Attorneys for the town of Ellicott and City of Jamestown both discussed the issue of whether the property was eligible for annexation.

Previously, the town of Ellicott and village of Falconer had argued in State Supreme Court that the city property assessor’s certificate for the property did not satisfy state law.

However, Judge Lynn Keane had ruled in November 2020 that it did despite Ellicott attorneys arguing that the property isn’t adjacent to the city line because a road separates the property from adjoining to the city boundary. Under state law, municipalities can only annex properties that are adjacent to their own boundaries.

City officials have argued that by annexing the property into the city limits, the Board of Public Utilities would save an estimated $160,000 each year in property taxes, thus saving money for all utility customers in the service area. They also claim such a move is in the overall public interest due to the city having a professional public safety department that could better respond to any safety emergencies that occur on the property.

Ellicott, Falconer, and the Falconer School District are all opposed to the annexation, saying it is nothing more than a money grab by the city.

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.

The lawsuit involving the annexation of the Jamestown Board of Public Utilities Dow Street Substation property in the Town of Ellicott is set to start up again in State Appellate Court.

The Fourth Appellate Court will hold hearings on Tuesday, January 4th.

Mayor Eddie Sundquist said the lawsuit is between the City of Jamestown and Board of Public Utilities’ with the town of Ellicott, Village of Falconer, and the Falconer School District. He said there are still procedural issues being worked out, “One of the procedure issues ruled in favor of the city by the Supreme Court Judge here in Chautauqua County ultimately was appealed by the town of Ellicott and we’re not just hearing, the court is now just hearing it a year later. So it’s been on the docket for about a year for the Appellate Court and they’re finally getting to it.”

State Supreme Court Judge Lynn Keane‘s ruling in November 2020 did not involve whether or not the annexation is in the “overall public interest.” That argument can still be made by Ellicott and Falconer and it would have to be made in State Appellate Court

Sundquist said the city is waiting to hear if the court will impanel people for the referee panel to hear the annexation case.

City officials have argued that by annexing the property into the city limits, the Board of Public Utilities would save an estimated $160,000 each year in property taxes, thus saving money for all utility customers in the service area. They also claim such a move is in the overall public interest due to the city having a professional public safety department that could better respond to any safety emergencies that occur on the property.

Ellicott, Falconer, and the Falconer School District are all opposed to the annexation, saying it is nothing more than a money grab by the city.

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.

JAMESTOWN – The Jamestown City Council will be acting on a resolution to proceed with the annexation of the Jamestown Board of Public Utilities Dow Street Substation property when it meets Monday in city hall.

There are actually two resolutions on the agenda focusing on the issue of annexation. One resolution involves proceeding with annexing the property from the Town of Ellicott and Village of Falconer into the city boundaries, while the other resolution involves approving a state environmental review of the site.

The annexation resolution states that city officials, including mayor Eddie Sundquist, recently held discussion with officials from Ellicott, Falconer and the Falconer School District to determine whether they could address the concerns that have been raised so that the annexation can proceed with the consent of all municipalities. However, the resolution further states that that the town, village and school district have all refused to continue those discussions.

As a result, the city council will proceed with a vote, which comes following a Dec. 30 joint public hearing on the matter. Under state law, the city council has up to 90 days to formally vote for or against the annexation from the date that the public hearing took place.

Ellicott, Falconer and the Falconer School District have each stated that they don’t support an annexation because it means they would be missing out on over $330,000 in annual tax payments paid by the BPU for the property.

The city says it wants to annex the property into its own jurisdiction, arguing it is in the public interest of the entire BPU service area because it would ultimately help to save the BPU’s electric division over $160,000 every year. That savings would come from the BPU not having to pay taxes on the property, although $160,000 would then be paid to the city and the Jamestown Public Schools as part of a payment in lieu of tax agreement the BPU has with the city and school district.

If the story feels like Deja Vu, that’s because the Jamestown city council took similar action on annexing the same piece of property in April 2017, launching a two-year long legal battle after both Ellicott and Falconer officials voted to block the initial annexation attempt. In August 2019 the New York 4th Appellate Division ultimately ruled against the annexation on a technicality, saying the required paperwork from the city’s legal team of Bond, Schoeneck & King to have the court review and rule on the case was not filed in a timely fashion.

