National restaurant chain Chipotle, founded in Denver in 1993, has its eye on Towne Center at Batavia for a new location according to a special use permit application filed on its behalf by COR Development Company, owners of the plaza.

The building is the former location Metro Mattress in the same structure as Game Stop and Five Guys.

If approved, the location would be modified to include a drive-thru and outdoor seating.

Chipotle, with more than 2,000 locations nationwide, specializes in Mexican-style cuisine and especially known for its build-your-own burrito bar. 

The application for a special use permit and site plan review will be heard this month by the County Planning Board before being sent to the Town of Batavia Planning Board.

Neither COR nor Chipotle, at least so far, have filed an application with Genesee County Economic Development Center for any tax abatements.

Syracuse-based COR Development has received $6 million is tax abatements -- to help finance the construction of the strip mall in 2006, and then remodel a portion of it in 2013.

Tax abatements for retail developments, which are authorized by Genesee County Economic Development Center, are controversial in New York and have been criticized by both Comptroller Thomas Dinapoli and Sean Ryan, a member of the Assembly representing Buffalo.

When COR sought its second round of tax abatements in 2013, the anticipated retailers going into the area once occupied by Lowe's were Dick's, Marshall's and Kohl's, though DIck's seemed to be the only sure thing at the time.

The GCEDC Board approved the $1.7 million in abatements with a finding that the tax relief would help bring new business to Batavia that would provide goods and services that are not readily available to local residents from current retailers.

It's important to note, that the proposed location for Kay's -- sandwiched between the AT&T Store and Sally's Beauty Supply -- is not part of that 2013 expansion and is not covered by the second around of abatements, though it is covered by the 2006 round of $4.3 million.

We've contacted a representative of COR Development for comment and have not received a response.  

Lease agreements are not public record, so we don't know whether Kay Jewelers is receiving a discounted rent bolstered by the tax breaks.

Officials at GCEDC were unaware of COR's intention to lease space to Kay and have not offered a comment on the plans.

Batavia is served by two locally owned jewelry stores: Valle's, on Jackson Street, and Lambert's, on West Main Street.

Jim Lambert said he's heard rumors for months that Kay was planning to open in Batavia and was disappointed to learn the new shop would be in a tax-subsidized development.

"Nobody gave me any tax breaks to open my business," Lambert said. "Everything we do, we do on our own. We don't get anything."

Kay Jewelers, with an advertising budget that includes radio, TV and glossy national magazines, plus the ability to heavily discount, absorb losses and give credit to high-risk borrowers will provide the local shops with formidable competition, Lambert said.

"For a place like us or Valle's, you just can't compete with their budgets for advertising and so forth," Lambert said.

He said he finds it interesting that Kay would open in Batavia, with a population of less than 25,000, when the chain is closing stores elsewhere.

"I'd be surprised if they could do $1 million here," he said. 

It's not like they don't have several other stores in Western New York already, he said.

"Personally, I didn't think it would actually happen," Lambert said. "I thought Kay's would be smarter than invest all that money in Batavia, but they afford to lose money for years and use it as a tax write-off. I can't afford to lose money."

The owners of Valle's wanted to get more information on the issue before commenting.

Besides Valle's and Lambert's, Kay will be competing with JC Penney and Walmart. Lambert noted that Walmart is already the largest seller of jewelry in the nation.

How much more can the market be divided and everybody still stay in business? Lambert wondered. Given the revenue demands of the chain, he said he will be surprised if Kay lasts in Batavia through two Christmas seasons, but in the meantime, the local businesses could be hurt substantially.

A subdivision of Batavia Towne Center to make way for a Kohl's Department Store was approved by the Town of Batavia Planning Board on Tuesday night.

The subdivision is necessary, according to Kate Johnson, of COR Development (top photo) because Kohl's needs its building on its own parcel for financing, tax and insurance purposes.

Kohl's will own its building, but COR will continue to own the land.

