Benderson Development

Imagine that you return from work to find that a couple of people have parked their cars in your driveway. You don’t know them, and you cannot fathom why they’d just  decide to leave their two-ton possessions on your property for a few to several hours. 

Now move this scenario onto the property at the former Kmart parking lot at Lewiston and Park roads in Batavia. Benderson Development Corporation owns the space, and rented it out to Batavia Downs for its summer concerts from June through August, reverting it back to a no-parking zone once the season was over.

Signs have been posted and chain barriers have been put up, to no avail. People have persistently ignored the signs and even boldly moved the chains to park in the lot anyway, Steve Grice says.

Yes, people have been blatantly parking in someone’s private driveway. It happens at other locations as well, he said, but it's usually one or two vehicles versus several that end up at the Kmart lot.

If you think that Benderson is being unreasonable about its policy, there’s valid reason for it, Grice said. Last winter a motorist parked in the lot and allegedly tried to file a damaged vehicle claim. All bets were off — and a stricter no parking policy was attempted through signs with warnings that unauthorized vehicles would be towed away by Dan’s Tire & Auto.

That’s how Grice, the towing operations manager, got involved. It came to a head this Monday, when a dozen vehicles were illegally parked in the lot, and the development company could either have those motorists charged with trespassing or towed away, Grice said. "Twelve cars got towed," he said.

He has been getting complaints from people and wants everyone to know that “we’re just doing our job.”

“We want the public to know that we didn’t make the call,” Grice said Wednesday. “The property owner contacted us to do our job. As of today, we have not had any vehicles left beyond 24 hours.”

The fee for ignoring those posted signs is $233 for the first 24 hours, and $50 a day after that. Grice finds it hard to believe that “people are being disrespectful” of the policy just to walk across the road to Batavia Downs, especially when that facility offers free valet service.

Benderson Development did not return a call for comment.

Photos by Howard Owens

Tropical Smoothie (the business name speaks for itself) and Jersey Mike's (a sub shop) are heading to Batavia, according to paperwork filed by Benderson Development with the Town of Batavia Planning Department. 

The food chains will be part of the two buildings planned for the currently vacant former Kmart parking lot, Code Enforcement Officer Daniel Lang informed the Town of Batavia Planning Board on Tuesday night.

After the meeting, Lang said he couldn't confirm that Starbucks is also one of the planned chains for the new development.  He said Benderson has yet to file any development plans that explicitly include Starbucks.

That's been the rumor, and a "coffee shop" is listed as the drive-thru occupant for one of the two planned buildings on the property, but Lang said in an interview after the meeting that he has nothing official to say that the coffee shop will be Starbucks.

Benderson is planning two buildings in the parking lot. Each will have a drive-thru and contain more than one business.  Benderson has so far indicated that one building will contain the coffee shop, Tropical Smoothie, and Jersey Mike's, but no occupants have been submitted yet for any portion of the other building on the property.

"They have approval for two outbuildings in front of the Kmart," Lang said.  "We only have the permitting right now, everything paperwork-wise for the building shell for the one building, and these are two of the uses going into that one building."

He told the board, "I don't have anything on the second one yet. Once I get it, I will advise you guys of what they are and we'll move forward."

There's no word yet on what might become of the hulk of the building that used to be Kmart on Lewiston Road.

The Town of Batavia engineer says he has cleared up miscommunication with the Lewiston Road businessman who has been speaking out against the proposed construction of a pair of restaurants with drive-thru lanes on the south side of the former Kmart parking lot near Park Road.

Steve Mountain today addressed comments made by pizzeria owner Jerry Arena earlier in the week. Appearing at the Batavia Town Board meeting, Arena said that it was his impression that the town was requesting Benderson Development Corp. to resubmit its plans.

Arena has charged Benderson with submitting what he calls a “falsified application,” primarily referring to the company checking boxes on its documentation that there are adequate bicycle lanes and pedestrian walkways along the Lewiston Road corridor extending to Veterans Memorial Drive.

During the meeting, Arena said that Mountain indicated, in a phone call to him, that the town was looking for a revised application from Benderson. Town Supervisor Gregory Post responded by saying that he wasn’t aware of that.

“… the town engineer told me that Benderson was going to have to resubmit their application. And I was going to ask you guys about starting that process all over again,” Arena said.

He went on to say that he was very disappointed that town officials don't grasp that traffic is going to be much worse.

“I'm kind of in shock here. I was really happy that maybe …you're coming to a realization that it's a safety issue – a severe safety issue,” Arena said, reiterating that he continues to consider filing a temporary injunction to block the proposed development.

Contacted today, Mountain said he told Arena that Benderson needs to submit its engineering plans to him.

“The Town Planning Board approves the project contingent on my final review and approval, which is typical for every project,” Mountain said. “We'll go back and forth with the plans – review them and have some minor comments. All that engineering stuff – water and sewer and all those things.”

But as far as Benderson having to submit a new project application, Mountain said that is not the case.

He said he spoke with Arena a couple days ago and “better explained to him” that no new application was coming – just a revision of the engineering comments on the plans.

