NYS Department of Environmental Conservation

Update: 6:30 p.m. -- See bottom of the story

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The chief executive officer at O-At-Ka Milk Products today said engineers at the Upstate Niagara cooperative-owned milk processing plant are prepared to present alternatives that would satisfy the City of Batavia and bring an end to a situation that is forcing the company to spend $25,000 to $30,000 per day hauling wastewater away from the facility.

The problem, however, according to Bill Schreiber, is that city management will not sit down with officials from O-At-Ka and the New York State Department of Environmental Conservation to iron out what he calls “a three-party solution that would be a win-win for everyone involved.”

Schreiber and John Gould, owner of Har-Go Farms in Pavilion and chairman of the board for Upstate Niagara, a consortium of 300 dairy farmers, spoke to The Batavian this morning.

They expressed their dismay over not being able to deposit all of its wastewater into the city’s Waste Water Treatment Plant and “a lack of urgency” from the city.

Gould brought this issue to public light at Tuesday night’s City Council meeting when he informed lawmakers of the staggering costs to haul the wastewater away from O-At-Ka.

Several minutes later, he learned from City Attorney George Van Nest that the municipality had no choice but to enforce a cease-and-desist letter it sent to O-At-Ka after discovering that discharge levels from the Cedar Street plant were above permitted limits.

Van Nest said the DEC sent a notice of violation to the city, threatening enforcement action and large fines because of the oxygen levels in the ponds.

Gould: 'There's Something Wrong Here'

Gould’s anger with the city’s stance came through in his comments earlier today.

“Back to the Council meeting, Mr. Van Nest, puts the fear of God into them with the DEC. So, everybody’s fearful of each other and we’re getting nothing done,” he said. “There was more discussion about who was paying for Christmas in the City then there was about the largest employer in the city and the economic impact upon it. There’s something wrong here.”

Contacted today, City Council President Eugene Jankowski Jr. said Council is leaving the matter in the hands of Van Nest, City Manager Rachael Tabelski and engineers working with the city.

“We’re following the advice of our attorney, which is basically telling Mr. Gould and the staff there that they are supposed to talk to the city manager and the city attorney. Those are the people that Council has delegated to address the issue.

“Mr. Gould is bypassing some things and that’s not really for me to say what he is supposed to do or not supposed to do, but we’re not going to comment on it. We’ll let the professionals handle it – the city manager, the engineers, the city staff take care of it.”

Schreiber: Pre-Treatment Plant Upgrade Underway

Schreiber, in his ninth year at O-At-Ka, said the company is about six to eight weeks away from completing a $6 million upgrade to its on-site pre-treatment facility – action that he said will bring an end to this impasse as the amount of Biochemical Oxygen Demand and Total Suspended Solids will return to acceptable levels.

Until that new pre-treatment facility is operational, O-At-Ka is taking a substantial financial hit.

When it was mentioned that the expense could be as much as $1 million over the next 40 days, Schreiber responded: “That puts our business at risk, it puts our customers at risk, it puts our employees at risk and it puts our farmer owners at risk. Absolutely.”

The CEO said he is aware that the city has to comply with its State Pollutant Discharge Elimination System permit, but is seeking for “a bridge” to get us to the start-up of the new treatment facility.

“And what we got in exchange was a cease-and-desist (letter from the city). We don’t understand the lack of cooperation coming out of the city,” he said. “And it’s our understanding that the DEC would be willing to work towards a three-part solution. We’ve sent several letters to the city and we’ve not received a response.”

Schreiber said there are four or five different alternatives that would serve to increase the dissolved oxygen levels in the city’s lagoons, which have yet to recover adequately following replacement of the air header system at the Waste Water Treatment Plant in late August.

“Some of them are routine maintenance; getting into the diffusers and lagoons and cleaning them. That would have an immediate impact,” Schreiber advised.

“There’s a device called a venturi, which essentially serves to incorporate oxygen into the lagoons. There are companies that work with hydrogen peroxide, which when added to the lagoons, breaks down into oxygen and water – and essentially elevates the oxygen levels in the lagoons.”

Furthermore, Schreiber said he “fundamentally disagrees that we’re putting the city and the city’s taxpayers at risk.”

Permit: O-At-Ka Would Be Responsible for Fines

He said the city is protected under Section III.4 of the Industrial Sewer Use Permit, as follows:

“If the User [i.e., O-At-Ka] discharges above its Permit thresholds to such a degree that it causes the Publicly Operated Treatment Works (POTW) to violate its SPDES Permit, the User shall be held responsible for the payment of any fines or penalties levied against the POTW. This is in addition to any extra costs associated with handling such discharges as provided for in the Sewer Use Ordinance.”

