city centre

Two local reporters, including The Batavian's Mike Pettinella, detected unusual odors at City Hall this evening just as Monday's City Council meeting was about to start.

The reporters alerted the firefighters in the hallway who were there to check the temperatures of people entering the meeting and the firefighters agreed the odors were suspicous.

City fire was dispatched for the smell of natural gas.

Capt. Bob Fix said firefighters determined the odors were a combination burning leaves nearby and a cleaning solution being used in the adjacent dental office. There was no natural gas detected in City Centre by meters used to detect the gas.

Photos by Mike Pettinella.

Consultant Ed Flynn led a City Centre Feasibility Study open house last night, which was an opportunity for community members to weigh in on the future of the mall.

The performers are patiently waiting in the wings as, slowly but surely, the Downtown Revitalization Initiative project known as Main Street 56 Theater moves forward.

Project Manager David Ciurzynski of Ciurzynski Consulting LLC, of Attica, on Friday said the preliminary design work has been delayed by the coronavirus but, if everything breaks right, the theater will be able to open its doors to the public next summer.

“We’re trying to finalize the design that got held up a bit because of the COVID-19 requirements – (as we’re) looking to design it in a way that is flexible for social distancing,” Ciurzynski said. “And we’re also still looking for people for financing – to solidify that.”

He said the demolition work is almost done.

“The area is pretty cleared out, and ready to build,” he said, noting that the 11,000-square-foot facility will feature a dance studio, theater that seats 150, offices and storage rooms.

It will be located at 35 City Centre -- in space formerly used by the Dent Neurological Clinic office, between Genesee Dental and The Insurance Center.

Ciurzynski said that Batavia Players, the not-for-profit organization operating the theater, has hired Thompson Builds of Churchville as the general contractor. Thompson Builds has done extensive work in Genesee County, including construction of a new Town of Batavia firehall off Clinton Street that is happening now.

“We’re going to start, hopefully, in a couple months on the dance studio and then the theater after that,” Ciurzynski said. “We are waiting on some of our first reimbursements from the DRI for the work that we’ve done so far – we have to wait for the Department of State on that. But, hopefully, in the next month or so, we’ll be able to get some money from the state so we can keep things moving.”

He said the timetable has “the meat” of construction taking place in late winter and early spring.

“We’re trying to get through all of the pandemic requirements and making sure we have space for social distancing, and it’s a kind of reimburse-as-you go-along with the Department of State,” he offered.

The project is one of several awarded to the City of Batavia as part of the state’s $10 million DRI.

Since the total project cost is estimated at $910,000 and the DRI award for the theater is $701,750, fundraising will come into play, Ciurzynski said.

“Batavia Players will have to raise the difference, and will have to rely on the community to help them with that,” Ciurzynski said, advising that various fundraising efforts are underway.

Patrick Burk, president of Batavia Players, said the troupe is in the process of closing down its current location at the Batavia Industrial Center on Harvester Avenue.

“We will be reopening a new office and bringing in a bunch of new volunteers to assist state and local government officials on the project,” he said.

Batavia Development Corporation Director Andrew Maguire said the theater project aligns with the city’s “All In” effort which, in part, focuses on fostering arts and entertainment and cultural appreciation Downtown.

Renderings provided by David Ciurzynski, Ciurzynski Consulting LLC.

At Christmas, an enthusiastic city employee who thought the drip buckets in the mall wasn't a great look for the holidays, took it upon himself to put wrapping paper around the canisters.

With the holiday passed but his spirit undaunted, the employee recently wrapped the buckets in Valentine's Day paper. The employee is doing this at his own expense.

Still, Director of Public Works Matt Worth is concerned that some people might make negative comments about the employee so the employee is remaining anonymous. 

"Hopefully, this is the last hurrah for the buckets," Worth said. "We're going to get a new roof and the buckets are going to go away."

Reader-submitted photo.

A slightly revised lease for property owned by the City of Batavia in the mall for Batavia Players got a renewed objection by Councilman Bob Bialkowski and as was the case in February of 2018, Bialkowski was the lone dissenting vote to approve the lease.

Bialkowski objected to the lease at Tuesday night's council meeting, he said, because it didn't address issues he said were typically in commercial leases -- such as provision for a dumpster, snow removal, parking, after-hour usage, and utilities.

