Ellicott Town Board meeting (May 8, 2023)

The Ellicott Town Board, with no discussion, voted to rescind a resolution that eliminated one of the Town Justice positions.

Town Justice Marilyn Gerace expressed her disappointment and frustration about the process at the privilege of the floor, saying the matter shouldn’t have gotten to this point, “The Town Board’s ill-advised decision to eliminate a justice position has taken a considerable amount of time, energy, and resources. All of which can be better spent on other matters. This entire ordeal was completely avoidable had the Town Board relied on the expertise of others and not succumbed to inaccurate information, innuendos, conjectures, and rumors.”

The town justice position that would have been eliminated is the one held by Gerace.

Ellicott resident David Leach questioned if the town board would have used an executive session to make cuts to the Ellicott Police Department or Highway Departments without consulting the Police Chief and Highway Superintendent, “So why did the Town Board treat the Town Justices and Town Court in such a cavalier and disrespectful matter? A person with a more suspicious mind than myself could be forgiven for thinking that petty political and personal factors are at play. I, however, know that my Town Board is not motivated by such base considerations.”

The Town Board had initially approved the resolution to eliminate the justice position at its monthly meeting on March 13. Residents and officials were critical of the move given that there was no previous discussion or notice about the plan to eliminate the position.

Following public pushback received at the April 10 board meeting as well as facing a permissive referendum in June where the public would have been able to vote on whether to eliminate the town justice position, the Town Board voted unanimously last night to rescind the resolution.

Supervisor Janet Bowman declined to comment on the action following the meeting.

The agenda for the meeting on Monday, May 8 has “Resolution #1-2023” under old business.

Several dozen people attended the April 10 town board meeting to speak out against the Justice position being eliminated. Letters of support were also entered into the record by the Ellicott Town Police union and District Attorney Jason Schmidt.

The town Justice position affected is the one held by long-time Judge Marilyn Gerace, who has circulated petitions to appear on the November General Election ballot. Sally Jaroszynski is the other Town Justice.

Gerace said in her comments to the board in April that she and Judge Jaroszynski were blindsided by the decision, only learning about the position elimination the day after the vote when they both received a letter from Town Supervisor Janet Bowman.

She criticized the board for the making the decision without providing the public adequate opportunity to comment.

The Jamestown Post-Journal reports that it is expected that Town Supervisor Janet Bowman will make a motion to rescind the resolution Monday night.

Should the Town Board not approve that motion, a permissive referendum on the resolution will be held in June.

A petition effort, led by Ellicott Judge Marilyn Gerace, garnered 325 signatures to force a permissive referendum after the Ellicott Town Board voted unanimously on March 13 to eliminate a Town Justice position.

According to New York State Law Article 7, sections 90-94, the petition signature total needed to be at least 5% of the total votes cast in the last gubernatorial election, which took place in November 2022.

Gerace said she estimated that around 3,500 voted in Ellicott in that election which meant she needed between 100 and 175 signatures. According to the Chautauqua County Board of Elections posted results for 2022, 3,385 residents in Ellicott had voted in November. Either way, the 325 signatures exceeded the threshold required.

Gerace submitted the petitions to the Ellicott Town Clerk on April 5, which started the clock on when the special election would be held. If the town board takes no action, the special election must, by law, be held 60 to 75 days after the petitions were submitted. This places that election between June 5 and June 20.

Gerace did request at Monday’s town board meeting that the board not wait until their May 8 monthly meeting and instead hold a special meeting this month to decide whether to rescind the resolution.

The Ellicott Town Board sent a letter to the media Wednesday responding to comments made at the meeting and stories in recent days.

In it, the board apologized to Judge Marilyn Gerace and Judge Sally Jaroszynski for not giving notice about the resolution prior to it being voted on. The letter said, “The Board holds no animus towards either Judge Gerace or Judge Jaroszynski. The Board recognizes their dedication to the Court and the residents of the Town of Ellicott.”

The letter goes onto say the Town Board has been reviewing all town operations in an “effort to determine and ensure the services provided are being delivered in an efficient and cost-effective manner.” It also said communication between the town board and court has not always been open or effective.

The salary for the Town Justice position that was eliminated is $14,200. The 2023 budget for the town of Ellicott is $2.76 million.

The board did take issue with the accusation that they were in violation of open meetings law, citing that they voted on the resolution to eliminate the Justice position under new business and that it was done in open session.

