation, the compensation for lost wages, benefits and other remuneration, and payment of all reasonable costs, disbursements, and attorney's fees.

Previously: WROTB fires chief operating officer who files Notice of Claim seeking $5 million in damages

While staffing, or lack thereof, has been at the forefront of issues facing the Genesee County Office of Emergency Management Services, the importance of dependable equipment also is high on the list.

County EMS Coordinator Tim Yaeger on Monday afternoon emphasized that point to members of the Genesee County Legislature’s Public Services Committee during a meeting at EMS headquarters on State Street Road.

“We are looking at replacing ESU2, which is labeled as a mobile communications command unit … (and serves) as the mobile office,” Yaeger said. “It’s 16, 17 years old and it’s starting to show some wear and starting to show its weaknesses in reliability.”

Yaeger said he is in the process of putting a capital project together to obtain a larger mobile unit, stating that he expects the cost to be in the $400,000 to $450,000 range. He said he is hoping to “carve out a bit of money every year,” adding that the current unit does have some value as a trade-in.

He said the mobile unit is used once or twice a month on average, and is the only vehicle of its type in the county.

“The last thing we want it to be is not reliable,” Yaeger said.

The EMS coordinator touched on several other topics, including the Ready Genesee app, day-to-day staffing and operations, a contract with Municipal Resources Inc. to study the county’s fire/emergency response capabilities, training, other projects and funding.

READY GENESEE APP

Yaeger reported that his office will be working with the Genesee County Health Department to research other apps “in regard to capabilities, efficiency and cost effectiveness as an alternative to the app currently being used by the county.”

The Ready Genesee app was launched in April 2016 to assist residents in case of emergencies and as a tool to receive instant notifications should an emergency occur.

“This app has proven to be a valuable tool in communicating with the public in the past and during the on-going COVID-19 health crisis,” Yaeger reported.

DAY-TO-DAY OPERATIONS

“Overall, as far as the normal day-to-day operations of the office, we’re in really good shape,” he said. “There are struggles that we’re starting to see from the volunteer staffing side. It’s starting to affect our specialized team capabilities; it’s starting to affect our instructor staff that both work for the county and New York State.”

Yaeger said the candidate pool in the EMS field is shrinking.

“So, it’s that same issue (as staffing of volunteer fire departments) with the skill sets that we’re needing becoming very scarce, and my fear is that through that process we start to lower the bar. And, that’s the furthest thing that we need,” he said.

He said the expectations of his office continue to increase, noting that county EMS employees are having to be more “hands on” when it comes to emergency response.

Yaeger mentioned that Gary Patnode has been promoted to deputy coordinator position, and interviews are being scheduled to fill his former post as training technician.

Responding to a question about the factors affecting the EMS candidate pool, Yaeger said, “The expectation of the skill set that they’re required to have is getting harder and harder to find. That’s a difficult part. The pay scale is always an issue; it’s very competitive – to be able to find those opportunities.”

He also said the reality is that there are fewer people involved in public safety, citing the number of hours needed for training and the level of compensation in many cases.

MRI’S WORK CONTINUES

Yaeger said he was encouraged by last month’s visit of four MRI representatives, reporting that they held 21 meetings in a three-day period.

MRI consultants will “make more rounds to fire companies and getting surveys out to firefighters and the community” as well as looking into the age and capabilities of fire stations throughout the county, he said.

He also shared the situation in the Town of Bethany, where the fire chief is shorthanded due to serious illness of a longtime paramedic.

“He’s at a loss,” Yaeger said. “What does he do now because he has less and less medics? So, how do we get the ambulance on the road? He’s very frustrated and upset.”

It falls upon county EMS to bridge the gap, he said, until a solution to our crisis in staffing across the county is found.

TRAININGS MOVE FORWARD

Yaeger said trainings have restarted after being shut down by COVID-19.

Some of those trainings include:

• Automated external defibrillator drills. The initial AED training was conducted by the county in 2017 with recertification required every two years. Office of Emergency Management staff is in the process of coordinating the in-person AED recertification for county employees. Training is planned for 2022.

• Fire drills. Six fire drills were completed to date with an additional 13 scheduled at county-owned or occupied buildings. In addition to the EMS office staff, personnel at Facility Management, City of Batavia Fire Department and Town of Batavia Fire Department will or have assisted in these drills. AED inspections are being conducted at the time of the fire drills.

• Fire extinguisher inspection/AED inspection. As of 2018, the EMS office has taken on the added responsibility of the annual fire extinguisher inspections and semi-annual AED inspections. This effort is an attempt to provide a more comprehensive and cost effective service. Inspections of fire extinguishers in county buildings are complete for 2021.

PROJECTS INCLUDE PARKING LOT

Calling it the most important upgrade at this point, Yaeger said his office received a State and Municipal award for $60,000 to repave the main parking lot.

Work consisted of repaving of the main entry and main parking area of the Fire Training Center/Emergency Operation Center, including the rear driveway and entry to the rear apparatus bay as well as adding gutters to the main facility.

Also, Yaeger mentioned he is awaiting the go-ahead to resume construction of a training maze that was started by Iroquois Job Corps students. Materials were acquired through a donation from a local business.

He said the EMS office has received approval from Homeland Security of New York State to use Homeland Security funds to buy an unmanned aerial system (drone).

“It took us about a year to put the policies and procedures together that FEMA (Federal Emergency Management Agency) requires to have in place to be able to use Homeland Security money to purchase that drone,” he said.

HOMELAND SECURITY FUNDING DECREASES

Yaeger said funding from Homeland Security fell by 11 percent for this fiscal year, from $82,336 to $73,620.

“I don’t know if that money is going to continue but it’s a little bit disturbing because we rely a lot on that money to run our programs and run our office,” he offered. “I’d hate to see that Homeland Security money downsize itself. It’s really important that we continue that appropriation.”

Additional funding sources include Hazardous Materials Emergency Preparedness, Emergency Management Performance, Regional Hazardous Materials and Public Assistance Program grants.

The Genesee County Legislature’s Ways & Means Committee today acted upon a suggestion by the Pembroke Town Board to increase the amount of sales tax earmarked for distribution to towns and villages by passing a resolution amending the county’s sales tax allocation agreement with the City of Batavia.

Meeting at the county Emergency Management Services office on State Street Road, the committee approved a restated contract with the city – which along with the county is one of the two taxing municipalities in Genesee County.