“O-At-Ka has told City officials both in writing and verbally that it accepts full responsibility for any fines and penalties issued by the DEC or any other regulatory body that are attributable to our discharges,” he added. “We welcome the inclusion of DEC in these discussions regarding regulatory liability.”

Schreiber said O-At-Ka is seeking “a comprehensive, long-term solution to this.”

“We’re not looking for a band-aid. We recognize that the city has to meet its use permit, and we want to be part of the solution. But there seems to be, in our view, a lack of urgency on the city’s part while we’re burning through cash. We would rather channel those dollars to a constructive solution than use them to haul wastewater away.”

He said there are implementable steps that can be taken at the Waste Water Treatment Plant that will allow for the easing of restrictions on O-At-Ka wastewater discharges without impeding the recovery of the ponds.

“O-At-Ka is not seeking permission to discharge indiscriminately to the city nor are we ignoring the impact high strength wastewater can have on the ponds.  However, we are very confident that there are engineering solutions that can wholly offset the impact and further accelerate the health and recovery of the ponds.”

City Manager: 'We Can't Allow Willful Violations'

The Batavian reached out by email to Tabelski and to the DEC’s press office for comment.

Tabelski, speaking to WBTA Radio earlier this week, said O-At-Ka is “an industry here that we value for their employment and for the use of the milk supply that comes from the farms. That’s not lost on me. But we cannot allow willful violations of permits at the city Waste Water Treatment Plant.”

She also said that O-At-Ka officials acknowledged what they need to get to “a place that allows their discharge to be at a permitted level.”

“Right now, they can be at their permitted level, but they have to truck many, many truckloads of waste away. That’s showing that their capacity isn’t in line with their production,” she said.

Schreiber is calling for a “technical conversation that going to lead us to a resolution of this problem.”

Gould agreed, stating, “Collaboration to us is getting the stakeholders in the same room and sit down and solve the problem."

Schreiber said the O-At-Ka board of directors have approved $35 million in capital spending for 2021 and 2022, but “we’ll have to look really hard at where the next capital investment goes.”

He said completion of the pre-treatment facility will result in a permanent fix.

“As I said, we’re just looking for a bridge, and we can’t seem to get cooperation from the city,” he said. “The city seems to be blaming DEC; everybody but themselves, quite frankly.”

Update:

Comment from City Manager Rachael Tabelski: "In response to your inquiry, there continues to be an ongoing and open dialogue between city officials and O-AT-KA regarding discharge issues at the Waste Water Treatment Plant. As we also have communicated, public health and safety as it pertains to these discharge issues is our number one priority so that the WWTP is operating within all its regulatory obligations."

Statement from NYS DEC: "The New York State Department of Environmental Conservation (DEC) remains committed to working with all involved parties to develop and implement necessary solutions to address these issues. DEC will continue to meet with the city and O-At-Ka Milk Products regarding technical and infrastructure needs, and will convene additional meetings with these parties as these efforts progress."

Photo at top: O-At-Ka CEO Bill Schreiber and Upstate Niagara Chairman of the Board John Gould in front of the new equalization tank that is part of the company's ongoing upgrade of its pre-treatment facility. Photo by Mike Pettinella.

Previously: City sends 'cease and desist' letter to O-At-Ka Milk as issues at waste water treatment plant continue

Submitted photo and press release:

The recent infestations of the gypsy moth (right photo) (also known as Lymantria dispar dispar -- LDD) and emerald ash borer -- EAB (also known as Agrilus planipennis Fairmaire), along with other pests and diseases, have been the cause of a lot of concern in Western New York recently.

The adult gypsy moths are emerging. While the initial damage from their caterpillars is done for this year, now is a great time to learn about how to reduce or mitigate damage that may occur from next year’s caterpillars.

Genesee County Soil and Water Conservation District, along with our partner the NYS Department of Environmental Conservation, will be hosting a FREE online webinar on Wednesday, Aug. 4th, at 7 p.m. on Zoom.

NYSDEC forester Gary Koplun will present about ways to manage the gypsy moth, as well as speak about the emerald ash borer and other issues that stress trees.

There will be an opportunity for questions as well as resources provided.

You can register today by visiting the Conservation District's website.

Update from DEC, June 7:

While the spill is contained to the inlet with no impact on the lake, the contractor continues to skim diesel fuel from the surface of the water. DEC’s oversight of the cleanup efforts will continue until the cleanup is complete. 

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The New York State Department of Environmental Conservation is investigating a possible petroleum spill into the inlet on the west side of Horseshoe Lake in the Town of Stafford.