The Town Board indicated they agree that another meeting needs to be held to discuss the issue of the elimination of a Town Justice position. The letter said while a meeting would be posted in the newspaper and on the town’s website, they also encouraged people who are unable to attend or not comfortable speaking out at a public meeting to forward correspondence to the Town Clerk.

The town’s website can be found at townofellicott.com

According to the minutes posted on the Town of Ellicott website, the board unanimously voted at the March 13 meeting to abolish an elected town justice position effective December 31, 2023. The resolution was not on the agenda and the vote took place at the end of the meeting following a 34 minute executive session on “litigation/personnel” issues.

The town then published a legal notice in the Jamestown Post-Journal on March 14, 2023 that said the “Town Board has determined that it would be in the best interest of the Town of Ellicott to reduce the number of Town Justices to one.”

The town Justice position affected is the one held by long-time Judge Marilyn Gerace, who has circulated petitions to appear on the November General Election ballot. Sally Jaroszynski is the other Town Justice.

According to the Jamestown Post-Journal, Gerace was joined by a couple dozen supporters at the town board meeting Monday night with letters of support being entered into the record by the Ellicott Town Police union and District Attorney Jason Schmidt.

Gerace said in her comments that she and Judge Jaroszynski were blindsided by the decision, only learning about the position elimination the day after the vote when they both received a letter from Town Supervisor Janet Bowman.

She criticized the board for the making the decision without providing the public adequate opportunity to comment.

She added in her statement that a petition has garnered over 300 signatures, which could force the town to put the resolution to a public referendum in a special election if the Town Board doesn’t act to rescind it.

District Attorney Schmidt also called on the town board to rescind the resolution, stating in a letter that Ellicott Town Court is one of the busiest courts in Chautauqua County.

He said that the elimination of the one of two Justice positions “could jeopardize the integrity of our criminal prosecutions by leading to longer delays in the adjudication of individual cases, increasing wait times for all involved, including not just criminal defendants but witnesses and counsel as well, and increasing the Court’s backlog which we have all worked so hard to reduce following the reopening. Without question, these factors could potentially lead to the dismissal of cases on statutory and Constitutional speedy trial grounds through no fault of the police or prosecutors; this, in turn, could undermine public confidence in the legal system and diminish access to justice for our citizens.”

A call and email by WRFA to Supervisor Bowman requesting comment on the matter have not been returned.

The Jamestown City Council during its Feb. 24, 2020 voting session.

JAMESTOWN – The Jamestown City Council voted 7 to 2 Monday night in favor of annexing the Jamestown Board of Public Utilities’ Dow St. Substation property in the Town of Ellicott/Village of Falconer, setting the stage for another legal showdown in State Appellate Court.

Monday’s vote came following statements from both Mayor Eddie Sundquist and Council President Tony Dolce. Sundquist said that the city was willing to negotiate an outcome to help avoid legal action, but officials from Ellicott, Falconer and the Falconer Central School (FCS) district walked away from the table the night before a second negotiating session was scheduled to take place.

Jamestown Mayor Eddie Sundquist

“I truly believe that there is a middle ground where all the parties could benefit. As part of that we’ve attempted negotiations. We’ve offered to invest in projects that make sense as a larger region and to support some of the work as we develop this area,” Sundquist said prior to the vote. “On the eve of the second round of negotiations, we were informed by Ellicott, Falconer and Falconer Schools that they no longer wish to negotiate with us in order to come to a resolution with this annexation.”

Dolce added that while there is the possibility for returning to the table to negotiate a deal and avoid litigation, he and other council members felt it was time to move the process forward.

“I was ready and willing to try and work to put off that vote again, but since they have decided to end the discussion there’s no need to wait on the vote,” Dolce said. “We still can sit down and talk and hopefully they would like to come back to the table but at this time I think we’ve extended the olive branch and its time for us to move on.”

Dolce joined six other council members in supporting the annexation, including councilwoman Tamu Graham-Reinhardt, who had previously recused herself from voting on any resolution involving the annexation because of a conflict of interest due to her working for the Falconer School District. But as of earlier this month Graham-Reinhardt is no longer working for the district, meaning she no longer had to recuse herself from voting on the issue.  The two council members to vote against annexation were newly elected members Grant Olson and Jeffrey Russell.

A map highlights the BPU Substation property proposed for annexation, with the red line illustrating Tiffany Avenue, the border between the city and the town of Ellicott/Village of Falconer.

Ellicott, Falconer and FCS are against annexation because it will result in a loss totaling $330,000 in annual tax revenue between the three.