When asked if he thought there was a safety issue with the traffic in that area, Mountain said a traffic study consultant and state Department of Transportation officials had no concerns.

“We did note, in my comments back to them, however, that we need to look at – with the DOT – the southbound lane on Lewiston, where there’s only left turn arrows to the old Kmart,” he said. “We feel that should be left and right turn arrows, similar to what is near Tim Hortons and Tops. That’s the only thing, traffic-wise, that we’re looking at.”

Mountain said that the Park Road Reconstruction Project has resulted in more vehicle congestion, but he sees traffic flowing better once that is completed.

“The DOT will be going around the county, updating things, but we feel the Lewiston Road/Route 5 section is still acceptable,” he said.

He did mention that the town’s future projections include a new road from Lewiston Road to West Main Street Road (Route 5), north of the current intersection.

“That’s in our Comprehensive Master Plan,” Mountain said.

After Town of Batavia Planning Board members gave the final approvals to Benderson Development for two new commercial buildings in the former Kmart parking lot on Lewiston Road, they had but one question: "who is it?"

The rep from Benderson wouldn't say.

He said he couldn't release the names until leases are signed. He said that lease signing could come soon for at least one potential tenant, with construction to begin on that building in July.

Benderson is planning:

• A 4,000-square-foot restaurant with a drive-thru and bypass lane to be located in the southwest corner of the property;

• A 6,752-square-foot retail/restaurant building with a 2,000-square-foot endcap coffee shop with drive-through in the southeast corner of the property.

On Tuesday, the planning board approved the project's environmental review, special use permit for a drive-through, and site review plan.  With those final approvals, Benderson is ready to sign agreements with the intended tenants of the buildings.

Before the vote on the special use permit, Chairwoman Kathy Jasinski noted that the only opposition had come from pizza shop owner Jerry Arena, who objected to the entire project.  She said it was her understanding that Arena had modified his position and town engineer Steve Mountain said that is correct. 

"He's not here tonight so I'm assuming that he's okay with that," Jasinski said. "So we really don't have any opposition." 

UPDATE: Jerry Arena said he was not aware of the meeting and that his position hasn't changed at all.  He still opposes the project.

Calling it “a horrible idea,” Batavia businessman Jerry Arena tonight urged the Town of Batavia Planning Board to turn down a proposal by Benderson Development LLC to construct two restaurants on the parking lot of the former Kmart on Lewiston Road.

Arena was the lone town resident to speak at a public hearing on the Buffalo-based company’s request for special use permits for the drive-thru lanes of the yet-to-be disclosed retail operations. The planning board made it clear prior to the meeting that no action would be taken on the venture tonight.

Benderson is looking to build a 4,000-square-foot restaurant with a drive-thru and bypass lane at one end of the parking lot and a 6,752-square-foot retail/restaurant building with a 2,000-square-foot endcap coffee shop and drive-thru at the other end – both along Lewiston Road (Route 63).

Matthew Oates, engineering director, and Katherine Rowe, design engineer, for Benderson Development opened the meeting by giving a quick update on the company’s plans, mentioning an increase in the green space and landscaping, putting in new curbing and pavement, updating utilities and ensuring sufficient stacking space in the drive-thru lanes.

They said they are waiting on the completion of a traffic impact study – information necessary to keep the project moving forward.

Arena questioned if there would be enough parking spaces left over to accommodate shoppers once another business was found to occupy the former Kmart building.

After that, he was given the podium and articulated his concerns for about 15 minutes, visibly upset but able to keep his anger in check.

PROPOSAL 'AFFECTS' ALL CITIZENS

Armed with several documents, including the project application, Arena said “the mere fact that I got one (a notice of the public hearing) represents the fact that this special use permit affects my property at 8360 Lewiston Road (Jerry Arena’s Pizzeria) and my neighbors – the gun store, the car dealership, Calvin Nichols, the land that I have on Arena Parkway facing Lewiston Road.”

“I just shake my head when I see this and I'm trying not -- if I act like I'm going to be angry, if I'm perceived as I'm angry, it's because I really am. I'm just flabbergasted that this would get this far.”

Arena, citing an already congested traffic area and safety concerns, said that putting these new businesses at the front of the parking lot affects all residents of the town and city of Batavia and Genesee County.

“It affects them when they do their holiday shopping,” he said. “People who I talk to logically, and I say logically, assume that these three new businesses … it’s two buildings, three businesses. They logically assume that when the hear the news, they’re going to go into the old Kmart, which would be the best spot for them.”

He went on to say that he doesn’t “feel sorry for Benderson” because they can put the businesses in (the Kmart building).

“I don’t care how much it costs them and I don’t care if they’ve got to knock part of Kmart down and build a drive-thru,” he said. “This is what most people think – that it’s going to go into the old Kmart.”

‘PROBLEMS ON SEVERAL LEVELS’

Arena said the special use permit creates problems on several levels – “and I don’t even know where to start.”