According to Jeff Wernick of the DEC press office in Albany, agency personnel on Saturday responded to a report of fumes and a spill, and immediately deployed containment booms, pads and a vacuum truck to skim diesel fuel from the surface of the water.

Crews from T&R Environmental of Painted Post are conducting the cleanup effort. Booms also have been set up in a ditch on nearby Seven Springs Road, not far from the intersection of Clinton Street Road in the Town of Batavia.

“The spill is currently contained and DEC’s oversight of the cleanup efforts will continue until the cleanup is complete,” Wernick said. “DEC’s investigation into the cause and amount of the spill is ongoing.”

Photo at top: View from Horseshoe Lake Road near the entrance of West Lake Road of the environmental remediation underway in response to a chemical spill; bottom, containment booms in a ditch on Seven Springs Road. Photos by Mike Pettinella.

The Genesee County Legislature this evening, with the blessing of local sportsman’s groups, unanimously passed a local law authorizing 12- and 13-year-old licensed hunters to hunt deer with a firearm or crossbow during hunting season under strict supervision.

“As a sportsman, hunter, mother and grandmother, this is a well advised and educated opportunity to continue the tradition that we have embraced in Genesee County,” said Legislature Chair Rochelle Stein upon passage of the law that coincides with a New York State two-year pilot program.

Stein was speaking at the legislature’s meeting at the Old County Courthouse and via Zoom videoconferencing – a session attended by several members of the Genesee County Federation of Sportsman’s Clubs.

Two of those GCFSC representatives were LeRoyans Mike Ciociola and Glen Adams, who had been following the process that resulted in the law becoming reality. The resolution was introduced last month after state lawmakers approved the program in accordance with Environmental Conservation Law. A public hearing today preceded the official vote.

“I am glad that the Genesee County Legislature went along with this and I would just like the public to know that this was an informed decision that was made,” Ciociola said. “I know some people, when they hear 12- and 13-year-olds, they’re worried. But the safety of this is in place as many other states have hunting at this age, and they have almost nonexistent incidences of 12- and 13-year-olds being involved in a hunting-related accident.”

Ciociola underscored the fact that state hunting officials, the Department of Environmental Conservation, and the NYS Fish & Wildlife Management Board have carefully considered this legislation.

“And our Federation of Sportsman’s Clubs represents about 1,200 sportsmen,” he said. “If you look at Genesee County as an average county and multiply it by all the other counties in the state, that’s a lot of sportsmen who have been through this.”

He said he is part of a group of people “who were raised hunting and taught our kids to hunt.”

“I think there are a lot of good safety protocols built into this – the wearing of blaze orange, having to be in a control distance of the youth at all times, no off the ground stands. There have been precautions taken and you have to understand that this is a two-year trial period. So, we’re confident that this is going to be good.”

During the public hearing, Adams thanked the legislature for moving the local law along quickly and emphasized the many supervisory aspects of the law.

Afterward, he mentioned the club’s ongoing hunter education, adding that he believes the law will lead to a natural flow of young hunters obtaining their licenses and receiving the required training to go into the field safely.

Legislators Christian Yunker and John Deleo spoke favorably of the proposal, pointing out that hunting is a “valued tradition” in the county and that bringing more youth into the sport is a positive step to continuing deer management practices.

Specifically, the local law allows hunters age 12 and 13 to hunt deer with a crossbow, rifle, shotgun, or muzzle-loaded firearm through Dec. 31, 2023, with the supervision of a licensed adult.

State requirements include the following:

• Such minor is accompanied by their parent or legal guardian, or by a person designated in writing by such parent or legal guardian on a form prescribed by the Environmental Conservation Department who is 21 years of age or older;
• Such parent, guardian or person has had at least three years’ experience in hunting deer;
• Such parent, guardian or person holds a hunting license;
• Such parent, guardian or person maintains physical control over the minor at all times while hunting;
• Such parent, guardian or person and the minor remain at ground level at all times while hunting;
• Such parent, guardian or person and the minor shall each display either a minimum total of 250 square inches of solid fluorescent orange or pink or patterned fluorescent orange or pink consisting of no less than 50-percent fluorescent orange or pink material worn above the waist and visible from all directions, or a hat or cap with no less than 50 percent of the exterior consisting of solid fluorescent orange or pink material and visible from all directions.

Members of the Genesee County Legislature’s Public Service Committee on Monday approved a local county law to allow deer hunting by 12- and 13-year-old licensed hunters with a firearm or crossbow during hunting season under the supervision of a licensed adult.

Designated as Local Law Introductory No. 1 Year 2021 of the County of Genesee, the proposed law will be subject to a public hearing, which is scheduled for 5:30 p.m. May 12 at the Old County Courthouse or via Zoom videoconference.