The amended agreement ups the amount of sales tax revenue the county is willing to share with its towns and villages over the next 38 years from $7 million to $8.5 million.

It also drops the amount of other revenue the county will distribute – on a periodic basis – from $3 million to $1.5 million – keeping the total amount at the $10 million level that county leaders felt comfortable sharing.

This latest legislation, which is subject to final approval by the full legislature at its Aug. 25 meeting, was triggered by the recent opting in of revised water supply agreements with the county by the Village of Corfu and the Town of Pembroke.

When the Pembroke Town Board voted to opt in to a new water agreement last week – leaving the Town of Darien as the lone municipality to not sign on to a new deal, Supervisor Thomas Schneider Jr. proposed increasing the fixed sales tax distribution amount.

Genesee County, with a goal of equalizing water rates across the board and having the ability to raise the water surcharge as its Countywide Water Supply Project progresses, initially offered to distribute $10 million in sales tax money as long as all 17 towns and villages opted in to new water supply agreements. If not, then the split was going to be $7 million in sales tax and $3 million in other revenue.

Following today’s Ways & Means meeting, County Manager Matt Landers acknowledged that Pembroke’s suggestion was well received by the legislature.

“The legislature was supportive of moving from $7 million to $8.5 (million) because it does help those towns and villages with their accounting issues that came to light by not being able to share revenue distribution into their B funds,” he said.

“So, the legislature was receptive to the opportunity to share extra sales tax as we understood the Town of Pembroke’s position, seeing that Corfu has already passed it and Darien had not passed it. Pembroke was left thinking what’s the advantage for them to sign the updated water supply agreement if there wasn’t going to be an increase over the $7 million.”

When asked about the status of the Town of Darien, Landers said he continues to speak with officials there and is hopeful that something can be worked out prior to the legislature taking up the final resolution next week.

In other developments, Ways & Means:

-- Approved a request by County Attorney Kevin Earl to extend the statute that spells out the county’s hotel/motel room occupancy tax by three months – through the end of the fiscal year – as the legislature attempts to sort out whether to pass a long-term revision that would include taxation of online booking platforms, such as Airbnb.

“It would be a major change if we did it right now,” Earl said, referring to drafting complex changes at this time. “So, what I’m proposing is to extend the current law to the end of the year … and, obviously, the final one that we propose would be for three years starting in January.”

Legislators have been grappling with this issue for several months, reaching out to Chamber of Commerce staff members for their input in how to capture a portion of the income being generated by increasingly-popular home-based lodging sites.

Committee Chair Marianne Clattenburg agreed that it would be wise to wait before enacting a permanent bed tax law because “I don’t know if we’ve really come to terms with all that is involved …”

-- Welcomed Batavia native Justin Gerace on his first day as a county assistant engineer, with his primary responsibility focusing on helping to facilitate the long-term Countywide Water Supply Project.

A 2014 Batavia High School graduate, Gerace earned his associate’s degree in Engineering Science from Genesee Community College before transferring to the University of Buffalo. At UB, he obtained a bachelor’s degree in Civil Engineering and a master’s degree in Structural and Earthquake Engineering.

Last fall, he worked for the structural engineering firm of Simpson, Gumpertz & Heger in New York City, but said he felt the call to return to his roots.

Previously, he was an intern for LaBella Associates in Rochester and for Arup in New York City.

“(County Engineer) Tim (Hens) informed me of this position .. and I thought it was a good fit,” he said. “I will be able to stay local and be near my family.”

Gerace acknowledged a “big learning curve” as he studies documents and visits water pump stations in and around Genesee County.

“I’m excited … I know there’s work to be done over the next 10 or 15 years,” he said, noting the county is moving into Phase 3 of the water project. “Just getting up to speed on all of the moving parts. It’s pretty daunting.”

Genesee County Sheriff Bill Sheron, third from right, conducted a tour of the new firing range behind the Emergency Management Services office on State Street Road this afternoon for members of the Genesee County Legislature.

Sheron said the 60- by 150-yard parcel, which is surrounded by 30-foot high berms to suppress the sound of gun shots, will be equipped with pylons and yardage markers in time for county law enforcement's September qualifier.

Following the tour, the legislature's Public Service Committee lapproved a resolution opening the range for training during the summer months, excluding the need for a wood fence and permitting the use of high-powered rifles.

Highway Superintendent Tim Hens said that 4,000 truckloads of material were brought it over the past several years to ensure that "sound would go up and not out." The new range will replace one that is closer to the EMS building and the road.

From left are Marianne Clattenbur, John Deleo, Sheron, Christian Yunker and Chad Klotzbach.

Photo by Mike Pettinella.

And then there was one.

The Pembroke Town Board on Thursday night voted, 5-0, to sign an amended water supply agreement with Genesee County, leaving the Town of Darien as the lone municipality not to opt in to a contract that would set the stage for $10 million in sales tax distribution from the county to its towns and villages over the next 38 years.

“We felt that it was more important to secure sales tax funding than to hold out on the water agreement,” Pembroke Town Supervisor Thomas Schneider Jr. said. “In good faith, we believed that it was best to mend some fences with the county.”

In a previous story on The Batavian, Schneider indicated there were some hard feelings over the way water agreements were handled in the past, but the current board is willing to give county leaders the benefit of the doubt – believing that the legislature will attain its goal of equalizing the water surcharge.

Schneider also said he talked to County Manager Matt Landers about the potential of “bumping up” the guaranteed sales tax money to be shared with the municipalities in light of the Village of Corfu (at the end of July) and Town of Pembroke opting in.

PEMBROKE MAKES COUNTEROFFER

“Hopefully, we are thinking that the $7 million in sales tax distribution could go to maybe eight or eight and a half million – based on having Corfu and Pembroke on board.”

Genesee County’s offer to distribute $10 million in straight sales tax revenue is contingent upon universal buy-in from its towns and villages.

Without that universal buy-in, the proposal is to distribute $7 million in annual sales tax revenue and an additional $3 million in other revenue on a periodic basis over the next 38 years.

Municipalities not opting in would receive less in revenue distribution than expected to allow for the equalization of water surcharge revenue.

Legislature Chair Rochelle Stein was asked if lawmakers would consider Schneider’s proposal to increase the guaranteed sales tax distribution.

Choosing her words carefully, she replied, “Here’s what I’m going to say: Let us do our work.”

“We have not met and we won’t until Monday. So, there’s a process that we follow and let us do our work. But, certainly, that suggestion is taken and welcomed.”