The City and Jamestown BPU argues that by annexing the property, it will serve the public interest of the entire BPU service area, including customers living in the village, town and school district. The BPU would also avoid paying the $330,000 in taxes, and would instead make an estimated $80,000 payment in lieu of taxes to both the City of Jamestown and Jamestown Public Schools.

Following Monday’s council meeting, Sundquist explained that during the negotiations, the city was pressing for an annexation while also trying to help soften the financial impact it would have on the three affected municipalities.

“It all revolved around annexation but we had flexibility on what was being annexed and what values would be associated to the annexation. But at the end of the day it was this council’s message as well as the BPU board that they wanted some form of annexation. But we were willing to be flexible on that and offset certain costs.”

The annexation can be legally challenged if either Falconer or Ellicott (or both) vote in opposition of the annexation. That is what is expected to take place, most likely during the next respective village and town board meetings.

Once a vote of opposition is made, a legal complaint is filed and the city will then have a limited amount of time to respond. Failure to do so before the deadline will result in the case being thrown out. This is what happened during the previous annexation attempt, which went to court in October 2017. But the issue of whether or not the annexation could proceed was never answered. Instead, the state 4th Appellate Division in Rochester ruled that Jamestown’s legal team – Bond, Schoeneck and King – had failed to file its response paperwork on time. The court case then ended on the filing technicality, with a ruling not being delivered until August 2019.

The legal fees for the previous annexation approached a combined $750,000. Bond, Schoeneck and King will again handle the case for the BPU, but Mayor Sundquist said this time they wont charge more than $75,000 from start to finish in this annexation effort.

“For this second round of annexation there is a cap of $75,000, going up all the way to the State Court of Appeals, which means that is the most we will pay,” Sundquist said.

A map highlights the BPU Substation property proposed for annexation, with the red line illustrating Tiffany Avenue, the border between the city and the town of Ellicott/Village of Falconer.

UPDATE [DECEMBER 18, 2019 at 4:30 p.m.]

The Public Hearing that was scheduled for Wednesday, Dec. 18 at 7 p.m. regarding the Annexation of the BPU substation property located on Dow Street has been cancelled due to inclement weather. A new Hearing date will be rescheduled and announced soon.

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JAMESTOWN – The Jamestown City Council will be joining the Falconer village board and the Ellicott Town board later this week in hosting a joint public hearing on the annexation of the Dow Street Substation property in Falconer.

The hearing will take place at Jamestown Community College’s Robert Scharmann Theatre at 7 p.m. Wednesday, Dec. 18.

Under law, a hearing is required to take place before a vote on the annexation can occur.  The hearing groundwork was laid during the city council’s November voting session, when the council voted 7 to 1 in favor of initiating the annexation process.

• RELATED: Jamestown City Council Approves Annexation Resolutions

The city of Jamestown is arguing that it is the best public interest to bring the substation property into the city boundaries. The property is currently owned by the city through the Jamestown Board of Public Utilities and the BPU currently pays an estimated $333,000 a year in taxes to Falconer, Ellicott, the Falconer School District and Chautauqua County.

If the property were in the city of Jamestown, the BPU would not have to pay any taxes on the property but would make a payment in lieu of taxes of about $80,000 to both the city of Jamestown general operating budget and to Jamestown Public Schools.

Because of the loss of tax payment, Falconer, Ellicott, and Falconer School officials have all voiced their opposition to annexation.

The matter has already been taken up once, with the council voting in 2017 in favor of the annexation. But both Ellicott and Falconer challenged the annexation, and as a result it became a matter for the courts to decide on. In August of this year the New York 4th Appellate Division Rochester ruled that the annexation could not go forward because of a technicality with the city failing to file legal paperwork on time. As a result, the process has to start all over again.

The city council will have up to 90 days to vote on the annexation once a public hearing is held, and the next city council voting session is scheduled for Monday, December 30. However, Jamestown Mayor Sam Teresi recently told WRFA that the city council wont likely take up the annexation resolution at the end of this month, and will instead wait until after the new year when the new city council and a new mayor is sworn in.

Teresi also told WRFA that no matter how the process plays out and regardless of the steps that may need to be taken before it comes to a conclusion, it won’t cost the BPU electric division more than the $75,000 that was already committed in November. That’s because the law firm representing the city – Bond, Schnoeneck and King – also represented the city in the previous annexation effort and much of the groundwork for the lawsuit has already taken place.

In the previous annexation effort the BPU eventually spent over $420,000 from its electric division to pay for the case as it unfolded. Meanwhile, Falconer, Ellicott, and Falconer School District paid a over $300,000.

