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September 19, 2020 - 10:28am

Liability an issue with property owners who are on the fence about city's deer management plan

Owners of property in the City of Batavia identified as archery-only hunting zones in an approved deer management plan say they are either noncommittal or not willing to participate in any culling operation.

The Batavian contacted four residents and previously obtained comments from a fifth, Noah Majewski of Alexander Road, who spoke at Monday night’s City Council meeting.

At the meeting, Council members voted in favor of the City Deer Management Plan, a 25-page document that puts the Batavia Police Department in charge of selecting and registering hunters, forging cooperation agreements with landowners and other related responsibilities.

The plan is set up to mirror, to some degree, a deer management program run by the police department in the Town of Irondequoit, and came to fruition after eight months of work by a now defunct Council-appointed City Deer Management Plan Committee.

Police Chief Shawn Heubusch reported that he will be reaching out to citizens who own land near and around three of the five designated areas where deer congregate to see if they wish to permit hunting on their property.

Those areas are:

-- Unit 1: A parcel north of Clinton Street, owned by the Reinhart family.

-- Unit 2: About three acres at the end of Northern Boulevard stretching north of Evergreen Drive, owned by Assemblyman Stephen Hawley;

-- Unit 3: Five acres west of State Street (across from Batavia High School), with the majority owned by Duane Preston and another acre for hunting owned by Russell Nephew. (Nephew had served as spokesperson for the deer management committee that resigned last month over miscommunication involving changes to the plan).

The other two zones are city property:

-- Unit 4: Route 98, south of Walnut Street area near the Waste Water Treatment Plan, and adjacent to land owned by Majewski;

-- Unit 5: Law Street (about one and a half acres), east of the city’s Yard Waste Station going toward Tonawanda Creek.

The plan stipulates that city employees only will be permitted to hunt in Unit 4 and Unit 5.

Interim City Manager Rachael Tabelski responded to an email asking about liability insurance by forwarding the NYS General Obligations Law (GOL 9-103).

The law provides general liability protection to landowners who allow a number of types of recreational activity on their lands, including hunting, provided that the landowner is not receiving a fee for providing that access, and also provides that the owner does not owe a duty to users or assume liability for injuries, and does not attach gross negligence of the owner.

“As we move toward implementation of the plan, we will look into this further as we engage with potential landowners with the collective goal of reducing the deer population in our city,” she said.

Concern over liability in case of injury, for example, seems to be the main reason why a couple of the landowners are apprehensive about getting involved.

-- Hawley said he received information about the plan a couple months ago from Samuel DiSalvo, also a member of the deer management committee, but hasn’t had a chance to look them over.

“I’d have to take a look at the specifics of it … I have a dog and grandchildren, so there is some concern, but at the same time there are certainly a plethora of deer, and they’re bold,” he offered.

He acknowledged that there is a deer problem.

“It’s something we’ve talked about forever -- and if this is a plan that looks as though it could work and cull out some of them, then that’s a positive thing.”

-- Jerry Reinhart Jr. said he hopes that the program will be able to “make a dent” in the large deer population, but the property owned by his family is big enough for only a couple people – “and our family hunts on it.”

Thus, he said that parcel of land would not be available for the city’s deer management plan.

-- Preston, owner of Preston Apartments in Batavia, said he is waiting for official paperwork from city management and would forward that on to his attorney for review.

“I’ve seen all the people bailing out on this so I would have to get attorney approval at this point as far as liability involved with people being on your property – if somebody gets injured,” he said. “So, I am not sure as far as the legality aspect of having individuals on my property with arrows.”

He added that he isn’t ruling out participating in the program.

“I am affected by the deer issues on my property. I can well attest that the deer have a grand buffet on my bushes,” he said.

A resident of Carolwood Drive on the northeast side of the city, Preston said there were only four or five deer in that area when he moved there 23 years ago.

“But now, there are 25 deer just roaming through the back of Hawley’s land all the time. They go right up through North Street, over to Allenview Drive down Garden Drive, and it’s the same with State Street (where he owns an apartment building across from the high school) and at my Parkview Apartments on Pearl Street. Three of my properties in the city are affected so I know it’s an issue.”

-- Nephew went a step further, stating that he wants no part of the program, evidently still displeased over the way things turned out between the committee and city leaders.(See the links to previous stories below).

“I don’t want anybody on my property,” he said.

-- Majewski said liability issues will prevent him from getting involved.

He said he was concerned that someone might get hurt, and was upset by the fact that people trespass onto his property.

He added that he runs “nuisance beaver traps” with a nuisance beaver permit from the NYS Department of Environmental Conservation. He said the traps are set around a swamp and he would hate to see someone step in one of those traps.

“I just feel like this is opening up a whole new can of worms to bring more people into an area that’s populated with people, that has people running around there," he said. “It’s a big area of concern for me. I have a fiancée. She hunts with me. She hunts on the ground. I’m also worried about her being on the ground and people not shooting safely around her.”

DEC Weighs in on Police-Run Plan

An email was sent to the DEC about the city’s decision to have its police department coordinate the program.

Its response:

“The City would be the managing lead and administrator if they were to develop a police run hunt. If the City police managed a localized hunt it would provide more direct regulation related to deer that travel onto lands outside the jurisdiction of the hunt.

“Unless the City of Batavia seeks a special permit from DEC for additional harvests, opportunities or methods, via the Deer Management Assistance Program or Deer Damage Permit program, then their hunt program would simply fit within the framework of our general deer hunting regulations (seasons, tags, implements, etc.). Batavia may opt to set specific controls that are more restrictive than State regulations, but they could not be more liberal.”

Previously: City Council seeks public input as it forwards deer management plan to its August meeting

Previously: Council, manager attempt to smooth things over with their deer management plan committee

Previously: BREAKING: City's deer committee resigns in 33 second meeting this morning

Previously: Police department to manage Batavia's deer culling plan that places restrictions on city property

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