NY Daily Record Since 1908
A state appeals court’s split ruling on an aspect of the proposed Whole Foods project in Brighton is a victory for everyone, if you hear the various sides tell it.
The appeal, filed by the Clover/Allen’s Creek Neighborhood Association against developer Daniele Family Businesses, the Town of Brighton and its supervisor and town board, was decided Friday by the Appellate Division of the State Supreme Court.
This is just one of many suits and appeals filed by groups opposed to the Daniele project, which would include a Whole Foods grocery store, a drive-through Starbucks and several other buildings totaling 84,000 square feet. The town approved the project last year under incentive zoning, which can make exceptions to zoning limits in exchange for amenities, in this case having the developer extend and maintain a town recreational trail, add a traffic light to allow people to make left turns into the plaza more easily, and make access changes to eight businesses on the opposite side of Monroe Avenue that could alleviate traffic risks.
The neighborhood association had charged that moving the path of the Auburn Trail — a recreational trail running behind businesses on the north side of Monroe Avenue — comes under the Public Trust Doctrine and therefore a state legislative approval or referendum is necessary. Additionally, the group charged that the town violated public meeting laws by posting information about a particular meeting just a few hours before the meeting was held.
The appeals court said the Monroe County Supreme Court erred by saying Public Trust Doctrine doesn’t cover easements — the trail is on property ruled by an easement. The appeals court also ruled in favor of the town on the open meetings law issue, saying the law doesn’t specify how far in advance of the meeting information must be posted, just that it has to happen prior to the meeting.
Two other groups that have sued over the project — Save Monroe Avenue and Brighton Grassroots, but were not a part of this appeal — declared the rulings as a major setback for the Danieles.
“The developer will have to start again and properly size this project,” asserted a statement by Brighton Grassroots.
Save Monroe Avenue, a group that Aaron M. Saykin of Hodgson Russ, LLP in Buffalo says represents local businesses, claimed the decision “places the Whole Foods Plaza project in serious jeopardy.”
The attorney representing the neighborhood association, Laurie Styka Bloom of Nixon Peabody LLP, was less declarative about the decision, saying she expected the decision to fall the way it did, allowing the neighborhood group to carry on its efforts to require legislative approval or a referendum before the project can go forward.
The town and developer, on the other hand, said the opponents are mischaracterizing what the decision says.
“This decision does not mean that anything has to go back to the legislature. When they say that, they are misleading the public,” said Town Supervisor William Moehle. Regarding the Public Trust Doctrine, he described the ruling as “purely a procedural decision. I think it’s pretty close to a non-event. … I am absolutely confident that when it’s finally reviewed it will come out in the town’s favor.”
He was also pleased that the court held in favor of the town on whether open-meeting rules had been violated.
As for the developer, spokesman Danny Daniele said, “The court agrees these lawsuits for the most part are baseless and intended to delay new grocery competition in Rochester.”
Both Moehle and Daniele said the trail is a non-issue because it was decided some time ago to leave the easement where it is, and gained a new easement on which the trail will now be built.
“That would be moving a trail so that would require approval,” Bloom said. “I know they’ve said different things at different times. What was approved (by the town) would be an obliteration of the existing trail.”
All sides agree on one thing: The legal battle over this project isn’t over yet.
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