A map depicting the BPU substation property (in red) that sits adjacent to the border between Jamestown and Village of Falconer/Town of Ellicott.

JAMESTOWN – The wait continues on the outcome of a legal case that could have huge financial implications for the city of Jamestown, along with the Town of Ellicott, Village of Falconer, and Falconer School District.

It’s been over a year since the Jamestown City Council voted to annex a piece of city-owned property from the Village of Falconer and Town of Ellicott.  But because both the Ellicott Town Board and Falconer Village Board voted against the annexation of the Jamestown Board of Public Utilities’ Dow Street Substation property, the matter has to be ruled on by the New York 4th Appellate Division court in Rochester.

Jamestown Mayor Sam Teresi told WRFA earlier this week that oral arguments and testimony were given to a three-member tribunal from the appellate division earlier this month in Mayville, with officials from Jamestown, the BPU, Ellicott, village of Falconer and the Falconer School District all offering details on the case. The mayor adds that at this point, the tribunal is likely putting together a report that will be given to the five-members of the appellate court in Rochester. Once the justices of the appellate court review all information, they will then likely call attorneys for both sides to Rochester for one final hearing where final arguments can be made before they rule on the matter.

At this point, the case has yet to appear on the appellate division’s docket, which now includes both the month of November and December. As a result, Teresi said he anticipates a court date for the final arguments to be made in either January or February of next year.

So far more than half a million dollars has been spent on legal fees associated with the case. The city is using BPU funds to pay its attorney fees, while the village, town and school district are using their own funds to cover the cost.

If the city is able to annex the property, the BPU will save an estimated $160,000 per year by no longer having to pay $320,000 in property taxes to the school district, the town, the village, and the county. Instead, it would make an annual payment in lieu of taxes ofa bout $80,000 to both the city and the Jamestown School District.

The special meeting was scheduled because of the number of residents who’ve voiced concerns about the quality and health of the lake, and officials not sure if they could adequately address the concerns during a regular meeting, with other business also on the agenda.

The special meeting at 4 p.m.  is next to the Town Hall at 215 S. Work St. and will be open to the public.

A map depicting the BPU substation property (in red) that sits adjacent to the border between Jamestown and Village of Falconer/Town of Ellicott.

JAMESTOWN – The cost of the Annexation issue between the city of Jamestown and town of Ellicott, Village of Falconer and Falconer School District is costing taxpayers and local utility customers more than $450,000.

At issue is the city’s effort to annex a piece of property owned by the city, the Jamestown Board of Public Utilities Dow Street Substation, which sits in Falconer near the city line. The city claims it is in the public’s best interest to have the property annexed into the city, while the neighboring municipalities and school district claim it is simply a money grab for the city in an effort to avoid paying taxes on the property. The matter is currently awaiting a review and ruling from the State Supreme Court Appellate Division, Fourth Department in Rochester.

On Monday the BPU increased the amount of money it will likely spend on legal fees in the annexation case by $110,000 – bringing the new total for the city’s share to $280,000.

WRFA has since reached out to the Village of Falconer, Town of Ellicott, and Falconer School District to learn how much each of those three municipalities have spent.

Falconer School District superintendent Steve Penhollow tells us the district has committed $112,930 to this point.

According to Ellicott Town Clerk Mike Elrlandson, the town has spent $12,060 to date on the annexation.

Meanwhile, Falconer village clerk Anna Fales says village has spent $51,997.34 through the end of may, though additional costs are expected once the village is billed for the months of June, July and August.

Combined with what Jamestown has committed through money from the BPU electric Division, the total amount in legal fees spent on the annexation issue is $457,000, with more expected to be spent before the process is over.

More than 200 people were on hand for a joint public hearing on the proposed annexation of the BPU’s Dow Street Substation Property. The hearing was held at Falconer Central School Monday night, June 12, 2017.

The city has retained the law firm Bond, Schoeneck, and King as its outside council. The side fighting the annexation has retained the law firm Harris Beach PLLC.  The law firms were not only brought in to help prepare for a June 2017 Public Hearing on the matter, but have also been retained to assist with the matter as it proceeds through the court process.

SAVINGS FOR BPU, LOST REVENUE FOR CITY’S NEIGHBORS ON THE LINE

While some argue the ever-increasing legal fees connected to the case is an exorbitant amount, even more money is on the line when it comes to the possible outcome of the annexation.