“My main theme here is at what point do we stop creating and compounding traffic flows on Lewiston and Park roads?” he asked. “Surrounded by traffic flow problems with no sidewalks, this area of Lewiston and Park road will become more dangerous than ever for pedestrians, bicyclists and motorists.”

He said planners from years past “got it right” by wanting to place commercial enterprises onto Route 5, a four-lane highway.

“Well, things got turned around and OK, here we are,” he said. “There's big problems. I'm afraid to go down Park Road at night because one day I'm a law-abiding citizen and somebody might jump out at me from Batavia Downs and I'm sitting in my attorney's office facing a vehicle manslaughter charge.”

Arena said the entrance of the new businesses will come out onto Park Road – “as if Park Road isn’t a problem already.”

Noting that he has “a front seat” when looking out his pizzeria window, Arena said traffic is non-stop.

“You want to have a flea market, you want to put something next to my pizzeria, they don’t stop. They stop when the light turns red at Park Road and then you’re going to have to scoot out, because the light is going to change again. So, that’s my key thing here.”

He said that if and when Kmart is occupied again, the entrance and exit points on Lewiston and Park road “will not safely, safely, safely or adequately handle the additional 10,752 square feet of retail space.”

ARE THERE OTHER OPTIONS?

Arena said that as with an eminent domain situation, if planners have other options, “you’d think you’d want to use them.”

“Why can't you fill the Kmart … Batavia is really sought after right now,” he offered. “Batavia is a hot commodity between Buffalo and Rochester; people will come to Batavia.”

He also suggested placing the restaurants in areas where special use permits aren’t necessary, mentioning the Kmart building, property on Route 5 and land that he has for sale at the BJ’s Plaza on the south side of Lewiston Road.

Arena called out “the internet cowards” who say he is worried about competition.

“Oh, that’s really funny,” he said. “I’ve been in business since 1976. I’m not worried about another commercial business. I'm worried about the government more than anything. The government can put me out of business and they seem to be working at it.”

He said the “other swipe” at him is that he is mad because Benderson isn’t looking at the property he has for sale.

“My land for sale doesn’t need any zoning permit. It's at the intersection of Lewiston Road and Veterans Memorial Drive. It's in the BJ’s Plaza,” he said. “All the traffic will be regulated by the traffic light. It’s visible from Lewiston Road -- part of the BJs Plaza. And it’s for sale and doesn't require any kinds of permits.”

SAFETY IS A BIG ISSUE

Planning Board Chair Kathleen Jasinski interjected that a traffic study will be available for review before the board’s next meeting, and stressed that safety is a concern.

Arena said his premise is based on the fact that the former Kmart building is available.

“You can sit here all you want and say, ‘Well, we're filling a vacant parking lot. No, no, the parking lot isn’t vacant, the building's vacant.”

He said he disagrees with Benderson’s position that the project will improve the area and won’t result in a substantial increase in traffic above present levels.

“I don't see how that's mathematically possible,” he said.

Reading from an report in the application, Arena asked, “Are there any pedestrian accommodations or bicycle routes available at or near the site of the proposed action? Check mark, Yes. I don't see any sidewalks bicycle routes. Maybe I'm missing them. Maybe Matthew (Oates) can show me where he bicycle routes are."

“I see babies – two in one day. One in a wagon, getting pushed in the street and one in a stroller. And then you get your handicapped people. They’ve got their flags, and they’re driving their little thing. The mailman has got to be afraid of getting hit. At what (point) do we stop compounding? We've got a problem there.”

Arena said if Panera Bread, Popeyes or Starbucks want to locate in the town, there are spots for them other than the proposed site.

(A call and email to James Boglioli, Northeast director, right to build for Benderson, seeking the names of the businesses were not returned at the time of the posting of this story).

LEGAL ACTION A POSSIBILITY?

While hoping that the planning board votes against issuance of the special use permits, Arena said that he is prepared to take legal action to try and stop the project.

“There's a possibility that if you go through with this, I will file an injunction,” he said. “I've done it in the past and am familiar with that -- with Benderson putting BJ’s Plaza in a residential area, I fought it. I fought the good fight. I lost.”

He said he cares about the citizens of Batavia and reiterated that “it’s just a bad idea.”

Contending that zoning codes were adopted “with the purpose of protecting and promoting public health and safety," Arena said he believes his lawyers would have a “pretty good shot” at stopping the proposal.

In closing, he said he “hates to see this happen when there are other options.”

“Let's make Batavia safe again. Get your ducks in a row,” he said. “If you do issue a permit, get sidewalks. People walking down to Walmart, any of those things. It's a nightmare. It's got to be the worst commercial development possibly in the whole Western New York, if not the whole New York. It’s dangerous.”

Photos from tonight's Town of Batavia Planning Board public hearing at the Batavia Town Hall on West Main Street Road. Top: Jerry Arena, owner of Jerry Arena's Pizzeria on Lewiston Road since 1976. Bottom: Matthew Oates and Katherine Rowe of Benderson Development. Photos by Mike Pettinella.

Previously: Benderson director gives some details, but keeps the names of the Kmart parking lot tenants to himself