A subdivision carves a parcel of land from an existing parcel to make a new parcel with its own tax ID number.

Kohl's is planning 56,883-square-foot building roughly in the area of the former Lowe's garden center.

Johnson also revealed that Marshall's is planning a store next to Dick's Sporting Goods and said a fourth store is planned for the former Lowe's space, but said she can't mention the name of the store.

Previously, it was reported that the discount chain 5 Below was planning a store for the location.

Town officials are also considering a sidewalk for pedestrians that would connect Batavia Towne Center and Batavia Downs as well as an extension of Richmond Avenue through to Veterans Memorial Drive.

The subdivision would make it possible for Kohl's Department Store to own its own property inside the shopping center, much like Target does now.

Kohl's would be purchasing the parcel from COR Development.

In June, the Genesee County Economic Development Center Board approved $1.8 million in new tax abatements for COR (on top of the $4.6 million in tax breaks COR received from GCEDC in 2006), ostensibly to attract new businesses that provide goods or services not readily available in Genesee County.

Kohl's is a department store chain that sells furniture, clothing, bed and bath items and other general merchandise.

The store will be located where Lowe's once had its garden center, just south of the new Dick's Sporting Goods.

To the north of Dick's will be a Five Below and possibly Marshall's; both are discount retailers.

In order for Kohl's to own its own parcel, the property currently owned by COR must be subdivided.

All subdivisions must go through a public hearing, which is a chance for the public to learn the facts of the project relevant to the subdivision and comment on the issue.

The same process was used to subdivide Batavia Towne Center for Target. A portion of the tax breaks secured by COR in 2006 are now applied to the Target property.

While it's possible for Kohl's to apply to transfer tax abatements received by COR to the new parcel, Rachael Tabelski, director of marketing and communications for GCEDC, said the agency has yet to receive an application for the tax abatements from Kohl's.

The hearing will be held at Batavia Town Hall, 3833 W. Main Street Road, Batavia, at 7:30 p.m., Jan. 7. Written comments will be accepted prior to that date.

Today workers just about completed installing the Dick's Sporting Goods sign on the former Lowe's building.

Syracuse-based COR Development received $1.8 million in local tax breaks in order to retrofit the building so Dick's could come to town and compete against existing locally owned sporting goods stores.

One store, Fisher Sports, has already closed because of the preferential treatment given to COR by the Genesee County Economic Development Center.

Dick's is expected to open within a couple of months.

Under state law, in order for state sales tax abatements to be awarded to a retail development project, a finding must be made that meets a specified requirement. The finding must be made by the Genesee County Economic Development Center Board and confirmed by the chief executive -- in this case, Hancock -- of the government agency overseeing the IDA. 

For the COR project, the GCEDC board passed a resolution finding that the proposed retail project would provide goods and services not readily available to Genesee County residents.  The only confirmed tenant for the space at the time was -- and still is -- Dick's Sporting Goods.

Hancock said she was not available to respond within the deadline set by The Batavian. We received her answer today. Below are the questions we e-mailed and her e-mailed response.

Questons:

1. Did you conduct any independent research to substantiate the board's decision?

2. At the time you wrote the letter, what did you know about the proposed tenants for the retail space? Were the names of all the businesses communicated to you, and if so, was it your understanding that contracts had been signed or whether these businesses were just proposals?

3. On what factual basis did you base your decision to confirm the finding? What is it about the proposed businesses that caused you to reach the conclusion that they would provide goods and services not readily available in Genesee County?

4. What do you say to a comment such as Mike Barrett's, that tax incentives for retail are like "using your own tax money to put yourself out of business"?

5. Should the existing businesses in Genesee County that must now compete against subsidized national chains receive any tax breaks or other mitigation to level the playing field for them?

Hancock's Response:

Dear Howard;

I do appreciate your forthright and direct manner. It is refreshing. Howard, I am going to frame my reply by indicating how I proceeded to educate myself regarding the proposed project. I hope it covers the intent of your request.

