The owners of properties on Bennett Road Extension, Dunkirk, say the possibility of new development is behind an effort to end an agreement allowing the Boneyard Driving Range to use land for its driveway.

Attorney Joseph Calimeri of Wright Calimeri PLLC in Jamestown, representing Rotunda Properties LLC, argued in recent filings in state Supreme Court in Mayville that Rotunda Properties should be allowed to end the informal, seasonal permission to use a driveway on the property to allow people to enter and exit the driving range. Rotunda Properties has granted permission to use the driveway for more than a decade before deciding this year to end the agreement and put the properties up for sale.

“The Property has garnered a lot of interest, and the Defendant has had conversations with multiple potential purchasers,” Calimeri wrote in a memorandum opposing a preliminary injunction on behalf of the driving range owner. “One prospective purchaser, the current tenant of the Defendant’s 4,000 square foot storage facility, indicated that it was interested in the Property, having wanted to demolish the existing structure in the rear and build a larger warehouse along the entire northern portion of the Property. Of course, this would require discontinuation of access to the driveway used by the Plaintiff. Based upon the concerns expressed by potential buyers, Defendant notified Plaintiff its intent to close the roadway to Driving Range patrons effective July 1, 2025. The Defendant

raised objections, having concerns about finding an alternative access road a month prior to opening for the year. Defendant, recognizing the predicament, authorized access through the duration of the 2025 season.”

In an affirmation filed June 30, Roger Britz, owner of the driving range, testified that the driving range is landlocked on all sides by wetlands, residential properties and the state Thruway, leaving it with no direct access to a road. In the spring of 2011, Richard Killberg, the driving range’s prior owner, extended an existing driveway from the driving range property to the Rotunda property to provide access to the driving range and, according to Britz, entered into an oral agreement with the co-owner of the Rotunda property allowing for use of a driveway as long as the driving range’s owners maintained the driveway.

Britz then purchased the driving range in April 2017 and, according to Britz, confirmed that agreement. That agreement was made with one of Rotunda Properties LLC’s co-owners and who has since passed away. The remaining owner, according to Britz’ affirmation, notified Britz on May 29 that the driving range would no longer be allowed to use the driveway starting July 1. That contact led Britz to file for an injunction in the state Supreme Court to continue using the driveway, though Rotunda Properties extended access through the 2025 season.

Now, the case is likely headed to court.

Calimeri argues that the driving range had the opportunity to extend a driveway onto Williams Street across property owned by John Dach, but has chosen not to do so because it would cost thousands of dollars. The less expensive option was to run the driveway across the Rotunda Properties land. An injunction would hold up a potential sale of the property. One proposal, according to Calimeri, is an expansion project by MERJ Flee Service Inc., an existing tenant of Rotunda Properties, which wants to add on to its 4,000 square foot facility and build a warehouse across the northern portion of all three lots.

“Any harm caused by the plaintiff is self-inflicted,” Calimeri wrote. “The Plaintiff must have been aware when acquiring the Driving Range that its access was based upon a seasonal license and accepted such risk when acquiring the business. If Plaintiff was not aware, then it is not the Defendant’s fault that a bad business decision was made. On the other hand, granting a preliminary injunction to the Plaintiff would cause harm to the defendant. The Defendant listed this Property for sale in April. Defendant has fielded many inquiries and received one offer from its tenant. However, nothing can proceed while the TRO is pending and if a preliminary injunction is granted. All potential purchasers have expressed an intent to build upon the property and combining all or a portion of all three lots.”