The law, if passed, enables the county to participate in the temporary New York State program to allow for young hunters (12- and 13-year-olds) to hunt deer with a crossbow, rifle, shotgun or muzzle loaded firearm through Dec. 31, 2023.

According to wording of the law, which was drafted by County Attorney Kevin Earl, the “hunting is a valued tradition for many families, and this new opportunity allows experienced, adult hunters to introduce the value of hunting to the next generation.”

“Furthermore, teaching young people safe, responsible and ethical hunting practices will ensure a rewarding experience for the youth, while providing quality food to families and contributing to important deer management population control practices.”

Legislators said they were reassured by the law’s parameters regarding supervision, which include requirements that the parent, guardian or person must be at least 21 years old, has had at least three years’ experience in hunting deer, holds a hunting license, and maintains physical control over the minor at all times while hunting.

Legislator Marianne Clattenburg said she supports the law due to the significant increase in the number of deer in and around the City of Batavia and that it encourages young hunters. Legislator Christian Yunker said the law is backed by the regional fish and wildlife committee and he is pleased to see that it is heavily regulated.

Other requirements as mandated by New York State are as follows:

• Such is accompanied by their parent or legal guardian, or by a person designated in writing by such parent or legal guardian on a form prescribed by the Environmental Conservation Department who is 21 years of age or older;

• Such parent, guardian or person and the minor remain on ground level at all times while hunting;

• Such parent, guardian or person and the minor shall each display either a minimum total of 250 square inches of solid fluorescent orange or pink or patterned fluorescent orange or pink consisting of no less than 50-percent fluorescent orange or pink material worn above the waist and visible from all directions, or a hat or cap with no less than 50 percent of the exterior consisting of solid fluorescent orange or pink material and visible from all directions.

The City of Batavia is taking a “fix it before it breaks” approach to upgrading the internet functionality at its facilities.

City Council, at its Dec. 14 Business Meeting, is expected to vote on a resolution to contract with an internet provider to equip the municipality with a secure, high-speed fiber connection.

Interim City Manager Rachael Tabelski reported at last week’s Conference Meeting that she received nine proposals, including bids from local companies Empire Access, Spectrum and Marchese Computer Products (in tandem with another firm).

Tabelski, in a memo to Council dated Nov. 17, wrote that the current point-to-point/multi-point radio controlled wireless system that connects City facilities shows signs of aging (it is believed to be at least 12 years old) – and is beset by "sporadic internet connectivity and very slow connection speeds.”

She also emphasized that if a radio should malfunction completely, the cost to repair it could climb as high as $35,000.

Council President Eugene Jankowski Jr. said the City should “get ahead of it before it breaks down and we have to fix it.”

The resolution set to come before Council calls for the board to approve a long-term service agreement with the selected provider (to be determined). Originally, Tabelski planned for a capital cost not to exceed $25,000 to complete the internet fiber project.

In another development, Council forwarded a resolution to the Dec. 14 Business Meeting that grants the New York State Department of Environmental Conservation access to a small parcel of the Dwyer Stadium property at 267 Bank St. for environmental contamination cleanup in connection with remedial work at the Batavia Iron and Metal site next door, at 301 Bank St.

Previously, the DEC was given permission to access land at 299 Bank St., which also is part of the Dwyer Stadium property. Additional remedial work is scheduled for that parcel as well.

Tabelski, in a memo dated Nov. 16, wrote that the DEC expects minimal disturbance in the Dwyer Stadium parking area (267 Bank St.). She said the DEC plans to solicit bids for a contractor next spring and start work in the late summer or early fall.

City Attorney George Van Nest said that the city will be protected through insurance and access agreements with the chosen contractor.

A letter from the DEC to the city indicated that remedial activities generally will include “excavation and offset disposal of contaminated soils and sediment, soil sampling, backfilling excavations with clean soil, surveying and property restoration.”

The DEC is responsible for all expenses involved in the cleanup operation.

Owners of property in the City of Batavia identified as archery-only hunting zones in an approved deer management plan say they are either noncommittal or not willing to participate in any culling operation.

The Batavian contacted four residents and previously obtained comments from a fifth, Noah Majewski of Alexander Road, who spoke at Monday night’s City Council meeting.

At the meeting, Council members voted in favor of the City Deer Management Plan, a 25-page document that puts the Batavia Police Department in charge of selecting and registering hunters, forging cooperation agreements with landowners and other related responsibilities.

The plan is set up to mirror, to some degree, a deer management program run by the police department in the Town of Irondequoit, and came to fruition after eight months of work by a now defunct Council-appointed City Deer Management Plan Committee.

