OBSERVER Photo by Jo Ward Refresco in Dunkirk wants fixes made to its water infrastructure.

The owner of the property tied to the Refresco plant is trying to force the city of Dunkirk to replace water infrastructure to the Dunkirk business.

Atwater Capital LLC, headquartered in Delray Beach, Fla., has filed an Article 78 lawsuit in state Supreme Court in Mayville to compel Dunkirk to take immediate action to replace the water pump, water storage tank, pump house and connecting water lines to Refresco after the items were damaged Dec. 4 in a fire in the pump station that supplies Refresco’s fire protection station with water.

The property consists of a 187,000-square-foot building and 105,000 square foot warehouse, with the property straddling the line between the city of Dunkirk and the town of Dunkirk. Some of the property is leased to Refresco and some is vacant.

According to the lawsuit, since Atwater acquired the property, Dunkirk has owned, operated and maintained the water infrastructure adjacent to the property. The water infrastructure provides enough water and booster pumps at high pressure to operate the commercial sprinkler system and fire hydrants in case of fire. In addition to Atwater’s property, the water infrastructure is used by Muldowney Development Inc.

Atwater has paid a special district tax for maintenance and operating costs for the water infrastructure. According to the court filing, the company has paid more than $80,000.

Atwater officials state the Dec. 4 fire at the pump station damaged the water infrastructure badly enough that it can’t provide additional water supply and pressure to the property, which means the property’s sprinklers and fire hydrants aren’t working properly. A complete replacement is necessary.

“On or about December 9, 2020, the town of Dunkirk contacted Refresco, the tenant at Atwater’s property, and mandated that Refresco conduct a documented facility tour/audit every 30 minutes, 24 hours a day, to ensure that there are no fire or fire hazards present,” attorney Joseph Calimeri of Jamestown firm Wright, Wright and Hampton wrote in the lawsuit. “The town of Dunkirk’s unilateral requirement has caused Refresco to have employees or independent contractors on site at all times to conduct the mandated audits. Such a requirement has caused significant expense and severe hadrship to both Refresco and Atwater.”

An email from Ryan Mourer, Dunkirk town code enforcement officer, to Refresco on Dec. 9 stated the repair was supposed to be at least eight weeks, with the town official saying the town was reaching out to the state for recommendations how to handle the situation.

“I reached out to (the Department of State) for further direction and or waiver of procedures,” Mourer wrote. “But as of right now the fire watch is to be implemented immediately and until the system is back up and running or the state allows us some relief of this procedure. For this inconvenience I apologize on behalf of the town of Dunkirk.”

Calimeri wrote Atwater has worked with Dunkirk to find a solution, but the company states Dunkirk has not provided a timeline or information to assure work to repair the water infrastructure is under way. Insurance money has been paid, but the amount is not enough to pay to replace the water system.

“As of the filing of this petition, it has been approximately 13 weeks since the water infrastructure was destroyed,” Calimeri wrote. “Dunkirk has provided no updated timeline as to when the water infrastructure will be replaced and has not provided any assurances that it will prioritize such action. … Atwater can no longer sit idle without appropriate water infrastructure, and the inaction of Dunkirk is negligent, and the decision not to prioritize a replacement is arbitrary and capricious.”