FIXING UNBALANCED TAX RATES

Currently, the county’s revenue sharing process has created a situation, per state law, where towns with villages inside them have to keep two separate books and have two separate tax rates – an A fund for townwide sales tax that affects everyone and a B fund for sales tax that only affects the services of taxpayers outside the village.

Stein said the legislature’s focus has been “to be able to direct that revenue sharing into the B funds of those towns and villages; that is our focus for this entire process. And, if we can find a way to get there together, that’s our goal.”

She previously explained that the $10 million figure that the county is committed to putting into the sales tax agreement would fix the unbalanced A and B tax rate.

When asked if she thought the Darien Town Board would change is mind and opt in, Stein said she that if it did reconsider, it would need to be mindful that the county has a timetable to adhere to “that is significant because our calendar has already started.”

The legislature’s Ways & Means Committee is expected to address the situation at its meeting this Monday, with the full legislature scheduled to vote on a distribution amount on Aug. 25.

“Plus, the City of Batavia has to do this at their meetings in September and the (New York State) Office of Comptroller needs 60 to 90 days and we already want to be able to distribute our third quarter payments (in October) as sales tax,” Stein advised.

“Time is not our friend right now,” she said. “But for those six towns that have the B funds or that have villages in their towns, it is truly meaningful for their more rural taxpayers to rebalance that property tax imbalance that is occurring right now for them.”

PURSUING WATER RATE EQUALIZATION

Landers said he was “happy” to learn that Pembroke passed the resolution.

“I know that they will be hopeful that the county as a whole, not just Genesee County but the towns, will remember this 5-0 vote when it comes time for the equalization of the retail water rate charged by the Monroe County Water Authority,” he said.

“The county can recommend an equalized retail rate and, again, I’m certain that Pembroke is hoping for a spirit of cooperation seeing that they agreed to sign this agreement because they know it is best for the county as a whole.  It is in everyone’s best interest to have an equalized rate because it allows for the free flow of water a little easier between the center and western parts of the county.”

Landers explained that the original agreements with towns and villages dating back to the early 2000s each had “little nuances in them,” with different considerations.

“When the county took over individual water systems, the county water fund would make some compensation sometimes for that,” he said. “For example, we paid off some of the debt of the Corfu water plant for that village. All of the amended water supply agreements that the county have undertaken over the last three or four years have been uniform; we wanted to make sure that they’re all the same.”

The new agreements allow for the county, with proper notification and justification, to increase the surcharge above 60 cents (per 1,000 gallons). The original agreements were frozen at 60 cents but since then, the later agreements raised it to $1.20 to pay for Phase 2 of the Countywide Water Supply Project.

CLEANING UP THE LANGUAGE

The county manager said one of the sticking points was the county removing erroneous language in the initial agreements that guaranteed supplying water to the municipalities.

“It’s erroneous in the sense that the Monroe County Water Authority, in our agreement with them, can’t guarantee us water; there are things that can happen,” he said. “It is difficult for us to guarantee something that’s not guaranteed to us.”

He said that changes had to be made “because we need water to pay for water.”

“When we go to Phase 3, 4, 5, 6 and 7 (of the Countywide Water Supply Project), if there needs to be an increase (in the surcharge) to pay for the debt service, there needs to be a way to pay for it,” he said, adding that 20- to 30-year cash flow projections – including the retirement of some debt service -- indicate that the surcharge should not increase that much, if at all.

Landers said that he continues to speak to Darien Town Supervisor Steve Ferry Jr. about his board’s decision.

“If Darien passed a resolution next week and they signed the water agreement, it is possible that the amount in the resolution on the floor of the legislature on August 25^th could be amended to be increased to $10 million,” he said. “I still have hope that we can find a path forward so that we can share the full $10 million in sales tax, and have everyone on the same water supply agreement.”

Asked if Ferry has sought concessions from the county, understanding that Darien has been paying more for water than other towns and villages, Landers would not go there.

“I don’t want to get into the subject of proposals back and forth,” he said. “I want all of that to be discussed between him and I, and our legislature and his board.”

Previously: Darien Town Board votes to not accept county's updated water agreement offer; Corfu signs on; Pembroke TBD.

Previously: Ways & Means passes measures rescinding revenue distribution payments, accepting HCA with Plug Power.

A driver was uninjured after her car left the roadway on Clinton Street Road in Bergen around 2 this afternoon and stuck a utility pole.  

The driver was evaluated by Mercy EMS medical and signed off on further treatment.  

Bergen Fire responded along with a deputy and a trooper.  

Photo by Howard Owens.

While considering recommendations from the New York State Education Department, Center for Disease Controls and incoming Governor Kathy Hochul, the superintendent at Oakfield-Alabama Central School said the district’s reopening plan released today primarily reflects the wishes of its staff and its residents.

The plan formulated by John Fisgus calls for five days of in-person learning when classes resume on Sept. 8, with the wearing of masks or face coverings for students and staff while in classrooms left up to the individual’s personal choice.

Per the document, “Students and District staff are ‘highly recommended” to wear masks while in classrooms during instruction and learning, but it is NOT REQUIRED regardless of vaccination status. This is a personal choice and decision.”

The protocols do, however, require mask wearing on school buses, entering the school buildings and reporting to classrooms, and while traveling in the hallways between classes and/or to different locations within the buildings.

Fisgus (photo at right) said results of a survey he sent out on Aug. 5 separately to district staff and separately to residents is at the heart of the directive.

“We were looking to get a feel for their thoughts on masking -- thinking that there could be quite a difference in philosophies as, obviously, the teachers and the district staff can have a difference in opinion from that of the community,” Fisgus said.

What he found, however, was that both groups – staff and residents – were “right in line with each other,” he said.

RESPONDENTS WANT ABILITY TO CHOOSE

“Overwhelmingly, in summary, they (staff and residents) want the personal choice to wear a mask or not. It was 75 or 80 percent in favor of that,” he reported.

The O-A survey featured seven questions about masks, with respondents asked to rate their choices from strongly disagree to strongly agree. Fisgus said he received more than 400 responses.

The questions were as follows:

• Students age 4-11 years old who cannot be vaccinated at this time should be required to wear masks at school at all times.
• Students age 12 and older who can be vaccinated and are not should be required to wear masks at school at all times while indoors.
• Students age 12 and older who can be vaccinated and are vaccinated should be required to wear masks at school at all times.
• Adults who are not vaccinated should be required to wear a mask.
• Adults who are vaccinated should be required to wear a mask.
• The O-A district should require that all staff and students wear masks at all times while in school.
• The O-A district should leave mask wearing for staff and students as a personal choice and decision.