He said the lack of clarity on these issues could lead to a lawsuit against the city and that since it is the first of what may be more leases of city property in the mall, the right precedent needs to be set.

"In my opinion, a good lease makes for good business," Bialkowski said.

He made a motion to rewrite the lease but it failed for lack of a second.

City Attorney George Van Ness said the only change in the lease was an extension of the term in order to meet state requirements for Downtown Revitalization Funds.

The proposal by Batavia Players to move the Harvester 56 Theater on Harvester Avenue to 35 City Centre -- the former Dent Neurological Clinic office, between Genesee Dental and The Insurance Center -- at a total cost of $901,750, was approved by the governor's office as part of the $10 million DRI award to the City of Batavia last year. The state grant will cover $701,750 of the construction costs.

Van Ness said if the city renegotiated the lease to the degree Bialkowski proposed, the past year's worth of work with the state to get final approval for the project would be lost and the process would start from the beginning.

"This is a standard commercial lease," Van Ness said. "It's been used in the past for other properties. It's been approved by Dent counsel. It's been reviewed and approved by counsel for Batavia Players as well as the Department of State.

"So respectfully, it's a standard lease in terms and received prior approval by the council on February 12th, 2018. Many of these same questions were asked and answered at that point in time. They were addressed and council voted at that point seven to one in favor of the lease."

Councilman Paul Viele, a contractor and commercial property owner, told his fellow council members that the lease is a standard "triple net."

A triple net lease means the tenant assumes responsibility for not just the rent, but also all other property expenses such as property tax, insurance, maintenance and utilities.

"I don't think anyone understands that they (Batavia Players) are responsible for most of everything that Bob raises as an issue," Viele said.

The council approved the lease on a 7-1 vote, with Councilwoman Rose Mary Christian absent.

Press release:

The Batavia Police Department is investigating damage to the City Center, which occurred between 06/29/2019 and 07/01/2019. The suspects did not gain entry to the building but did damage the skylights in the mall concourse, after getting onto the roof.

The attached photos are individuals who may have information in regards to the investigation.

Anyone with information in reference to the case or who can identify the persons in the photos may contact Detective Eric Hill at 585-345-6373 or the Batavia Police Department at 585-345-6350, the confidential tip line at 585-345-6370.

Press release:

At its July 12th board meeting, the Genesee County Economic Development Center (GCEDC) Board of Directors unanimously approved providing $10,000 for a feasibility study to determine uses for the Batavia City Centre site.

The GCEDC is collaborating with the City of Batavia and the Batavia Development Corporation in conducting the study. The city and the GCEDC also are applying for funding from Empire State Development’s Strategic Planning Program for matching funds.

“We continue to strongly support economic development initiatives in the City of Batavia,” said GCEDC Board Chair Paul Battaglia. “The redevelopment of Batavia City Centre site is critically important to the efforts to bring more capital investment and jobs to the region’s urban center as it has such a prominent footprint in the city.”

The intent of the study is to evaluate various redevelopment scenarios for the site, including remaining as a retail center. Other components of the study may include site planning, engineering, architectural renderings, cost estimates, permitting and financial analyses. The study also is intended to build off of current plans that have been developed for the site through the DRI process.

“After a number of discussions with our partners on this effort, we came to the conclusion that a feasibility study would build upon and advance the goals of the Downtown Revitalization Initiative,” said GCEDC President and CEO Steve Hyde, who also serves on the DRI advisory group. “In essence, a study will help create a vision for what the site could be and we believe that the information and analysis resulting from the study will generate interest among the development community.”

I just stumbled on this video on YouTube --  "Hidden Vintage Mall: Batavia City Centre."

The show notes: A nice little find in the heart of Western NY, Enjoy!

The producer, Ace's Adventures, seems to take a keen interest in old malls.

He included a vintage Kmart commercial at the start, probably because of the connection with JCPenney.

Statement from City Manager Jason Molino:

“The trial has been postponed today, awaiting results of the Mall Merchants vote tonight on the settlement agreement. Both parties are to report back to the court Tuesday morning with the results of the settlement vote to determine next steps with respect to the court cases.”

By this time Tuesday, the year's long dispute between the City of Batavia and the City Centre Mall Association will be resolved, or the two sides will be in an Erie County courtroom.