According to a 2017 report from the Post-Journal, of the $322,090 the BPU paid in annual property taxes, $153,852 went to the Falconer School District; $68,789 went Falconer; $67,217 went to the county; and $32,232 went to Ellicott. The totals are all less than 1 percent of the total operating budget for each, except for the village of Falconer, where the total BPU tax payment comprises just over 5 percent of the total revenue for the village’s operating budget.

If the Appellate Court were to rule in favor of the annexation proceeding, the BPU would save around $160,000 a year because it would no longer be making property tax payments, with the city and the Jamestown School District receiving a tax equivalency payments of around $80,000.  Over the next decade, the BPU would save more than $1.6 million. The city of Jamestown and Jamestown School District would also see an additional $800,000 each over the next decade.

Meanwhile, the Falconer School District would be the biggest loser, with over $1.54 million lost over 10 years. The village of Falconer also stands to lose an estimated $688,000 over the same time period and Ellicott would lose $323,000.  That lost revenue would have to be made up for through cuts in local services and/or increased taxes for the local property owners.

AN OUTCOME TWO YEARS IN THE MAKING

It was in January 2017 when it was first announced the BPU would be looking into the annexation and the Jamestown City Council unanimously voted to annex the property in August 2017.

In early September 2017 the Falconer Village Board voted against the annexation and the Ellicott Town Board did the same. As a result, the matter has to be settled in state appellate court.

The court in Rochester has yet to set a date for when oral arguments in the case will take place, but Jamestown Mayor Sam Teresi said Monday night that things are moving forward with preliminary meetings and a hearing schedule for September and October. All that will be in preparation for oral arguments before the Rochester-based appellate court, likely in November.  After that, the decision from the Appellate Court could come by the end of this year or in early 2019, two years after the process got underway.

The Jamestown Board of Public Utilities and staff during the Aug. 27, 2018 board meeting.

JAMESTOWN – Legal fees in the annexation case between the city of Jamestown and the Town of Ellicott / Village of Falconer continue to climb.

On Monday afternoon the Jamestown Board of Public Utilities unanimously approved a $110,000 change order for the law firm Bond, Schoeneck, and King related to the case going before the Appellate Division, Fourth Department at some point later this year.

The approval by the board came with no discussion or comment from board members and only a brief explanation from BPU General Manager David Leathers. The change order also was not included on the prefiled agenda that had been posted on the BPU website for the public on Friday, and instead was only included on the printed agenda that was provided at the start of Monday’s BPU meeting.

Total legal fees for the city’s representation in the case are now set at $280,000. That figure represents the spending limit for the designated law firm and not the actual amount that has been paid.

“It was anticipated and it is what it is. Justice, sometimes, and working through the legal system is certainly not inexpensive,” explained Jamestown Mayor Sam Teresi, who is also president of the BPU.

The money comes from the BPU Electric Division and not the city general operating budget, meaning revenue collected from all BPU customers, both inside and outside of the city, is being used to pay the city’s legal fees in the case.

It is not known how much the village of Falconer, Town of Ellicott, or Falconer School District have paid in legal fees for representation from Harris Beach PLLC.  WRFA has reached out to those three parties in an effort to get the total cost of fees for their side in the case.

A map depicting the BPU substation property (in red) that sits adjacent to the border between Jamestown and Village of Falconer/Town of Ellicott.

It was one year ago that the Jamestown City Council unanimously voted to annex the BPU Utilities’ substation property located in Falconer, with a portion of the land being adjacent to the border between the village and the city. The city had argued that because the property sits on the village line with the city and is owned by the city, it is eligible for annexation.

In early September 2017 the Falconer Village Board voted against the annexation and the Ellicott Town Board did the same. As a result, the matter has to be settled in state appellate court.

If the annexation is approved, the BPU would save around $160,000 a year in property tax payments, with the city and the Jamestown School District receiving tax equivalency payments of around $80,000 from the BPU.

• RELATED: Audio of June 2017 Public Hearing on Annexation Proposal

As WRFA reported last week, the court has yet to set a date for when oral arguments in the case will be made before the court, but Mayor Sam Teresi said that things are moving forward with preliminary meetings and a hearing schedule for September and October. All that will be in preparation for oral arguments before Rochester-based court, likely in November.

“A hearing now has been set. A three-member ‘referee’ panel [from the Appellate Court] will be meeting in early September in preparation for a hearing in October with all parties,” Teresi said, noting that the hearing will likely take place in Mayville. “A report will then be sent on to the Appellate Division, which we expect will then be meeting before the end of the year in Rochester to hear final oral arguments, with a decision to be rendered, we hope, if not by the end of the year then by early next year.”