“Knowing what our local community wants and what our district staff is favoring, that is what we’re going to base our decisions on at this time,” he said. “But also know that we will have flexibility as we will be watching the seven-day rolling average. If something comes down that we’re having an increase in spread or whatever, certainly these protocols can change.”

INSIDE THE O-A REOPENING PLAN

Other key points of the O-A reopening plan are as follows:

• While we will try to maintain 3-6 feet of social distance, some classrooms and learning activities will return to group work with close collaboration among students and our teachers.
• Physical Education classes, Band and Chorus Ensembles and lessons, will return to normal operations in their regular classroom environments.
• Cafeteria operations will return to normal. Students will be seated at our original tables as assigned within each of our buildings.
• If anyone prefers to wear a mask while on campus, they will have the ability to do so with the respect of all students and staff members.
• The District will continue its high levels of ventilation, sanitation, and cleaning each day.
• We ask that each student and District staff member continue the practice of good hygiene by washing hands frequently and maintaining the proper social distance from one another, whenever possible.
• We ask that your child(ren) and our District staff members stay home when ill and  contact the appropriate school nurse.
• It is NOT REQUIRED for families and District employees to fill out the daily health screening form in ParentSquare this year.
• In the absence of any future school mandates regarding interscholastic sport competitions from NYSPHSAA, masks are *highly recommended* but NOT REQUIRED during practices and competitions. Players and coaches have the personal choice and right to wear a mask if desired.
• Our extracurricular activities and events at school will take place throughout the year and the wearing of masks is *highly recommended* but NOT REQUIRED by students and advisors. Any outside visitors to our campus for school events are *highly recommended* to wear masks, but it is NOT REQUIRED, regardless of vaccination status. This is a personal choice and decision.

*Please be advised of the following regulations regarding “close contacts” and “quarantining”:

•  A Close contact is defined as someone who was within 6 feet of an infected individual for a cumulative total of 15 minutes. Close contacts, along with the infected individual, will need to quarantine if identified in contact tracing efforts. In the classroom setting, the close contact definition EXCLUDES students who were within 6 feet of an infected individual if BOTH the infected individual and exposed student(s) were wearing a mask.
• Fully vaccinated students and teachers ARE NOT required to quarantine, however, they should be tested 3-5 days after exposure, even if asymptomatic, and wear a mask until their test result is negative.
• Quarantine period is 10 days.

DAILY MONITORING WILL TAKE PLACE

The District will continue each day to monitor the health and wellness of our students and District staff, along with the localized spread rate of COVID-19 and the Delta variant in Genesee County and our surrounding towns and villages.

Please be advised that the above protocols and procedures could change within 1-12 hours if the District feels it necessary for the health and protection of our students and District staff. Decisions will be based upon our current health status within our buildings and may be based upon the 7-day rolling average of transmission in our area. As well, any future mandates from the NYSDOH or NYSED may alter these plans.

Fisgus said the district’s board of education signed off on the reopening plan and he met with the teachers’ union earlier today to share the guidelines. On Thursday, he participated along with other superintendents in a Zoom meeting with Genesee Valley BOCES District Superintendent Kevin MacDonald.

“We’re all working together to try to figure out what is best for our region but, more importantly, what’s best for our local school districts,” he said.

Fisgus expects that the reopening document “will be fiercely circulated around the area,” and decided to release it despite receiving NYSED’s guidance late yesterday afternoon. Also, on Thursday, Hochul came out in favor of universal mask wearing in schools.

BOCES LEADER: 'WE'RE IN A HOLDING PATTERN'

MacDonald, speaking for the 22 schools affiliated with Genesee Valley BOCES, said most districts are in “a bit of a holding pattern” as recommendations continue to come out.

“We’ve heard now that incoming Governor Hochul is in favor of school masks, so I guess, right now, there’s not a rush. We know we have to communicate with our communities what’s happening, but in terms of a mask mandate, I don’t think we’re there yet,” he said.

MacDonald said he plans to touch base with other administrators on a weekly basis until the first week of September, with the overarching goal of ensuring “we get all kids in school every day in the safest way possible for students and staff.”

“Each superintendent has the best feel and bead on their community and what they think is best, and in the end that’s what we all have to do – what we think is best,” he said.

Notre Dame High School Principal Wade Bianco said the private school’s plan is to follow the guidelines set by the state and the county in order to comply.

“We’re going to try to give the kids the least restrictive environment as possible, based on those guidelines,” he said, adding that he has scheduled a staff meeting for next Wednesday and expects a reopening plan decision to be made at that time.

Updated 10:10 a.m. with village population. Note that town population numbers include the village population.

---------------

The director of the Genesee County Planning Department, the agency that coordinated the most recent census, said today that he is pleased that the number of people living in the county in 2020 was more than anticipated.

The Healthy Moms, Healthy Babies program at Genesee/Orleans Council on Alcoholism and Substance Abuse is making a difference in the lives of women dealing with substance use issues while trying to raise a family, according to Jessica Budzinack, the agency’s parent/family support and project specialist.

“During the past year, we have been able to connect with parents or family members that need individualized support, putting a primary focus on pregnant and post-natal women and women who have children that were exposed to substances in the womb,” Budzinack said.

“Parents in recovery or parents that struggle with addiction have different needs and different barriers that they need to overcome.”

The initiative is supported by the Health Resources and Services Administration of the U.S. Department of Health and Human Services as part of a financial assistance awarded totaling $500,000, said Rosalie Mangino-Crandall, GCASA’s director of Project Innovation and Expansion.

Mangino-Crandall said the specific program is funded by an HRSA Rural Communities Opioid Response Program-Neonatal Abstinence Syndrome (RCORP-NAS) grant.

The HRSA RCORP-NAS program places emphasis on pregnant women, mothers, and women of childbearing age who have a history of, or who are at risk for, substance use disorder or opioid use disorder, and their children, families, and caregivers.

At GCASA, Healthy Moms, Healthy Babies specifically supports pregnant and post-partum women with substance use disorder and their partners and children as well as anyone caring for a child exposed to substances in the womb.

Services include case management (including connections to treatment, healthcare coordination, and assistance with social determinants of health), parenting peer support, recovery peer support, and transportation and childcare assistance.