A bench trial was scheduled to begin tomorrow before Erie County Supreme Court Justice Catherine Panepinto.

That date has since been moved to Monday, the same day the merchants are scheduled to hold another vote on the settlement.

City Manager Jason Molino, speaking on WBTA's Main and Center program this morning, says the merchants have held up the vote that had been scheduled for earlier this month.

“The merchant's legal counsel was the one who recommended the adjournment from October 2nd to the 23rd," Molino said. "They knew well in advance when the trial was, we did not suggest that nor did we agree to that.

"The judge, at this point in time, does not want to postpone because if the settlement agreement does not pass, the trial has to go on.”

The primary issue in the dispute is over who is primarily responsible for ownership and maintenance of the mall concourse.

The proposed settlement places the responsibility squarely in the hands of the city and provides some cash for roof repairs.

The City Council ratified the settlement in February of this year but the mall merchants never voted to approve the settlement.

If the merchants approve the settlement on Monday there will be no need for a trial and it would bring to a close a long-simmering dispute that has hindered any attempt to improve the neglected and crumbling concourse.

“(The settlement) null and voids all the other agreements," Molino said. "The inter-tangled web of it (the old agreements) are gone. That was the first term of the term sheet – all the existing agreements are null and void. All the things that created the mess we are dealing with are gone.

"We have very clear ownership, which is the city, very clear responsibility, which is the city. Very clear as to who is responsible for capital improvements, maintenance, and operations – it is one entity, the city. Right now, it is not one entity and that is part of the problem.”

Story via our news partner, WBTA.

Via our news partner, WBTA:

A trial date has been set in Erie County Supreme Court that would settle the dispute between Batavia City Hall and the City Centre Merchants Association.

WBTA has confirmed the two sides are scheduled for a bench trial on Oct. 20th before Erie County Supreme Court Justice Catherine Panepinto.

The basic dispute centers on responsibility for the mall’s continually leaking roof.

Last March the City Council approved an offer to the merchants that would have provided $650,000 dollars to repair the roof, silos and skylights over the concourse in return for the merchants dropping their lawsuit.

The merchants have never ratified the deal.

A member of the merchants association – who wished to remain anonymous – said the city has met all of the merchants’ requests but the association’s lawyers have advised against accepting the deal.

City Manager Jason Molino said the merchants are refusing to vote on the settlement terms that were negotiated last December. 

It is still possible the two sides could come to an out-of-court settlement by the Oct. 20 trial date.

The City and Mall Association have seemingly been on the verge of a settlement in the drawn-out legal fight over the future of the downtown mall, but maybe this time the case can finally come to a close.

According to Mall Association President and Operating Committee Chairman Robert Chiarmonte, the mall board has been updated on details of the latest draft of the deal.

"There's a current supposed agreement that's pretty recent but it's not ... approved by either side yet," Chiarmonte told WBTA. "Each merchant has to approve and sign off. It's not it hasn't gotten to that point yet. The meeting that we had last night was mostly informational. There was no voting actually took place."

It's not certain the owners of all the mall parcels will agree to the settlement.

"Both sides have to agree before we can bring it to a vote," Chiarmonte said. "There are some things in that agreement that we do agree on but I can't discuss most of that. ... It's probably closer than it's been but there are still a few hurdles we need to get passed before we can call it an agreement. I don't think I can discuss details of the agreement at this point because it's still considered an act of litigation. I am hoping that we can come to an agreement soon because it's been going on for a very long time."

City officials have been waiting since most of the year for the mall owners to agree to a settlement they thought attorneys for both sides had accepted in February.

In a letter to his clients, an attorney for the Mall Merchants Association is trying to change the terms of an already finalized settlement agreement with the City in the long-standing legal fight over the past, present and future of the City Centre mall, said City Manager Jason Molino.

In a letter dated April 6 and provided to local media late Friday, Attorney Hugh C. Carlin said the settlement with the city was only tentative and that there were two significant issues still to be addressed.

He accused Molino of discussing the settlement with the media in violation of an agreement, but word of the settlement came not directly from Molino but was a matter of public record because it was on the City Council agenda the first week of February.