That decision came only after the BPU spent $405,000 from its electric division budget to proceed with the annexation. Meanwhile, Falconer, Ellicott, and the Falconer School District spent over $300,000 to fight it.

Even if the paperwork for the initial annexation effort was filed on time, Ellicott and Falconer officials say the court would have ruled against the city, basing their assumption on a unanimous recommendation that was submitted to the court by a three-member referee panel at the end of 2018.

The BPU has hired the same law firm to handle the annexation case this time around but this time it is locked in to only being paid $75,000 to deal with the entire process.

If the city council tonight approves the resolution to move the annexation forward, the town of Ellicott and village of Falconer will then be given the option to vote against the annexation, which would then mean the matter would again have to be settled in state appellate court.

According to the Post-Journal, all local school districts saw their budget approved by local voters except for the Clymer Central School District.

Jamestown Public Schools – the county’s largest district – saw a light turnout but the results were overwhelmingly in favor of the $90.7 million budget that included no tax increase. The spending plan was approved 367 to 70. Meanwhile, voters also approved the lease and purchase of school buses by a vote of 386 to 48.

Also for Jamestown, incumbent school board members Patrick Slagle and Joe Pawelski were both reelected to new three-year terms. They were the only candidate to appear on the ballot this year.

In Clymer the $11.5 million budget was voted down by a vote of 580 to 459. The reason for the defeat was primarily due to the school board putting forward a spending plan that included a $13.3 percent tax increase over the current year.

At the Southwestern School district residents approved a $29.2 million budget that included a 1.5 percent tax increase, while in Falconer, residents approved a $23.7 million budget that included a very slight increase in the tax levy.

Frewsburg, Bemus Point, Panama, Chautauqua Lake, and Cassadaga Valley all saw their budgets approved as well.

Legal representatives for both the city and the sides opposed to the Annexation (Ellicott, Falconer, and the Falconer School District) appeared before the 5-members of the New York State Supreme Court Appellate Division – Fourth Department.

• WATCH THE ORAL ARGUMENTS ON COURT’S YOUTUBE CHANNEL

At issue is the city wanting to annex the Jamestown Board of Public Utilities (BPU) Dow Street Substation property, which it claims is eligible for annexation because it has an access point along the city line with the township. The substation serves as the interconnection point between the local Jamestown-service area power grid and the state electric grid.

Currently the city – through the BPU – pays approximately $325,000 annually in taxes on the property. If it were to be within Jamestown the BPU would not have to pay any taxes and would instead pay about $80,000 in PILOT payments to BOTH the city and the Jamestown School District – resulting in a net savings about at $160,000 each year. The town, village and school district all oppose the annexation because of the financial impact it would have on their annual revenue lines.

In late August 2017 the Jamestown City Council unanimously approved the annexation and in early September 2017, both the village and town disagreed with the annexation effort and voted against it. As a result, the city filed to have the settled in court to determine whether or not the annexation can occur.

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.

To make its case for the annexation, the city argues that it is in the public’s interest because the city’s own professional public safety employees would be better capable of responding to any emergencies that take place on the property. In addition, the city claims all BPU electric customers, including those that live in Ellicott and Falconer, would benefit because the annexation would reduce costs to the BPU’s electric division and that would have a positive impact on future electric rates.

Prior to Wednesday’s oral arguments, a three-member “referee” panel assigned by the court heard both sides of the annexation argument during a preliminary hearing last fall.  It was learned on Wednesday that the referee’s recommendation was in favor of dismissing the annexation effort on the grounds that it was not in the interest.

Part of the argument by the town, village and school district against the annexation is that the city’s filing to have it settled by the court didn’t occur within appropriate timeline, under state law. The opposition’s attorney, Pietra Zaffram from the law firm Harris Beach, said the city failed to initiate court action on time because it didn’t act within 30 days of the village and town’s vote against the annexation.