Police Chief Shawn Heubusch reported that he will be reaching out to citizens who own land near and around three of the five designated areas where deer congregate to see if they wish to permit hunting on their property.

Those areas are:

-- Unit 1: A parcel north of Clinton Street, owned by the Reinhart family.

-- Unit 2: About three acres at the end of Northern Boulevard stretching north of Evergreen Drive, owned by Assemblyman Stephen Hawley;

-- Unit 3: Five acres west of State Street (across from Batavia High School), with the majority owned by Duane Preston and another acre for hunting owned by Russell Nephew. (Nephew had served as spokesperson for the deer management committee that resigned last month over miscommunication involving changes to the plan).

The other two zones are city property:

-- Unit 4: Route 98, south of Walnut Street area near the Waste Water Treatment Plan, and adjacent to land owned by Majewski;

-- Unit 5: Law Street (about one and a half acres), east of the city’s Yard Waste Station going toward Tonawanda Creek.

The plan stipulates that city employees only will be permitted to hunt in Unit 4 and Unit 5.

Interim City Manager Rachael Tabelski responded to an email asking about liability insurance by forwarding the NYS General Obligations Law (GOL 9-103).

The law provides general liability protection to landowners who allow a number of types of recreational activity on their lands, including hunting, provided that the landowner is not receiving a fee for providing that access, and also provides that the owner does not owe a duty to users or assume liability for injuries, and does not attach gross negligence of the owner.

“As we move toward implementation of the plan, we will look into this further as we engage with potential landowners with the collective goal of reducing the deer population in our city,” she said.

Concern over liability in case of injury, for example, seems to be the main reason why a couple of the landowners are apprehensive about getting involved.

-- Hawley said he received information about the plan a couple months ago from Samuel DiSalvo, also a member of the deer management committee, but hasn’t had a chance to look them over.

“I’d have to take a look at the specifics of it … I have a dog and grandchildren, so there is some concern, but at the same time there are certainly a plethora of deer, and they’re bold,” he offered.

He acknowledged that there is a deer problem.

“It’s something we’ve talked about forever -- and if this is a plan that looks as though it could work and cull out some of them, then that’s a positive thing.”

-- Jerry Reinhart Jr. said he hopes that the program will be able to “make a dent” in the large deer population, but the property owned by his family is big enough for only a couple people – “and our family hunts on it.”

Thus, he said that parcel of land would not be available for the city’s deer management plan.

-- Preston, owner of Preston Apartments in Batavia, said he is waiting for official paperwork from city management and would forward that on to his attorney for review.

“I’ve seen all the people bailing out on this so I would have to get attorney approval at this point as far as liability involved with people being on your property – if somebody gets injured,” he said. “So, I am not sure as far as the legality aspect of having individuals on my property with arrows.”

He added that he isn’t ruling out participating in the program.

“I am affected by the deer issues on my property. I can well attest that the deer have a grand buffet on my bushes,” he said.

A resident of Carolwood Drive on the northeast side of the city, Preston said there were only four or five deer in that area when he moved there 23 years ago.

“But now, there are 25 deer just roaming through the back of Hawley’s land all the time. They go right up through North Street, over to Allenview Drive down Garden Drive, and it’s the same with State Street (where he owns an apartment building across from the high school) and at my Parkview Apartments on Pearl Street. Three of my properties in the city are affected so I know it’s an issue.”

-- Nephew went a step further, stating that he wants no part of the program, evidently still displeased over the way things turned out between the committee and city leaders.(See the links to previous stories below).

“I don’t want anybody on my property,” he said.

-- Majewski said liability issues will prevent him from getting involved.

He said he was concerned that someone might get hurt, and was upset by the fact that people trespass onto his property.

He added that he runs “nuisance beaver traps” with a nuisance beaver permit from the NYS Department of Environmental Conservation. He said the traps are set around a swamp and he would hate to see someone step in one of those traps.

“I just feel like this is opening up a whole new can of worms to bring more people into an area that’s populated with people, that has people running around there," he said. “It’s a big area of concern for me. I have a fiancée. She hunts with me. She hunts on the ground. I’m also worried about her being on the ground and people not shooting safely around her.”

DEC Weighs in on Police-Run Plan

An email was sent to the DEC about the city’s decision to have its police department coordinate the program.

Its response:

“The City would be the managing lead and administrator if they were to develop a police run hunt. If the City police managed a localized hunt it would provide more direct regulation related to deer that travel onto lands outside the jurisdiction of the hunt.