The Legislature does appoint the GCEDC Board. We believe they are a group of outstanding citizens with very strong business sense…as demonstrated by their own careers. They are also committed to the economic health of our community, or they wouldn’t be spending hours of their valuable time volunteering on the GCEDC Board.  Because they have a strong business sense, they also have a very strong respect for the law and carefully follow the latest and most accurate legislature and regulations guiding IDAs. I attended the meeting where they discussed the issue thoroughly. At a subsequent meeting they voted in favor of proceeding with the project.

The Legislature has an attorney. It would be foolhardy for me to sign an official letter without checking the legality of the document with our attorney. He is a careful attorney and checks out his information on many levels. He researched the law and provided me with a copy of the statute as recently amended. He also gave me his written opinion as to the requirements of the law and its application to this project. I was assured that we were acting within our legal rights.

The Genesee Economic Development Council (sic) was required to hold a public hearing and make specific findings of fact before awarding incentives, and did so on this matter.   I did attend the hearing and heard a positive presentation and only six persons spoke against the development.

Howard, I remember how that area looked before the development. It was sad. The lack of development in that area did not result in a healthy Batavia downtown. It looks, and is, more vibrant now, not only in that Town of Batavia area, but downtown as well. We hope to keep it that way…and better. I am most hopeful and confident that each step we take to attract new and suitable businesses to our area…will benefit all of us. Howard, I know you and I share the same desire for a successful, livable, and economically healthy community. We may not agree on everything, but our goals are surely the same.

If IDAs broadly interpret the law and push through subsidies for projects that should be outside its scope, then reforms may be necessary, DiNapoli said.

"They should certainly interpret it as narrowly as possible," DiNapoli said. "Having not been a Legislator at the time, I can't overly interpret on their behalf the intent. But what I think we'll do with IDAs that are too broadly interpreting that exception is, we'll make recommendations and work with legislators to tighten up that definition, if that seems necessary to curtail the use of IDA incentives for retail."

DiNapoli was in Batavia this afternoon for a meet-and-greet fundraiser hosted by the Genesee County Democrats at Larry's Steakhouse.

Throughout a six-minute conversation with The Batavian, DiNapoli made it clear he doesn't believe IDAs should be, as a general rule, handing out tax incentives to retail projects.

Asked whether retail chains really wouldn't come to a community unless they get tax breaks, DiNapoli said "that probably varies from community to community," but went on to explain the problem, as he sees it, with such IDA incentives.

"The kind of retail projects we've seen in recent years are the kind of projects that in the long term do not promote the kind of job creation and economic development that would really make a lasting difference in a community," DiNapoli said.

"I continue to have very healthy skepticism of the value of such incentives. As we always point out, there is a cost to the communities that isn't fully realized, so it underscores that the kinds of economic development (undertaken) should be of greater significance, more long lasting, have a transformational impact, and retail doesn't really provide that."

In early May, the Genesee County Economic Development Center Board approved $1.8 million in tax incentives for COR Development to remodel the vacant space at Batavia Towne Center formerly occupied by Lowe's Home Improvement.

The package includes a reduction in property taxes and forgiveness of state and local sales taxes on building material and store fixtures.

The state law prohibits IDAs from giving away state sales tax money unless certain findings are made (there is no law that prohibits other tax breaks for retail projects). The potential findings are that the project is in a highly distressed area, is a tourist destination or will provide goods and services not readily available to area residents.

It was on the last exception that the GCEDC board based its decision on. There was no evidence presented at any public meeting to substantiate the finding.

The only known tenant at the time of the vote was Dick's Sporting Goods.

Genesee County has five small retail outlets that sell sporting goods, four of which are locally owned.

Among the arguments put forward by GCEDC CEO Steve Hyde in support of tax breaks for COR is that he needs that Lowe's space filled in order to attract major corporations to projects such as WNY Stamp and the Genesee Valley Agri-Business Park.