"The City has proceeded with every aspect of this matter in accordance with the settlement terms that were agreed upon by the City and merchants representatives in December," Molino said.

Molino had not seen a copy of the letter before it was provided to local media outlets.

The terms of the settlement were agreed to through an 18-month-long mediation process in which both sides ran up significant legal bills, Molino said.

"In that time frame, the merchants have changed attorneys several times, however after extensive discussions, both parties agreed to settlement terms which were outlined publicly in the city’s February presentation," Molino said.

In his letter, Carlin said there are two main factors of disagreement remaining between the city and the mall merchants. 

First, there is an issue related to easements for pedestrian and vehicle traffic for each property owner in the mall. The attorney also accused the city of using heavy-handed tactics to force a settlement by "hoarding" nine foreclosed properties and refusing to pay maintenance fees.

"During the negotiations between your representatives and the City, the issue of individual owners' rights to access their properties was not discussed," Carlin wrote. "In fact, the only restrictions on City property that were addressed related to the present contractual obligations of the City to maintain specific numbers of parking spots.

"The City now insists that, as part of any settlement, the easements be terminated," Carlin added. "The termination of the easements raises significant issues concerning your title. If the easements were terminated, your ability to refinance or transfer your parcel in the future would likely be jeopardized."

This misrepresents that facts, Molino said.

"It’s important to note that the first term agreed upon was the termination of all prior agreements, making them null and void," Molino said. "By the nature of terminating these agreements, all covenants, easements, and restrictions placed on real property associated with those agreements would be terminated as well.

"This included the concourse and city parking lots. For the merchants' attorneys to claim this issue was never discussed is simply not true as a third-party mediator, merchants' representatives and merchants' attorneys themselves all reviewed and approved the terms prior to an agreement being reached."

Carlin now says he won't support an agreement that changes the terms of easements. 

"The City's inexplicable and irrational proposal comes at a cost to the Merchant Association," Carlin wrote. "The City will give the inferior and unacceptable easement only in 'exchange' for a cost-sharing arrangement for roof repairs should the sum of those repairs exceed $650,000. As you may recall, one of the primary reasons for the merchants negotiating team reaching an agreement with regard to the settlement framework was the City's assumption of all costs relating to the roof replacement without any cap on costs."

As for the foreclosed properties, Molino said Carlin was also informed on state law regarding how the city is obligated to handle those properties.

"The merchants' attorney has been repeatedly advised that upon foreclosure of real property taxes under the Real Property Tax Law all prior rights, interests and restrictions of record are terminated in the parcel," Molino said. "Hence, under the RPTL the City has no legal obligation to pay the past or future maintenance fees on foreclosed parcels under the historic mall agreements.

"To suggest otherwise evidences a serious lack of understanding of municipal law practice and procedure. However, if the settlement agreement is executed and the concourse user fee law adopted, the City would pay future user fees on foreclosed parcels."

Molino said it is normally against city policy to discuss ongoing litigation in public, but given the nature of the misstatements by Carlin to his clients, he wanted to clarify matters.

"Unfortunately, it appears from this letter that the merchants' attorney is attempting to reverse, back down or change the agreed upon settlement terms between the City and Merchants Association," Molino said. "While this is concerning on many levels, most concerning is the merchants' attorney is preventing the City and Merchant Association settlement terms from being executed, stopping the City from moving forward with the needed capital improvements to the concourse.

"Furthermore, after having expended close to $90,000 in legal fees over the last year (over $200,000 since 2009) without a signed settlement agreement, the letter from merchants' attorney appears to be an unfortunate attempt to deflect attention and blame. Sadly, the significant expenditures forced by the merchants' attorney suit and handling have drained substantial funds from the group's budget, and away from repairs and improvements of the mall."

Despite the disagreements, both Molino and Carlin said they are hopeful the 2008 lawsuit filed by the merchants can be settled.

"We are obviously disheartened by the turn of events in this case, but will persist in efforts to remain hopeful that cooler heads will reach a settlement consistent with the terms negotiated and agreed to in December and presented to you in February," Carlin wrote. 

Molino: "Regardless of this setback, the City remains hopeful that despite the merchants' attorney's obstructions to the settlement process, the original terms negotiated in good faith between the City and Merchants Association will be executed in the near future, and the mall can be improved, adding value to the merchants' properties and open to the door to future revitalization in the City’s Downtown."