“Unless the City of Batavia seeks a special permit from DEC for additional harvests, opportunities or methods, via the Deer Management Assistance Program or Deer Damage Permit program, then their hunt program would simply fit within the framework of our general deer hunting regulations (seasons, tags, implements, etc.). Batavia may opt to set specific controls that are more restrictive than State regulations, but they could not be more liberal.”

Previously: City Council seeks public input as it forwards deer management plan to its August meeting

Previously: Council, manager attempt to smooth things over with their deer management plan committee

Previously: BREAKING: City's deer committee resigns in 33 second meeting this morning

Previously: Police department to manage Batavia's deer culling plan that places restrictions on city property

Watch out, Bambi. The City of Batavia is coming for you.

A three-phased plan intended to harvest up to 60 deer per year with archery-only hunting is expected to be presented to City Council at its Conference Meeting at 7 p.m. Monday at the City Hall Council Board Room.

According to memo dated July 6 from Acting City Manager Rachael Tabelski to Council members, the City’s Deer Management Plan Committee, formed in November, has completed its task in the form of a 21-page plan to reduce the deer population within the City limits. The committee was created in response to numerous incidents of property (landscaping/garden) damage, auto accidents and other problems caused by deer.

Working with Robin Phenes, state Department of Environmental Conservation wildlife biologist, and Council Member John Canale, the five-member committee, per the memo, has drafted a proposal that “provides a streamlined program experience and ensures programmatic compliance, program metric tracking and stakeholder/City Council communication.”

In simpler terms, the plan specifies the time frame, five designated hunting zones, and rules and regulations, and includes permit applications, landowner cooperation agreement, hunter applications, waivers and release forms and a proficiency test.

Tabelski spelled out several highlights of the plan:

-- Plan A, hunting during the New York State regulated hunting season; Plan B, an extended hunting season (Jan. 2-March 31); Plan C, archery hunt utilizing bait (subject to Council approval). Times for hunting will be from sunrise to 2 p.m., with no hunting when schools are closed.

-- Five designated hunting zones as identified on an included map, as follows: (1) parcel north of Clinton Street, (2) land in the Naramore Drive area and north, (3) property west of State Street (in vicinity of BOCES) and proceeding north from Lambert Park, (4) Route 98, south of Walnut Street area, and (5) Law Street area stretching almost to Kibbe Park.

-- Hunting will be permitted only after the landowner signs a cooperation agreement form.

-- Tree stands must be used and all hunters must shoot downward. Hunters must be properly qualified and licensed and apply to the City of Batavia to be admitted into the program.

-- The plan is subject to NYS DEC setback requirements pertaining to the proximity of bow hunting to schools, playgrounds, public buildings, etc.

-- The program will run for three years and can be terminated at City Council’s discretion.

Citizen members of the committee are Russell Nephew, Gus Galliford, Fred Gundell, Kent Klotzbach and Samuel DiSalvo.

Council will be asked to vote on forwarding the resolution to a future Business Meeting.

Other topics on Monday’s Conference Meeting agenda:

-- A draft resolution to grant approval to Eli Fish Brewing Co. at 109 Main St. for a temporary outdoor dining license agreement as part of the City’s COVID-19 2020 Temporary Outdoor Dining on City Property Program.

Eli Fish’s application specified that 12 tables, serving up to 52 guests, will be placed in Jackson Square, with hours of operation set at 11 a.m. to 10 p.m. Monday through Saturday.

A memo from Tabelski dated July 7 indicated that while the Eli Fish application qualified for consideration, an application from Main Street Pizza at 206 Main St. did not and is not recommended for approval.

Vic Marchese, owner of Main Street Pizza, had proposed to put up a 15-foot by 75-foot tent, with lighting, in the parking lot on the east side of the restaurant – utilizing seven to eight parking spaces. Eight to 10 tables, accommodating up to 60 guests, were to be placed under the tent.

Tabelski spelled out several reasons why the plan would not be feasible:

-- Per the state Building Code, a tent can not be put up within 20 feet of lot lines, a parking space, buildings, etc.;
-- The City does not own the entire parking lot;
-- The application removes several prime parking spaces, including handicap spaces;
-- The one-way street would require a traffic order and, for a temporary dining basis, the City would not be able to facilitate a Local Law change in a timely fashion;
-- A traffic safety issue would occur due to cars coming into the lot off Main Street and backing out of parking spots.

Tabelski wrote that she advised the applicant of the potential problems, but he “was not interested in modifying the application.”

A draft resolution for the Main Street Pizza request is not included in the meeting document packet.

-- A pair of draft resolutions concerning a feasibility study for the construction of a new police station at the Alva Place location and corresponding contract with an architectural firm to conduct the study.

The first resolution asks City Council to transfer $50,000 of the $242,820 in the Facility Reserve fund to an expense account.