Budzinack said the program offers “coach-like peer support to parents and their families.”

“We work with them to overcome obstacles, such as navigating the Family Court system, helping them find extra support for their children and helping them … connect to different organizations or resources that they need to help them be successful parents,” she said. “We also connect them with our Prevention team, which offers active parenting classes and other forms of education.”

She noted that she also has been able to assist mothers with children in foster care.

“We do what we can to help during the process of trying to bring them home. We help them navigate in that area to achieve those goals,” she said.

Healthy Moms, Healthy Babies staff are committed to lifting mothers and children with self-esteem issues as well.

“Another thing that they face is stigma,” Budzinack said. “They kind of feel like the world is shaming them for making that decision. Our job is to make them feel comfortable and responsible, and educate them to the best of our ability. Education is a big thing.”

Mangino-Crandall said the project utilizes the research-based Positive Direction Model created by Dr. Davina Moss-King to help pregnant women prevent and mitigate the effects of substances taken during pregnancy on their babies.

“This includes properly taking prescription medication such as MAT (medically-assisted treatment) medications as well as illicit drugs, alcohol and misused prescription drugs,” she said. “Women who receive medically-assisted treatment have different needs, and there’s much to consider in those cases.”

Budzinack mentioned the high level of uncertainty and fear faced by pregnant women on MAT who have just given birth.

“They have so much to think through,” she said. “How does this affect my pregnancy? What’s going to happen after I have the baby? Just to have someone that they can talk to without judgment, to make sure they know the importance of her health and the health of that child.”

She said she worked with a woman last summer who was pregnant and had two daughters in temporary foster care.

“We helped her to meet the criteria for the Office of Children and Family Services to bring her children back home while she underwent medically-assisted treatment to maintain recovery,” she explained. “Through support of a case manager, participating in The Recovery Station (on Clinton Street Road) and taking advantage of active parenting classes, things are working out for her.”

Budzinack said the woman has made a concerted effort to get her children back and that commitment has paid off. Her baby is going to be a year old in a couple months and both of her older daughters are back home with their mother.

Healthy Moms, Healthy Babies is backed by a consortium that includes the following original partners: Oak Orchard Health, Lake Plains Community Care Network, and Genesee and Orleans County Health Departments.

More recent partners include Oak Orchard WIC (Women, Infants and Children), Genesee and Orleans County Mental Health Departments, United Memorial Medical Center, UMMC Moms Program and Orleans Recovery Hope Begins Here.

For more information or to make a referral, go to https://fs9.formsite.com/DCn0ab/yxjhrj9pyu/index.html or call Budzinack at 585-813-8583.

Disclosure: Mike Pettinella is the publicist for GCASA.

Eighteen months and still no signs of slowing down.

Public Health Director Paul Pettit and his staff at the Genesee & Orleans Health Departments have worked tirelessly since February of 2020 to educate, test and vaccinate residents dealing with a COVID-19 pandemic that seemingly just won’t go away.

The Batavian spent about 15 minutes on the phone with Pettit this afternoon, picking his brain about the increase in cases, the Delta variant, community spread categories, face coverings, booster shots and natural immunity.

Q. With the number of cases increasing, do you plan to release information on a daily basis as was the case last year?

A. We’re discussing that; it is readily available as anybody can go to our website (www.gohealthny.org) and/or the dashboards to get all of the current data. We probably will be moving back to reporting at least once a week on the numbers.

We’re in the process of discussing that component of it. We have seen our numbers definitely pick up over the last eight to 10 days compared to where we were in July.

Q. When you talk about numbers, is it the same virus or is it the Delta variant? It seems like there is confusion over what people are coming down with now.

A. The reality is that every time you have a COVID test, there’s not a serotype done to see what strain of the virus it is. So, a lot of times we don’t have that level of detail. The state’s Wadsworth Lab in Albany does do that level of detail – they’ve been doing surveillance sampling of random samples from around the state and they’re also in the process of opening additional labs that will be able to do that. I believe the University of Rochester and one of the labs in Erie County are going to be able to do that.

It’s pretty much understood to be the Delta variant the way the cases are picking up. Samples that have been identified in the region are primarily Delta. It is presumed that it is the Delta strain by the way the numbers are picking up so quickly, but we don’t have the ability locally to analyze every sample.

Q. Do you think there will be some guidance out of Albany – either from the new governor coming in (Kathy Hochul) or from the New York State Department of Health?

A. We haven’t heard any updates on that beyond what the lieutenant governor commented on yesterday that she plans to meet with all of the cabinet members … ultimately it will be her decision on what direction they want to go with that.

(Since this interview, Hochul has announced that she wants students and staff to wear masks when school opens up next month. “My view is that people — children and everyone in the school environment — will be wearing masks,” Hochul said).

We’re going to continue locally to deal with cases through isolations and quarantines, and working in the community to keep the numbers down as best as we can.

Q. It seems like the categories that indicate the level of cases have changed. What are the actual categories now and how are they defined?

A. There’s low, moderate, substantial and high; four buckets basically that the CDC is using to essentially categorize community transmission of COVID. So, moderate is greater than 10 cases per 100,000 per week; substantial is greater or equal to 50 cases per 100,000 per week, and then high is greater than or equal to 100 cases per 100,000 per week.

From 10 to 50 is a pretty big jump, right, but then when you get to substantial, you have to double your weekly count of cases to get to high.

Q. Is it true that Genesee County currently is in the moderate range?

A. We have been in the moderate category but the numbers that we have seen over the past four to five days, averaging from seven to 10 cases per day, if those numbers continue over the seven-day period – which the CDC uses as their window – we’re definitely on the edge of potentially going to substantial.

Per the CDC guidelines, once an area is designated or classified by their chart as substantial spread, that’s when they would start to recommend that people consider masking indoors – vaccinated or unvaccinated – especially if you have certain underlying health conditions or are at high risk, so to speak.

It’s not a mandate – there are no local mandates – and, obviously, the state has not put out any mandates because the executive order/state of emergency has lapsed, but it is recommended due to the amount of spread that is occurring.

Q. How effective do you feel are the masks that people are wearing, especially considering the different types of materials the masks are made of?

A. We’ve talked about the mask question all along, from day one … we’ve heard that you should mask and that you shouldn’t mask from the federal side.