“The city was on notice. The notice of the meetings were made public. There was a significant amount of press on this issue. They had actual notice that there was a disagreement. And a fair and accurate reading of the plain-read of this state statue required those filings. They knew, or should have known based on a plain-read, that those filings would have to occur by virtue of that disagreement,” explained Zaffram, who added that it wasn’t the obligation of the town or village to immediately notify the city once they voted against the annexation. “We had no duty and, respectfully, we’re not operating in a vacuum here. This was a matter of public record for all parties involved and, again, it was significantly covered in the press.”

Meanwhile, the city’s attorney, Stephanie Campbell from Bond, Schoenick and King, argued that the city did initiate court action on time because they filed within 30 days of the annexation disagreement being sent to and filed by the county clerk. For the city, that is when the 30-day window began. As a result, that is something the court will have to consider as part of its upcoming ruling on the annexation.

But beyond the argument of whether or not the city filed on time, Zaffram also argued the property isn’t eligible for annexation because it doesn’t actual sit adjacent to the city line, which is required under state law. She said the center of Tiffany Avenue is the official border between the city and the town, making the east side of the road owned by the Town of Ellicott.

“The borderline is the center line of the road,” Zaffram explained. “You have a portion of the road that happens to be adjacent to the egress point of the BPU substation parcel, and then the remainder of that parcel is also included in the proposed area. Pursuant to whether or not a property is adjoining, that intervening highway prevents the contiguity, or the adjoining nature of the properties, that is a threshold requirement for annexation under [state law].”

And Zaffram also argued that the city doesn’t even own some of the property it is seeking to annex, but instead leases it from National Grid.

“My opponent is focused on this being such an important crucial part of the city’s infrastructure, and they want to maintain control and investment in the city. But there is a problem because the interconnection point to the grid, which is a critical piece of this property, is not owned by the city. If you had full, complete control perhaps that would be a distinguishing factor. You don’t have that here. That interconnection point, which is the most critical point of the property, isn’t even owned by them,” Zaffram explained.

Campbell, meanwhile, maintained that the issue of public safety was the key point in determining if the property is eligible for annexation.

“The interests of the property are to be located within the municipality that is most capable of providing it within municipal services,” Campbell said in her closing statement. “That is what the referees failed to consider. We would ask that you reject the report and recommendations of the referees and find that the proposed annexation is in the overall public interest.”

Anyone wishing to watch the full 25 minutes of arguments before the court can do so at the Four Department’s archive page of its website. The video should be posted by Monday, April 15.

The BPU has committed $405,000 in legal fees toward the case. According to the Post-Journal, the sides opposing it have paid a combined $320,000

A decision on the annexation from the Appellate division could come within a month.

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

ROCHESTER – The two sides involved in a contentious annexation case involving a piece of City of Jamestown-owned property in the Town of Ellicott/Village of Falconer will finally get their day in court today in Rochester.

The New York State 4th Appellate Division will hear arguments involving the proposed annexation of the Jamestown Board of Public Utilities’ Dow Street Substation property.

In early 2017 the BPU announced it was looking into the possibility of the annexation and by June of that year a public hearing was held. Two months later in August, the Jamestown City Council unanimously approved a resolution to annex the property.

The city’s claims it is within its right to annex the property because it already owns it and a portion of it is adjacent to the city line with the village of Falconer, which sits in the town of Ellicott. The city is also claiming the annexation would be in the public interest, primarily because of public safety provided by the city’s professional fire department – should an emergency ever take place at the location.  And as part of the public interest claim, the city says the annexation would help to stabilize electric rates for all of its customers – including those that live in Ellicott/Falconer.

Currently the city – through the BPU – pays approximately $325,000 annually in taxes on the property. If it were to be within Jamestown the BPU would not have to pay any taxes and would instead pay about $80,000 in PILOT payments to BOTH the city and the Jamestown School District – resulting in a net savings about at $160,000 each year.

Officials from Falconer, the Town of Ellicott, and the Falconer School District have all objected to the proposal because of the loss of tax revenue that would occur.  As a result the dispute has to be settled in the state appellate court.

The BPU has committed $405,000 in legal fees toward the case. According to the Post-Journal, the sides opposing it have paid a combined $320,000.  Jamestown is being represented by the law firm Bond, Schoeneck, & King while Falconer and Ellicott are being represented by Harris Beach LLC.