The second resolution seeks execution of a contract for $41,200 with Architecture Unlimited LLC, of Williamsville, to provide the recommended square footage, design and layout, ability to expand, regulatory requirements and projected costs for design and construction for both the site work and the actual facility.

-- City Council will conduct a Business Meeting after the Conference Meeting. Agenda items for that session include a resolution to enter into a $328,200 contract with Keeler Construction for the Franklin Street-Richmond Avenue sewer rehabilitation project.

The cost is significantly less than the original estimate of $806,000 because the City altered its plan from a complete sewer line replacement on Franklin Street to an excavated repair of one section and relining of the rest of the line, and then to include relining of the Richmond Avenue sewer ahead of its rehabilitation project in 2022.

While some restaurants have been able to utilize their patios and decks to increase the number of customers during the COVID-19-induced 50-percent capacity phase, others without outdoor dining areas are limited by their four walls.

Batavia City Council members don’t think that’s fair and they are looking into a way to temporarily provide municipal space for dining establishments to serve their customers under sunny skies.

Acting City Manager Rachael Tabelski opened a discussion on the subject at tonight’s Council meeting at City Centre Council Chambers.

“I just wanted to update Council tonight and take your temperature on moving forward with the potential of outdoor dining expansion of restaurants that do not have their own capacity to expand on their own property,” said Tabelski, adding that Phase Two of the state’s reopening plan allowed for outdoor dining.

She said that many restaurants in Batavia took advantage of that and expanded on their own property, but just as many don’t have that option. As a result, three restaurant owners have contact City officials to see if it would be possible to expand onto City-owned property.

Since then, the Finger Lakes Region, which includes Genesee County, has moved into Phase Three – permitting restaurants to have on-premise dining with a maximum of 50-percent occupancy.

Tabelski said the topic also has been discussed during an economic development COVID recovery task force comprised of representatives of the Batavia Downtown Business Improvement District, Batavia Development Corporation, the City of Batavia, Genesee County and the Chamber of Commerce.

She also said there is guidance from the New York State Liquor Authority authorizing this, prompting her and City Attorney George Van Nest to draft an application that would be subject to review by City Council.

If approved, the dining establishment, after acquiring proper liability insurance, would be granted a temporary license to operate outdoors on municipal space.

Van Nest said the approval would constitute a “license agreement, not a license or permit, per se, but the actual ability to use that property … consistent with an event application.” He said the liquor authority requires the municipality to submit an application covering those properties and having an adjoining license certification from the restaurant.

Council Member John Canale said he has been thinking about this type of action during his trips around the City.

“To me, this is an absolute no-brainer,” Canale said. “It’s nice to see these restaurants getting creative (by using the sidewalks) and I hope that we as a City allow them to continue to do this for a period of time … Because their capacity is limited to 50 percent inside, if they can gain in nice weather the outside access, it would make up for that.”

Council members Kathleen Briggs and Patti Pacino said they agreed with Canale, while Council Member Jeremy Karas took it even further, suggesting that this could become a seasonal thing.

Council President Eugene Jankowski also said he thought it was a good idea as long as any expansion didn’t interfere with other businesses. He stopped short, however, of endorsing an annual benefit, stating that that was a discussion for another time.

After Council Member Rose Mary Christian said she also was on board with a permanent arrangement for using City land, Van Nest advised that it could evolve into the City requiring a lease agreement and trigger possible assessment implications.

The debate ended with Council asking Tabelski and Van Nest to get the application to Council members as soon as possible for placement on the agenda of their next meeting on July 13^th.

In other developments, Council:

-- Heard a report from Karas and Public Works Director Matt Worth that City crews and the state Department of Transportation will be joining forces to replace the sunken manhole covers on Route 98 (Oak Street).

Karas said the covers are causing excessive noise in the area, especially when tractor-trailers coming from or going to the Thruway exit roll over them.

Worth said the DOT has agreed to provide traffic control while City workers replace about 10 manhole castings that are in the driving lane and, finally, get rid of the “clunk-clunk times 100” sound that reverberates through homes along the way.

The tentative schedule calls for the new manhole castings to be replaced in August.

“We will be resetting (them) so they’re flush and then DOT will pave them in that area,” Worth said. “Hopefully, they’re nice and smooth … they’ll fit tight and the noise goes away.”

-- Heard a brief report from Canale that the committee charged with looking into the deer population problem in the City is almost ready to address Council with its recommendations.

Canale said the state Department of Environmental Conservation made a few changes with the wording and has given the City a deadline of Aug. 1^st to submit its application.