"I'm not sure I buy that argument," DiNapoli said. "I'm not in a position to judge that, but that argument is a stretch."

DiNapoli acknowledged that interpretation of the law is largely left up to the local IDAs.

"Even the report we put out every year (on IDAs in NYS), even that is limited by the fact that it's self-reported information," DiNapoli said. "As people have pointed out, IDAs, as well as other authorities in New York, tend to operate with a level of autonomy that I think doesn't provide a maximum opportunity for accountability.

"As you point out," he added, "there are certain exceptions and there certainly there isn't any easy way to clamp down on an IDA that might be too generous in interpreting that exception."

In these mini-press conferences, reporters are only given enough time to ask a few questions and it's difficult to ask follow-up questions, so I fumbled through my question (which really should have been a two- or three-parter), trying to cram in as much information into a short time as possible (and it was still a pretty long-winded question).

Another media outlet has reported that Cuomo was critical of the retail tax subsidies given to COR. The quote used: “It wasn’t the smartest investment of money."

The quote, in my view, is being taken out of context.

Here's Cuomo's full response to my question:

Your case is fact specific and I would have to look at the actual facts to see what they did. We had proposed IDA reforms. I believe there are economies that I can find there and I believe there are incidents where you can find it wasn't the smartest investment of money. That's why, that's one of the reasons I like the approach we're talking about here today. It's simple. It's clean. It doesn't have a lot of bureaucratic red tape. It's very easy to administer. Very few government officials required to administer it. So I think it's preferable to a lot of things we've done in the past.

Included in Cuomo's budget was a reenacted law meant to curtail IDAs providing tax breaks to retail projects. I asked Cuomo what the intent of that law was. He said, "Just improve the process and address the kind of abuses you've been talking about." He then said thank you and turned and left.

I didn't report any of this because I didn't find it particularly newsworthy. He couldn't address the specific local issue (hardly surprising, but I had to ask) and his answer to the more general "intent" question referenced my own question, which by his own admission, he didn't know much about. That seemed like a kind of circular logic that didn't make a lot of sense.

However, given that another media outlet used the quote, and though I don't mean to be critical of a fellow reporter, I feel obliged to put the quote in context.

Q. According to the best available information, at the time the GCEDC board passed the resolution finding that COR's project would provide goods and services not readily available, only one of the proposed tenants was known and two others were in negotiations. How can such a finding be made without a certainty as to the exact tenants? What if COR were to change the tenants to include, say, a liquor store and/or a jewelry store (two business categories well represented in Batavia)?

A. We cannot comment on private negotiations between a developer and prospective tenants.  Like every project that is presented to our board, we have to rely on the information provided to us by the applicant which included a confidential disclosure of not only the known Dick’s project but two additional tenants as well. If the tenants that ultimately reach an agreement with the developer fail to fulfill the new criteria as defined by state law, we would ask our legal counsel for an opinion as to whether the applicant is living up to their end of the agreement and initiate appropriate claw backs. We are confident that COR will fulfill their obligations as they are a reputable developer.

Q. GCEDC has asserted that the COR project is bringing in retail with goods and services not readily available in Genesee County, but there's never been any specific information from GCEDC to substantiate this claim. What exactly is it about the known COR tenants that provides goods and services not readily available in Genesee County? Beyond the assertion, what are the facts to back up the assertion?

A. Again, we are relying on information provided by the applicant that the tenants both know and where private negotiations are occurring will provide goods and services that are not readily available in our community. We confident that COR will fulfill their commitments as it pertains to the GCEDC board’s finding which allows for GCEDC participation in the project under the retail exception as a part of the new state law.

Q. Does GCEDC have any obligation to provide mitigation for the tax breaks given to COR to the existing retailers, be they an independent business such as Batavia Marine or long-standing national chains such as Kmart (which also sells sporting goods)?