City officials are wondering what's up with the settlement they reached with attorneys for the City Centre Mall Merchants Association. They thought the matter would be resolved by now, but apparently, the attorneys for the merchants haven't even shown the membership the final draft of the settlement agreement.

While City Manager Jason Molino said he has no reason to believe the settlement won't eventually be presented to the merchants and the settlement will be approved, the delay just means the city can't work on structural deficiencies in the concourse.  

"I would like to think that there is nothing that suggests the deal is going to fall apart," Molino said. "The issue is how do we get to the finishing line and get to the finishing line as expeditiously as possible, which is in the best interest of everyone in the community, the best interest of the property owners in here in the mall, and then we can start to talk about what we can do to trigger new growth and new investment in this concourse and in this mall. That's the most important thing to keep our eye on."

Mall Manager Madeline Bialkowski, who scheduled her retirement for April 1 to coincide with the settlement of the mall merchant's lawsuit being in place, said that merchants are waiting for a final draft of the settlement agreement from the attorneys.

Hugh Carlin is the attorney representing the City Centre Mall Merchants Association. 

Yesterday, we asked Carlin when the merchants would approve the settlement.

"I can't say yet," Carlin said. "Hopefully in the near future. There are a few more details we're working on."

Asked what those details might be since his side had already agreed to a settlement, Carlin said, "I can't comment." Pushed for clarification, he repeated, "I can't comment."

According to documents obtained by The Batavian through a Freedom of Information Law request, the merchants have paid their attorneys $212,056 since starting the litigation against the city in 2009.

In February of 2015, The Batavian reported that the association had spent $103,317 on the lawsuit. The tab has gone up another $108,738 according to documents obtained through the FOIL request.

The city, through the same period, has spent $168,070 on attorney fees, with $63,872 being added since February 2015.

"The city has done everything it can prior to the lawsuit (to reach an agreement), during the lawsuit and now, having entered into terms we've agreed to to end the lawsuit in a way that is expedient and in the best interest of everyone," Molino said. "Now, we're still having challenges with the mall's legal counsel."

The lack of an agreement is delaying Bialkowski's retirement. She's agreed to stay on until the settlement is finalized, but she and her friends are still going ahead with a retirement party at Ken's Pits on March 30 because she anticipates she will be retired not long after that, she said.

The association and the city had a long-simmering dispute over who is responsible for repair and maintenance of the mall concourse. According to a 1987 settlement, the merchants' association was supposed to take control of the city-owned concourse on April 1, 2000.

The settlement agreement the city and the attorneys for merchants agreed to during the first week of February puts the burden back on the city to repair and maintain the concourse. That's a task Molino said the city is eager to take on because that's the only way all of the necessary repairs will take place so the mall becomes once again a viable business investment.

The City Council approved the settlement Feb. 27.  Each owner of properties in the mall must individually sign off on the agreement or submit a motion to the court to show cause for not agreeing to the settlement.

The city is ready to get started, he said, as soon as the merchants approve the agreement.

"The city is in position and we're ready to move," Molino said. "We're ready to take this 17-acre area and take on the responsibility to move it into a better position so that in the future it triggers investment."

There's a lot of work to be done but that doesn't apparently include mitigating mold.

Contrary to reports in other media outlets, there is no evidence of mold in the mall, Molino said.  

The speculation for mold in the mall apparently comes from an interview Ron Viele, a local contractor, gave to a reporter. We placed calls yesterday afternoon and early this afternoon seeking clarification but Viele has not returned our calls.

We did speak to Paul Viele, Ron's son and a member of the City Council. He said he didn't participate in the interview with his father but did say "it's possible" there is mold in the mall, especially given the leaks and moisture in the mall.

He said the city should hire a professional to evaluate whether there is mold.

"We don't do that kind of work," Viele said. "We're contractors."

Until the merchants' attorneys move forward with the settlement, it would be up to the mall association to hire a contractor to deal with any potential mold, Molino said.

However, he said, as part of the settlement process, a third-party consultant was brought in to evaluate the mall concourse. Molino said he can't release that report, even as part of a FOIL request, because it's part of the technically ongoing litigation, but that consultant found no evidence of mold, he said.