What we do know is that masks are effective in certain settings in reducing risk. People are not wearing, in most cases, N-95 – those are the gold standard masks in stopping viruses and bacteria, etc. But when it comes to what people are wearing in the community, you see many different types of masks.

Your medical surgical masks are probably the most effective outside of the N-95 because they are used in clinical, healthcare settings, and then you have cloth and buffs and all different kinds of barriers that people have created to try to meet the face covering requirements.

It’s a spectrum of how much protection they will provide depending upon the type of material of the masks. I will say that any type of barrier is going to provide some type of protection; depending on which one, more or less, and depending upon how it is worn. There are a lot of variables.

Is it foolproof, that if you wear a mask, you’re not going to get COVID? No. In the general setting, masks are a tool to try to reduce risk of getting the disease. The recommendation is that if you put it on, you’re protecting yourself and potentially others if you have COVID, and providing a layer of risk protection.

Q. Do you agree with Dr. Fauci that everyone will need a booster shot down the road?

A. The boosters are being studied on the federal level by the FDA (Food & Drug Administration), looking at the effectiveness of the current vaccines that we have out there. What we do know is that the vaccines are safe and effective; they’ve done a very good job of preventing illness and preventing disease in those who are fully vaccinated.

We have seen that there are some breakthrough cases occurring and the efficacy of all three vaccines is a little bit lower with the Delta variant than what it was with the original variant of COVID that we were dealing with since the beginning of the pandemic.

With that being said, they’re still very effective. Even with any of the breakthrough cases we are seeing, these folks have had very mild symptoms or asymptomatic, and none of them have gone to the hospital and none of them, obviously, have passed. We know the vaccines are working; they’re keeping people from getting sick. They may get COVID but they’re not getting sick.

As new variants come along, we need to give folks or encourage them to get a booster shot to match up better with the new strain and boost the antibodies and protection they may have. I think there will be a need for a booster shot at some point.

Q. What about people who have had COVID? Don’t they already have natural immunity, and do they need to be vaccinated?

A. Obviously, when you have a disease you develop natural antibodies, so there is some level of protection. But, again, what the data is showing is that those who have had COVID, their antibodies are not as high as they are when you get the vaccine. The recommendation still is that you get vaccinated even if you have had COVID.

The vaccine efficacy gives you better protection from re-infection than just having natural antibodies.

“Masking is the big issue.”

In five words, Pavilion Superintendent Kate Hoffman this morning summed up what other high-level administration officials at Genesee County school districts are thinking as they contemplate their reopening plans when classes resume on Sept. 7 or 8.

The Batavian reached out to public school superintendents and Notre Dame Principal Wade Bianco to gauge their progress in articulating what restrictions, if any, will be placed on pupils and staff.

During discussions with the officials contacted, it was reported that a Zoom meeting is scheduled for 10 a.m. today with Kevin MacDonald, Genesee Valley BOCES district superintendent, to communicate updates on COVID-19 case data and to try to reach a consensus regarding protocols and procedures.

School leaders also have been consulting with Paul Pettit, Genesee/Orleans public health director, for additional guidance on testing, vaccination and other health-related topics.

“We have gone over some guidance following CDC (Centers for Disease Control) recommendations,” Hoffman said. “For us, I’m still formulating our plan. A couple things that I know are likely to happen – we will move to a 3-foot social distancing and we will not be offering a remote option this year.

“We do some opportunities for our high schoolers for a BOCES-run program, but that’s has limited slots for that, so we’re really working through things and trying to see if any guidance does come down from state ed (the New York State Education Department) to see what that entails.”

Currently, superintendents are indicating that they don’t expect any executive orders or mandates coming out of Albany, but things could change if there is a reorganization at the top of the NYS Department of Health.

“It’s my understanding that everything (from the state) are recommendations this time around,” Hoffman advised. “More local decision-making.”

All superintendents said they will be sending out information to the staff and community electronically on their websites and via letters, but none have scheduled in-person meetings with parents yet.

On masking, Hoffman said she’s aware that it is the primary concern of all involved.

“We have some families that are strongly against masking and we have some that are strongly encouraging masking,” she said. “Unfortunately, I’m aware that any plan that we put out is not going to satisfy every single person. My hope is that we do the very best for our students and we approach this with a good dose of common sense and we listen to the people who know the numbers.”

Hoffman mirrored what other superintendents said when it comes to putting out a plan that is flexible in case the landscape changes in either direction.

“I believe our plan will be flexible enough to adjust if the number of COVID cases in our area go up, then we adjust to that; if they go down, then we adjust in the opposite way.”

Comments from other superintendents are as follows:

Scott Bischoping, Batavia High School:

"We’re still in the development of those regionally; still meeting with other superintendents," he said. "As you have seen from the national sort of news how this is traveling – changing very significantly, so we’ve held off on finalizing any planning until we get a further view of it."

Bischoping said Batavia plans on returning with students' in-person learning, so at this point, it's down to the masking requirements.

As far as meetings with parents, he said it may be done on a school building basis.

“We may even do those on a building level rather than a full district level because there would be nuances of those requirements and expectations for different buildings," he offered. "Most would be the same and we will communicate that electronically in letter, but with meetings we have not decided yet whether to do one with the full district or with various groups. Obviously, athletics will be different and will have their own meeting."

He said local districts have the "benefit" of seeing what other states are doing.

"We want to get a good look at that over the next couple weeks before we settle on anything," he said.

John Fisgus, Oakfield-Alabama:

Fisgus said that he anticipates releasing O-A's reopening plan by Friday afternoon, which likely will be the first document that will go out to the public. Previously, he sent out a survey to both staff and the community to gauge residents' feelings on face coverings.

"We certainly will be back five days a week in person; we were that all last year, so that's not a question at all," he said. "The big question for us is the masking."

Gretchen Rosales, Elba:

"Our goal is to develop a plan that meets academic, social, emotional and safety issues of the students and the staff. We have to carefully balance the wishing of our community with the CDC guidelines," she said. "The process is pretty intensive but it's important so it will take a little bit of time. We're working collectively to come up with something."

Rosales said she is expecting to begin the 2021-22 school year with 100 percent in-person learning, but is aware of the public's concerns over masking.

"I think that everyone is just waiting for final guidance and then we can make our plan and go from there."

Merritt Holly, Le Roy: 

Holly noted the number of "moving parts" in the process, especially considering what has happened with Gov. Andrew Cuomo.