A. Any business in the community can submit an application for assistance to our agency and if they fulfill criteria such as the creation of new jobs and investment then they may be eligible for assistance. Our goal is to help businesses create jobs and bring new investment to our community and we stand ready to do everything we can to do that. We encourage businesses to learn more about the incentives provided by our agency. Information about these incentives as well as an application for assistance are available on our Web site at www.gcedc.com.

Q. Calculating from COR's own sales tax estimates, their tenants will generate somewhere in the neighborhood of $26 million in annual sales. On what basis are we to believe that Batavia is a marginal market in need of tax incentives in order to attract these retail businesses? The figures appear to be right in line with Dick's per store gross sales average, which means they should be able to project $500,000 in net annual profit. At that kind of return, do these retail stores really need tax breaks in order to come to Batavia? Aren't the things that make Batavia an attractive place to do business -- centrally located in a large rural area, Thruway proximity, promising economic growth -- sufficient for retail without tax breaks, and if it not, what will keep these business in town when the subsidies run out?

A. The fact that we do not have large retailers like Dick’s indicates that Batavia is a marginal market, however as we grow our economy through projects like Alpina and Muller Quaker and longer term STAMP, we will become a destination market. The fact remains, the developer applied for tax relief to conduct an adaptive reuse and expansion of the property at Batavia Towne Center that will create jobs and new investment in our community and just as important the application submitted fulfills the criteria for retail under the new state law.

Q. According to COR, the stores will invest a collective $11 million in opening their stores. If a retail business is willing to make that kind of financial comment to a community, how can we believe that tax incentives are critical to attracting national retail to Batavia?

A. Think about that for a moment. If you had an opportunity to make a $1.8 million investment over 10 years, which is essentially what our incentive package totals, and the return on that investment was $11 million worth of capital investment, who would not make that deal. On top of that, our investment of $1.8 million is going to be returned in the first year alone based on sales tax revenue generation which will benefit our community and help keep property tax rates down.  Without our assistance, there is no $11 million capital investment and no new sales tax revenue for our community thereby creating additional pressure to raise property taxes which hurt residents and businesses.

Q. GCEDC has asserted that it's bad for the community and bad for attracting business to have Lowe's vacant. In the time since it's been vacant, GCEDC has landed two major tenants and is about to land a third for the Genesee Valley Agri-Business Park. What evidence is there that a vacant Lowe's hurts business development?

A. When both Alpina and Muller Quaker were touring the area, the Lowe’s store was in fact still open which showed the companies that we did in fact have a vibrant retail center immediately located off of the I-90. Moreover, we are trying to take a holistic approach to economic development here in our community. You seemingly are taking the view that the Lowe’s vacancy does not “hurt” business development; we take the view, based on our years of experience in the company attraction business, that a vibrant retail center located at the gateway of our community enhances our ability to attract companies to our community in this very competitive world of economic development.

Q. GCEDC has asserted that it's bad to have a vacant Lowe's, but COR has said that it's bad for the rest of Batavia Towne Center to have a vacant Lowe's. Doesn't COR have a strong motivation to lease that space even without tax abatements?

A. I don’t want to single COR out; they are a prominent developer and like many developers they have options and choices as to where to lure their retail clients. Our decision was based on an application that our board believes fulfills the criteria under the new state law specific to retail projects. We believe the return on investment that will be generated through the tax assistance provided will create a vibrant towne center.

Q. What do you say to a comment such as Mike Barrett's, that tax incentives are like "using your own tax money to put yourself out of business"?

A. Alpina and Muller Quaker and the related economic benefits would not have occurred without the incentives being provided through the GCEDC. To the contrary, we are using incentives to create new jobs and new wealth and subsequently new tax revenues to make our community more prosperous and an even better place to work, live and play. I can assure you that Alpina and Muller Quaker are not putting local dairy farmers out of business.

Q. Based on our polls and nearly daily discussions with people in our community, it's difficult to find local residents who support tax breaks going to COR. Is it appropriate for GCEDC to go against the wishes of the vast majority of Genesee County residents on such an important issue?

