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A Lakewood business owner is asking the courts to resolve a 3-year-old dispute with the state Transportation Department over a disputed right-of-way.
MADMAR Development LLC owns property at 341-343 E. Fairmount Ave., and is in state Supreme Court in Mayville for five dispositions to the dispute: release of a highway bond purchased in 2021 for a temporary highway work permit; ordering that a highway work permit completed in May is unneeded and duplicative based on the submission of the permit granted by National Grid and a temporary highway work permit submitted in July 2021; that the DOT immediately release an abandoned jurisdictional right-of-way at 341-343 E. Fairmount Ave. at the state's expense; prevent the DOT from further interference with MADMAR's use of the property while allowing signs proposed by MADMAR; reimbursing MADMAR for all maintenance and expenses for work within the right-of-way or to improve the right-of-way over the past three years.
According to court documents filed in late June, the developer purchased the property in June 2020. Boice Lydell, the lot's previous owner, purchased the land in the 1980s before the reconstruction of Route 394. The expansion and realignment of Route 394 from two lanes to four lanes resulted in the state controlling jurisdictional rights-of-way along the road since 1989, with the rights-of-way unused or abandoned since then. Lydell had been told by the state Transportation Department he could "use" the parking lot/turnaround to get into and out of the property since it was the only available access to his parcels and buildings, with Lydell responsible to maintain the area. MADMAR purchased the lots and demolished the existing buildings while also installing updated water, gas and electrical services. During that process, the general contractor for electrical services was told in December 2020 that a permit had to be issued with state DOT approval since the utility pole was located in the jurisdictional right-of-way held by the DOT.
That request began three years of back-and-forth discussions involving Lori Thierfeldt, an area attorney and the owner of the property, National Grid, the Chautauqua County Attorney's Office and the state Transportation Department.
"(The DOT) has required (MADMAR) to meet its unreasonable demand instead of just releasing the abandoned (right-of-way) to (MADMAR) when it has had three years to do so," Thierfeldt wrote in a court filing. "(MADMAR) has been complying with every request of (DOT) for nearly three years, however, (DOT) has acted arbitrarily and abused its power by requiring unnecessary permits and refusing to release a bond put in place in 2021 in order to force (MADMAR) to comply with more unnecessary requirements. (MADMAR) has and will continue to pay taxes on the abandoned right-of-way and has complied with all reasonable requests. Respondent's refusal to release the bond, require an enormous fee for (MADMAR)'s fee owned property and release the abandoned jurisdictional right-of-way is unlawful and arbitrary and capricious. (DOT)'s actions amount to the taking of property and rights afforded to (MADMAR) when (MADMAR) purchased the properties in June 2020."
In short, DOT officials initially said the right-of-way could be released to the county, but the county said it didn't own the land and that the right-of-way should be released to MADMAR since the property originally extended to the middle of the road. While the right-of-way issue was researched, Thierfeldt paid $500 for a highway bond so a new utility pole could be installed at the site and power to her newly built building connected so the building could be opened.
In June 2021, one of the building contractors contacted MADMAR saying the bond required by the DOT for the temporary permit needed to be released or MADMAR would have to pay another $500 for the bond for 2021-22. The state DOT said the bond could not be released because one of the original permits wasn't completed even though the temporary permit allowed utility work to be done was filed by National Grid. Getting the original permit granted required an engineering report, with the DOT saying another fee was required and that the original bond would be released after a Use and Occupancy Permit Application process was completed. MADMAR was told by the DOT's Use and Occupancy Division in December 2022 an appraisal of the new building was needed to determine the fee for the use and occupancy permit and that a new check for the original permit had to be sent. That was done, but the bond was not released. At the same time, the DOT told Thierfeldt that signs in the right-of-way had to be moved. Then, after the appraisal, the state DOT sent MADMAR a permit to use 3,322 square feet in front of the new building for parking with a required payment of $2,760 even though a permit or fee had never been required to use the area by the prior owner.
Thierfeldt said nothing has changed in the parcel's relationship to the state other than a new building. The previous owner handled all maintenance of the parking lot, lawn and trees in the right-of-way while trimming weeds between the guardrail bordering the sidewalk along Route 394. No additional highway work has been completed since the new utility pole was installed, and Thierfeldt said the pole was placed outside the right of way closer to the new building.
"It became clear that petitioner was being singled out and after more than 30 years, NYSDOT suddenly required a permit and enormous fee to use a parking lot/turnaround area in front of the new office development, in addition to denying signage in front of the office development, even though they had abandoned the ROW long ago and release of same was proper," Thierfeldt wrote in an affadavit filed as part of the case. "Based on the facts, it was clear that there is no justification by NYSDOT for the requirement of the use and occupancy permit or a highway work permit."