As for whether it's possible, of course, it's possible, Molino said. It's also possible, he said, that if you have forced-air heating in your home that you have mold in your home. In fact, if you haven't had your ducts cleaned in a long time, it's likely. That doesn't mean the mold is harmful. It depends on the type of mold and a person's sensitivity to it.  It would take a professional, not just somebody looking up at the ceiling, to determine if mold is present. (Here's what the CDC says about the health risks of mold.)

Opening a bakery is something Batavia resident Vangre Canty has always wanted to do, so after a few decades working in the corporate world, she said she decided to do it.

Canty has opened GAMS in the City Centre, right by the entrance to City Hall.

"It's just a passion of mine," she said. "A passion to bake and cook. It puts smiles on people's faces."

All of the baked goods -- cookies, cream puffs, brownies, cheesecakes and more -- are prepared fresh every morning.

She also prepares a lunch special daily of sandwiches, soups or salads, with Friday's special usually being something meatless.

GAMS opens at 8 and closes around 3, unless a customer calls in with a special request.

Both sides have agreed to drop their lawsuits against each other in the years-long battle over who is responsible for the condition of the roof over City Centre, City Manager Jason Molino told WBTA this afternoon.

The City Centre Mall Merchants Association is scheduled to meet tomorrow to discuss a proposed settlement, according to a document acquired by WBTA.

The agreement will include an out-of-court settlement, Molino said, but he declined to reveal when the settlement will be made public.

The merchants have long maintained that the city is responsible for repairing the mall's leaky roof while the city has asserted that the mall association failed to keep up with routine maintenance. 

Via The Batavian's news partner, WBTA.

A lawsuit over the state of the dilapidated City Centre mall that began in 2008 may be nearing a settlement according to a source who provided information to WBTA.

The document is a notice for members of the City Centre Merchants Association to hold a special meeting tomorrow to discuss a possible settlement with the City of Batavia.

A vote on the possible settlement would reportedly come at a meeting on another date.

City Councilmembers have told reporters that there has been discussion behind closed doors about a possible resolution.

Via our news partner, WBTA.

A mediator could help resolve the long-simmering dispute between the City of Batavia and the Mall Merchant's Association, City Manager Jason Molino said this morning during an on-air interview on WBTA's Main and Center.

The bickering and lawsuits and counter-lawsuits are leading nowhere, Molino suggested. They won't lead to a resolution that satisfies all parties. A mediator would have a better chance and an equitable solution.

“When litigation is filed, it is on a narrow scope of issues and if it ever goes to trial and has a determination, the determination is going to be on that narrow scope of issues, and generally, on anything, there is more to it than just those narrow scope of issues and in this case, there is a lot more to it," Molino said.

The city and the Mall Merchants Association have been locked in a dispute for several years over who is responsible for the maintenance of the roof over the mall concourse.

The merchants claim the city owns the concourse and should repair or replace the roof.

The city maintains the merchants failed to properly maintain the roof.

Molino said he would like to see the case go to a mediator.

“Can there be a mediator? Yes, absolutely," Molino said. "Is that something we’re looking to do? Yes, it is.”

So far, no mediator has been appointed.

The city owns the Mall Concourse. The stores and offices in the mall are individually owned.

There is a water main break outside City Center on the east side of the mall.

Businesses on the east side are impacted.

Water department crews are on scene.

UPDATE 12:55 p.m.: Repairs are completed and service is restored.

So far, attorneys have been paid a combined $207,000 for the City of Batavia and the Mall Merchants Association to battle in court over who is responsible for what in the rapidly deteriorating structure.

There's a chance now the case may go to mediation, the City Council was informed Monday night.

After losing a motion for a summary judgement, City Manager Jason Molino said the MMA is willing to submit to mediation. 

A final agreement on mediation has not be completed.

The city and MMA have locked horns over responsibility for concourse maintenance, major repairs, ownership and governance.

In 2009, the MMA filed suit against the city.

Since then, the city has spent $104,199 on legal fees, while the suit has cost the mall merchants $103,317, according to Molino's memo.

"A thriving and healthy City Centre is critical to the City's downtown revitalization, and the City is very interested in an overall resolution that will best support long-term and prosperous solutions for all parties involved," Molino wrote.