A. Genesee County has a population of approximately 60,000 residents. A public hearing was held in the evening which was open to the public; about 30 residents attended and six spoke against the project during the hearing. One letter was received at the offices of the GCEDC opposing the project and was officially included in the transcripts of the hearing. The board was provided a written copy of the transcripts from the public hearing prior to voting to approve the adaptive reuse and expansion project at Batavia Towne Center. I think if we were to start relying on polling that admittedly in not statistically accurate and to use that data to make decisions about economic development, you would not see many businesses even contemplating coming to our community.

Q. Will GCEDC continue to have a policy of providing tax breaks to retail projects even though there is a significant body of research that shows tax incentives to retail have no tangible return to local communities and even though the vast majority of Genesee County residents oppose such tax breaks?

A. The GCEDC as a matter of practice does not pursue retail projects. This is evidenced to our not participating in the Tim Horton’s project locating at the west end of Batavia and the McDonald’s project planned for Aldi plaza in the City on the east end. We will continue to comply with state law while advancing our vision and mission to provide a positive place to do business for all companies. There is a significant body of evidence that shows there is a tangible return to local communities. To claim that the “vast majority” of residents oppose such tax breaks is subjective at best without any real statistically accurate information to substantiate such a claim.

I often agree with Steve Hawley, as Libertarians often do, when republicans champion fiscally responsible positions. But that wasn't the case on May 17th. That day, Mr. Hawley put out a press release lauding GCEDC's successful effort to offer abatement of taxes to COR Development. COR will in turn use those subsidies to offset costs of remodeling their property in the Batavia Towne Center in order to fit the needs of the next tenant, Dick's Sporting Goods. In exchange for tax abatements approaching 2 million dollars, we are promised new local jobs and additional sales tax revenue.

As I recall, we heard that same promise once before when COR received six million dollars in tax abatement to develop their property for among others, the long gone Lowes Corporation. So now, we double down on our bet, while we hope and pray that Dick's Sporting Goods delivers as COR has promised. But let's look a bit closer at these promises. Is COR or Dick's promising full-time jobs? Are they full-time jobs that also pay a living wage? No, of course they aren't. During their public hearing COR talked in terms of full-time job "equivalents." That is corporate double talk for part-time and low-wage jobs, the kind of jobs that are fine for students but don't work so well for single moms who need to pay the rent. That is the dirty little secret that COR won't tell you and Dick's won't tell you, and sadly on May 17th, Steve Hawley also neglected to tell you. To add insult to injury the most handsome job created by GCEDC goes to the guy with the greatest vested interest in perpetrating the illusion of quality jobs. Yes, the best job that GCEDC has created to date is the one that is held by its President and CEO Steve Hyde.

But let's not forget the promise of sales tax revenues. Are we significantly increasing the size of the sales tax pie by subsidizing the development of Dick's Sporting Goods? I wonder. I would like to know what portion of any sales tax revenue produced by Dick's would still have been realized from a similar sale at Olympia, T-Shirts Etc., Barrett's or perhaps Fisher Sports. No one knows. For COR to promise significant increases in tax revenues is at best speculative and certainly self-serving. We should remain skeptical whenever we are promised sales tax revenue and jobs with one hand while the other hand lobbies our County Legislature for nearly a quarter of a million dollars for its own funding next year.

Growing government through Economic Development Corporations (EDCs) in order to address the problems created by big government....high taxes, over regulation, cumbersome bureaucracy is simply counter intuitive. Our economic problems are systemic. They are symptomatic of a state government gone awry. I am unwilling to accept that the answer to big government is to create a whole new bureaucracy with a CEO making close to a quarter of a million dollars a year. We need to stop creating the good jobs on the backs of the taxpayers  while promising a small sliver of the pie to the people who pay the bills. I am not ready to pretend differently. I am not ready to concede hope that we can do better. What we need is more truth and transparency in our government, not more promises that may or may not be kept. I agree with Steve Hawley much of the time. This time, I don't.