"The interesting part is that I don't know, with the administration change in Albany, if the DOH now will put something out at the 12th hour before we start in September," he said. "So, that's always hovering and hanging. Even though they said they wouldn't, was that Governor Cuomo telling them to do that?"

At the local level, Holly said that today's meeting with MacDonald will hopefully "piece some things together and to find out what other districts are thinking about."

He said he initially thought to release his plan next week, but may wait as more and different information is disseminated.

"Really, what I think that it comes down to is that the mask requirements will be the biggest thing," he said, reiterating the common theme.

Plus, students need to be in school five days a week, he said.

"We can't go back to a remote or hybrid learning model," he said. "That's just not good for kids."

The Le Roy Town Zoning Board of Appeals’ unanimous decision Tuesday night to disallow a solar farm on Thwing Road was more than a 3-0 vote -- it was a 3-0 vote times five, according to ZBA Chair Stephen Barbeau.

Barbeau returned a call from The Batavian seeking reasons behind the panel’s action pertaining to CleanChoice Energy’s application to site a 4.95-megawatt solar array on farmland owned by the Gary W. Clark family at 7120 Thwing Rd.

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SEE ALSO: Solar company rep reacts to Le Roy ZBA's denial of community solar project proposed for Thwing Road

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A former Le Roy Town supervisor, Barbeau said the application, in this case, had to meet five different criteria before the ZBA could issue the use variance necessary to place a solar farm in a district zoned other than either Industrial or Interchange (near the NYS Thruway).

The first one was whether the project could be considered a “public utility,” which was the contention of CleanChoice Energy, and the other criteria – in four parts – were contained in the standard use variance guidelines issued by New York State, he said.

“It’s not for the Le Roy Zoning Board of Appeals to declare that commercial solar projects are akin to a public utility; that’s way above our pay grade,” Barbeau said. “That is not something that is supported in the law as it is known and we had no desire to make new law or try to make new law or set any new precedent.”

Barbeau said the ZBA sought out legal advice from multiple sources in order to make an informed decision.

“The applicants, their attorney, Ty (Baccile, project manager) and the Clarks are all good people,” he said, “but the elected board members of the Town Board set code and what these folks were asking for was an exception to that code.

“For us to grant an exception, there had to be some kind of overwhelming, unique, unusual circumstances as it is pretty rare that a use permit is granted.  It’s a very high bar.”

He said that the vote by the three voting ZBA members was 3-0 against categorizing the project a public utility and 3-0 on each of the other four criteria.

“Even if we had relaxed the standards (on the public utility issue) as they wanted us to, they still wouldn’t have cleared the other hurdles,” he said

The four criteria for a use variance for any town, according to Barbeau, are as follows:

1 – The applicant would not be able to realize a reasonable return (profit) as shown by financial evidence and that lack of return must be substantial.

“For example, 'I can’t sell this land for $2 because it’s landlocked or there’s poison on it or it’s an archaeological site so no one would want it. I can’t lease it … or a realtor determines that it’s valueless,'” he said. “They would have to show that they can’t make any money any other way through a permitted use on the property.”

2 – The alleged hardship relating to the property is unique.

“If there’s some kind of unique element to that property that doesn’t allow you (to use it), such as it’s all rock, and you can’t develop it for houses or to farm it or to mine it,” he said. “It’s just so unique that it’s a hardship.”

3 – The use that the applicant is requesting will not alter the essential character of the neighborhood.

“It’s wooded land, it’s farmland and there is some scrubland in there,” he said. “The only things that go on in that area is that people live there, people farm there and they hunt.”

4 – The alleged hardship has been self-created.

“In other words, ‘I inherited the property, I didn’t anticipate inheriting the property, I’m not a farmer, I’ve never been a farmer and I have no farm equipment, and a realtor said the property is worthless, so I can’t do anything with it,’” he said. “Even if that was the case here, you could potentially sell this land.”

Randy Fancher, president of Fancher Properties of Akron, is returning to the Genesee County Planning Board on Thursday night for a third time to propose a revised site plan for a mixed-use project on Main Road between Brickhouse Corners Drive and Tim Hortons in the Town of Pembroke.

The latest version has Fancher Properties of Akron, doing business as Brickhouse Commons LLC, constructing a two-story building with 7,000 square feet of retail space on the first floor and six market rate apartments on the second floor, along with driveways, parking lots and a six-bay tenant parking garage to the south.

A review of his site plan is on the agenda of tomorrow’s meeting starting at 7 o’clock at County Building 2 on West Main Street Road.

“This is basically the third version considering changes requested by the DOT (NYS Department of Transportation) and issues with wetlands,” Fancher said. “So, this is where we have to start until we hear back from the Army Corps of Engineers on our request for wetland reclassification, which could take up to a year. We didn’t want to wait so we decided to get started here.”

Fancher said that his company will begin construction once all permits are obtained and verbal commitments for tax incentives from the Genesee County Economic Development Center are approved.

“We’re looking to start in the late fall and hope to have the building up about a year from now,” he said.

The project has changed in scope from what Fancher Properties proposed last June – going from a three-story mixed-use building with retail on the first floor and 17 apartments on the top two floors.

In January of this year, the company modified its plan to a two-story mixed-use building along with two buildings housing 12 apartments.

“Last year, we were already to go but then the DOT said that we couldn’t have a driveway onto Route 77,” Fancher said. “We’ve had a few challenges up to this point but we’re working through them.”

Because of the DOT’s concerns, the company moved the location from Route 77 to Main Road (Route 5).

“We’re still on the corner, basically, but instead of building on Route 77, we’re on Route 5,” Fancher said, adding that the venture was delayed because the DOT would not allow a curb cut onto Route 77,

“We have to connect a road from Route 77 over to Brickhouse Corners Road, which is where Yancey’s Fancy is located. There are wetlands there and we’ve applied to the Army Corps of Engineers for reclassification because, right now, the road has a big curve in it,” he said. “Once we get that approval, we can continue on to Phase 2 and Phase 3, which will consist of more retail and more apartments.”

The development’s location is the GCEDC’s Buffalo East Technology Park in the Town of Pembroke’s Interchange District.

Fancher said he and his brother, Jeff, company vice president, plan to reach out to companies such as Starbucks or Mighty Taco to gauge their interest in placing a store at the site.

Other referrals on tomorrow’s planning board agenda include:

-- Downtown design review for a new façade, lighting and signage on one side of the Batavia Tailors & Cleaners building at 33-39 Ellicott St., along with a new rooftop heating and air conditioning unit.