Calling it a “great plan,” Canale said the committee desires to have guidelines in place by the start of hunting season this fall.

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Following the meeting, Jankowski was asked if Council had discussed a plan to find a replacement for Martin Moore, who left his position as City manager on Saturday by what was publicly announced as a “mutual agreement.”

“We haven’t discussed it as a Council, but I know that City staff are doing research and they’re going to provide that information to Council so that we can make a decision as to how we want to go forward,” Jankowski said.

After it was mentioned that the City would get a “free search” from Novak Consulting Group since Moore's tenure lasted less than two years, Jankowski said, “if that is the case, then that’s definitely an option that we’d have to consider.”

The City contracted with the Ohio firm to coordinate the search in the summer of 2018.

Deer are taking up residency in the City and the time has come to do something about it.

That’s the message conveyed by City Manager Martin Moore, Ph.D., at tonight’s City Council meeting as he outlined potential steps to reduce the number of deer and the difficulties they are causing for homeowners.

“Indicators are showing that deer are establishing residential ‘homes’ in the City and its seems to be increasing,” Moore said at the end of a report to Council about his discussions with officials of the state Department of Environmental Conservation and his call to form a new committee develop a plan of action.

Moore said he has received a “verbal commitment” from a DEC wildlife management specialist to come to a Council meeting next month to advise the board on the best way to proceed in culling the deer population.

“There are specialty types of controls (to ensure) a plan approved by New York State,” he said.

At the outset of the meeting, Council heard from Pat Cooper and Russell Nephew, residents of State Street in the vicinity of Batavia High School, who both said they have been confronted by deer recently (with the latter stating that she was actually chased into her apartment by a deer).

Nephew noted that the City has had an issue with an overabundance of deer for the past five years and said the predicament “is getting worse and has actually elevated to a new level of concern.”

“The City’s past Council has done investigations and surveys and they concluded there was a problem and agreed that action must be taken, as you do now,” he said.

He reported that the Town of Amherst had a similar situation between 2015 and 2017, and by virtue of special out-of-season hunting permits issued by the DEC, reduced the herd by 571.

“This is just one example of a possible solution to the problem,” he said. “By all of us working together, we can solve this problem.”

Nephew then took a local print media outlet to task for its publication of a satirical column last week, equating the deer to a West Side Story-like gang intimidating the residents of State Street.

“Instead of making an editorial joke of a situation that occurred, just report it as it happened,” he said. “I know all about your First Amendment rights, but your first responsibility is to your readers to bring them an unbiased representation of the event.

“Jumping right into an editorial opinion gathered from second- and third-hand information is unprofessional and unethical. Your quest to garner readers through your attempt at humor slid by this time, but will it lead to tragedy if the problem is ignored?”

Following the meeting, Moore elaborated on the steps going forward, adding that he hopes to have it in place within six months.

“Our exact steps right now is that tomorrow I will be asking the City Clerk to put out for applications for the public to be able to be on a deer committee -- it’s open to the public,” he said. “We’re going to ask them to get their applications in in a reasonably timely manner because as soon as we have enough qualified applications we will be getting them to a committee with the City Council for review – and as long as the individuals meet the residency requirements … they’ll be a recommendation that goes to the Council.”

Moore said that should Council vote to approve the establishment of the committee, they will set a first meeting right away and nail down a date (likely Nov. 12 or Nov. 25) for officials of the DEC’s Wildlife Management Division to address the board.

“They (the DEC) will look at how are urban structure is, they will look at some areas and ideas for dealing with the proper population-control measures – things that are safe, things that don’t either endanger or cause excitement at the public, but at the same time are effective,” he said. “Nothing is 100-percent guaranteed, obviously, when you take steps to control population.”

The city manager said an effective deer management plan is the goal – a strategy approved by City Council and then approved by New York State.

“Once that plan is approved at the state level, then we’re in a position to start talking about implementation,” he said. “And then we will be talking about the steps and timelines for implementation of ideas that come forward and are ultimately approved.”

As far as the extent of the deer population is concerned, Moore said he has “photographic evidence of fawns being born in people’s back yards … of deer coming out in the daytime as well as at night. We’re seeing them in every part of town.”

Moore said the wildlife specialists told him that other indicators of too many deer are when disease starts to come in and when deer show signs of being malnourished.

“But I don’t think we’ll see a nourishment issue in the City because, honestly, for deer it’s like coming to the supermarket,” he said. “We apparently grow some great stuff for wildlife. That’s going to be the challenge … how we balance this knowing the (number of) deer here and bringing it down to a manageable level.”

Photo: State Street resident Russell Nephew urges City Council to find a solution to the deer problem in Batavia. Photo by Mike Pettinella.