Once arguments are made today, the justices of the court will weigh the information provided and could bring a decision forward before the end of this month or in early May.

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

ROCHESTER – The two sides involved in a contentious annexation case involving a piece of city-owned property in the Town of Ellicott/Village of Falconer will finally get their day in court in April.

The Supreme Court of New York State 4th Appellate Division in Rochester will hear arguments involving the proposed annexation of the Jamestown Board of Public Utilities’ Dow Street Sub Station property on April 10 with a decision possible by the end of the month or in early May.

In the summer of 2017 the Jamestown City Council voted to annex the property, claiming the city had a right to annex it because a portion of it is adjacent to the city line with the village of Falconer, which sits in the town of Ellicott.

Officials from Falconer, Ellicott, and the Falconer School District objected to the proposal because of the loss of tax revenue that would occur. As a result the dispute has to be settled in the state appellate court.

Currently the city – through the BPU – pays approximately $325,000 annually in taxes on the property. If it were to be within Jamestown the BPU would not have to pay any taxes and would instead pay about $80,000 each in PILOT payments to both the city government and the Jamestown School District – resulting in a net savings about at $160,000 each year.

The BPU has committed $405,000 in legal fees toward the case. According to the Post-Journal, the sides opposing it have paid a combined $320,000.

The Jamestown Board of Public Utilities during its January 2019 board meeting on Monday, Jan. 28.

JAMESTOWN – The Jamestown Board of Public Utilities has approved another round of payments for the law firm hired to handle the Falconer Substation Annexation Case.

During it Monday afternoon board meeting, the board approved an additional $125,000 for the law firm Bond, Schoenek & King – which is currently awaiting a court date for the State Supreme Court’s 4th Appellate Division to hear arguments involving the annexation.

The new $125,000 payment is in addition to the $280,000 the BPU has already agreed to pay the Albany-based law firm, bringing the new total to $405,000.

According to BPU General Manager David Leathers, the latest change order will allow payment of legal expenses estimated through June 2019 and is specifically related to developing and filing the required brief to the Appellate Division, developing and filing a reply brief, and preparing and providing oral arguments. Leathers added he’s hopeful this will be all the additional money needed to deal with the legal case.

Meanwhile, Jamestown Mayor Sam Teresi, who serves as president of the BPU, said Monday night that the continued spending is unfortunate but also necessary.

“It’s greatly unfortunate. I can only imagine what the other side has been spending for legal bills associated with this challenge,” Teresi said. “It’s their right to challenge it. We think it’s a challenge without merit and we’ve got to go in and defend ourselves against the challenge.  I can only imagine the other side is spending as large if not a larger amount of funding to advance this case and we’ll see where it all leads to.”

While the latest amount of money the other side has spent on the lawsuit is not known, the amount as of August 2018 was a reported $177,000 and climbing.

All the money from the city’s side of the lawsuit 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. The money from the other side comes from the general operating budget of Falconer, Ellicott, and the Falconer School District – meaning in some cases residents in those jurisdictions who are also BPU electric customers are paying for both sides of the lawsuit.

In August 2017 the Jamestown City Council unanimously voted to annex the BPU’ 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 on the grounds that it is to the benefit of public safety.

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

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 BPU currently pays Falconer, Ellicott, the Falconer School District and the county approximately $360,000 annually in property taxes. If the annexation is approved, the BPU would no longer have to make those tax payments, although it would have to make a payment  to both the the city and the Jamestown School District a Payment in Lieu of Taxes of about $80,000 each.

The court has yet to set a date for when oral arguments in the case will be made. On Monday night Teresi said it will likely take place in April.

FALCONER – The Falconer School Board has selected the resident who will fill a recently vacated seat.

Falconer resident Tracy Schrader will serve as the interim-board member for the remainder of the school year, ending in June. She will fill an empty position that was vacated early November.

Schrader was selected from three candidates who expressed interest in filling the seat. The board met with each of the candidates earlier this week and selected Schrader following an executive session.

She will be officially appointed to the Board and sworn in at the Dec. 18 regular meeting.