-- Downtown design review for the addition of four wall-mounted canopies, one large structural entrance canopy, new wall paneling and new freestanding signage at Fieldstone Private Wealth, 219 East Main St., at the intersection of Summit Street. The project is part of the New York Main Street grant program administered by the Batavia Development Corp.

-- Downtown design review of the Healthy Living Campus project in the city, with developers seeking approval to remove multiple buildings and construct new ones.

-- Site plan review and sign permit request from Zambito Realtors to convert a dwelling into a new realty office across from Applebee’s on Lewiston Road. The project includes siding, windows, and removing a breezeway to make it into an office with handicap ramp.

-- Site plan review and special use permit in a Commercial district for Alvamar Healthy Foods to use 1,000 square feet on the first floor of the Masonic Temple building at 12 S. Lake Ave. in Bergen for freeze drying, warehousing and shipping of healthy snacks.

Owners Eddie Alvord and Michael Marsocci’s application indicates that Phase 2 would be the addition of retail space in the front area of the building to dispense healthy snack foods with no preservatives.

-- Site plan review for Tamara Parker to reuse an existing storefront at 22 East Main St., Corfu, for a sign and vinyl graphics business to be known as TMP Signs.

-- Special use permit for PCORE Electric, Inc., 135 Gilbert St., Le Roy, to build a 227 square-foot addition for an office.

Photo: Architect's rendering of Brickhouse Commons mixed-use building proposed by Fancher Properties of Akron near the intersection of Route 5 and Route 77 in the Town of Pembroke.

The project manager of the proposed Thwing Community Solar Garden project on farmland owned by the Gary W. Clark family at 7120 Thwing Rd., Le Roy, declined to address any future action following Tuesday night’s rejection of the 4.95-megawatt system by the Town of Le Roy Zoning Board of Appeals.

Contacted by telephone at his Corning home this morning, Ty Baccile, project manager/solar development for Washington, D.C.-based CleanChoice Energy, acknowledged that the ZBA’s vote against the siting of the solar system on 26 acres of a 62-acre parcel represents the end of CleanChoice Energy’s communication with local officials.

“As far as the Town of Le Roy goes, that is the last procedural step for CleanChoice Energy and the Gary Clark family to pursue the application,” he said. “We could proceed with an appeal to the New York State Supreme Court to review the ZBA’s response that we are not a public utility and to review the same points that we presented to the zoning board.”

When asked if CleanChoice Energy would be looking to appeal, Baccile said, “I can’t comment on that at this time.”

Baccile has been working on the project for a couple years leading up to last night’s public hearing in front of the four-person ZBA at the Le Roy Town Hall courtroom.

The plan came up against a recently-passed solar ordinance by the Le Roy Town Board that restricted such projects to land zoned as Industrial, or located in the municipality’s Interchange Zone.

On Monday night, Baccile said a few neighbors asked “constructive questions” about the project, but said there were no controversial issues.

“We gave a PowerPoint presentation with lots of visuals to show both the Zoning Board of Appeals and the public just how suitable the site was and how special we believe it is – and the benefit to both agriculture and the landowners,” he said. “The landowners farm 600 acres in town and this would serve to help their farm out and also to show the different things you can do with the operations and maintenance plan with pollinators.”

Baccile said the solar farm was “barely visible” from the road and was formulated with appropriate setbacks.

He said the current zoning as it pertains to community solar farms is restrictive to the point of infringing upon property owner’s rights to control the use of their land.

“If you were to look at a zoning map of Le Roy, the town is 80 percent Residential or Agricultural district and very little amount of Industrial,” he said. “Part of our presentation was to show them that if we were to move our project to an Industrial district and leave behind the opportunity for the Agricultural district and the landowner, that we would have a very difficult time because of the technological and environmental constraints that exist in the Industrial district.”

Calls and emails to ZBA Chair Stephen Barbeau were not returned at the time of the posting of this story. Barbeau is a non-voting member of the board; voting members are Tony Madeau, Mark Moochler and Jay Whipple.

Baccile cited concerns from the New York State Department of Environmental Conservation over the impact to wildlife, plants and wetlands in Industrial/Commercial zones and also mentioned the lack of appropriate electrical infrastructure in those districts.

“We wanted to show them that we could still follow the spirit and intent of their zoning – with how you site a project and doing it safely and following all the setbacks – but we just couldn’t place it in an Industrial district because of the lack of appropriate land,” he added.

Another issue was that the code stipulates the project fit the definition of a public utility, and the ZBA disagreed with that as well.

“The public utility aspect … started with a series of court cases in the early 1900s right to the late 1990s with various emerging technologies from electric power to steam to antennas to telephone towers. As they have merged, it has been identified that they don’t always fit in the zoning schemes, for the very reasons that we presented: the technical challenges,” Baccile said.

“As a result, zoning boards are allowed to relax some of the use variance rules related to landowners’ desires to dedicate some of their property for solar. But the ZBA declined to accept that thought process, and simply responded that they do not believe we are a public utility and since we are not a public utility, they will apply the standard methodology and denied our application.”

The vote was 3-0.

Baccile said the ZBA’s decision possibly could be challenged in the future as New York continues its push for more renewable energy.

“They have made it very difficult for them to achieve the goals of their solar plan, which are to distribute energy resources as called for by the state, and to promote the opportunities that exist per the state’s legal mandates for the electric generation transmission by 2025,” he said.

Le Roy Town Supervisor James Farnholz, who cast the lone “no” vote to the town board’s solar zoning code ruling, said today that he felt a compromise could have been worked out when considering the Residential and Agricultural districts.

Farnholz agreed that the solar code is restrictive and mentioned that trying to place solar farms in Industrial or Interchange (by the Thruway) districts would be more expensive.

“It’s not that there isn’t significant property available for solar companies to use. There is about 20 percent, I think, outside of Residential and Agricultural, if you combine it all,” he said. “But it’s going to be more expensive because it’s not flat, tilled ground that you can just come in and throw solar panels on. The available land is going to require more site preparation and that will cost more.”

If it was approved, the Thwing CSG would have qualified for the CleanChoice Community Solar program, generating enough energy to power 800 to 850 homes in the Town of Le Roy and surrounding areas, Baccile reported.

Photos: Visual simulations of the proposed Thwing CSG project that was turned down by the Town of Le Roy Zoning Board of Appeals on Tuesday night. Submitted by CleanChoice Energy.