Mixed ruling on Whole Foods appeal

A state appellate court has put in question two parts of a decision on the Whole Foods plaza litigation, ruling Friday partly in favor of a group opposing the size of the development on Monroe Avenue in Brighton.

The decision also upheld parts of the town’s support for the project that groups had challenged.

A number of suits were filed against the town of Brighton and the developer, the Daniele Family Cos.,  after the town approved in September 2018 the Daniele proposal to build the first Whole Foods grocery store in the Rochester area. When a state court held for the defendants, Brighton Grassroots and Save Monroe Avenue, two opposition groups, appealed separately.

In supporting parts of Brighton Grassroots’ appeal, the Court of Appeals also denied that group’s and Save Monroe Avenue’s attempts to overturn the town’s use of incentive zoning for the project, and Brighton Grassroots’ claim that the town violated Open Meeting Laws.

The appellate panel returned to the lower court the question of whether the town violated the Public Trust Doctrine by changing the easement on a nature trail skirting the property without holding a town referendum.

“We are thrilled with this ruling! It confirms what we’ve been warning everyone about since day one — that the town has consistently failed to follow the law …,” said Howie Jacobson, president of Brighton Grassroots. “We continue to call on the town to make the developer go back and do this the right way through the standard zoning process.”

The town, however, says the ruling is not a victory for the opposition groups.

“All they did was send it down to the lower court,” said Brighton Town Supervisor William W. Moehle. “They absolutely did not say we violated the Public Trust Doctrine. In the lower court we will show that we did not violate the public trust doctrine. No referendum is needed and no referendum is allowed.”

Moehle said state law on public referendums is quite limited in what issues may be subjected to that type of vote, and incentive zoning is not one of them.

He also noted that the town plans to change the nature trail, not the easement it was on, by keeping the old easement in the parking lot and adding a new one for the altered trail.

The two groups appealed the case in their ongoing fight to, as Jacobson calls it, “right-size” the project. Under traditional zoning rules, the project could not be 84,000 square feet, and there would be other restrictions. The town has maintained that the size of the project, including a 50,000-square-foot supermarket, a drive-through Starbucks, and other businesses, is allowable under incentive zoning that would gain additional amenities from the developer.

The Daniele family had agreed to move and extend the Auburn Trail, a nature trail that uses an easement on the north edge of the property. Additionally the Daniele family agreed to install an additional traffic light on Monroe Avenue, and funnel traffic from various businesses on the opposite side of the street through a single driveway leading to the light, to mitigate traffic concerns.

The opposition groups were appealing a judgment filed about a year ago by state Supreme Court Judge Daniel J. Doyle.

The project would be on property between the Monroe Avenue on-ramps to I-590 and Clover Street, replacing what had been a Daniele family restaurant and Clover Lanes, as well as Mamasan’s restaurant. The Daniele restaurant and bowling alley have been torn down, but Mamasan’s restaurant remains open during the legal dispute. The project was first proposed in early 2015. Another store proposed at the time for Buffalo has been in operation in the suburb of Amherst since 2017.

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