Brighton Grassroots, LLC v. Town of Brighton

• Decision Date: 31 January 2020
• Docket Number: CA 19–00576,1114
• Citation: 179 A.D.3d 1500,119 N.Y.S.3d 331
• Parties: In the Matter of BRIGHTON GRASSROOTS, LLC, Petitioner-Plaintiff-Appellant, v. TOWN OF BRIGHTON, Town of Brighton Town Board, Town of Brighton Planning Board, M & F, LLC, Daniele SPC, LLC, Mucca Mucca, LLC, Mardanth Enterprises, Inc., Daniele Management, LLC, Collectively Doing Business as Daniele Family Companies, Respondents-Defendants-Respondents, et al., Respondents-Defendants.
• Court: New York Supreme Court — Appellate Division

179 A.D.3d 1500

119 N.Y.S.3d 331

In the Matter of BRIGHTON GRASSROOTS, LLC, Petitioner-Plaintiff-Appellant,

v.TOWN OF BRIGHTON, Town of Brighton Town Board, Town of Brighton Planning Board, M & F, LLC, Daniele SPC, LLC, Mucca Mucca, LLC, Mardanth Enterprises, Inc., Daniele Management, LLC, Collectively Doing Business as Daniele Family Companies, Respondents-Defendants-Respondents, et al., Respondents-Defendants.

1114

CA 19–00576

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: January 31, 2020

THE ZOGHLIN GROUP, PLLC, ROCHESTER (MINDY L. ZOGHLIN OF COUNSEL), FOR PETITIONER–PLAINTIFF–APPELLANT.

WEAVER MANCUSO FRAME PLLC, ROCHESTER (JOHN A. MANCUSO OF COUNSEL), FOR RESPONDENTS–DEFENDANTS–RESPONDENTS TOWN OF BRIGHTON, TOWN OF BRIGHTON TOWN BOARD AND TOWN OF BRIGHTON PLANNING BOARD.

WOODS OVIATT GILMAN LLP, ROCHESTER (WARREN B. ROSENBAUM OF COUNSEL), FOR RESPONDENTS–DEFENDANTS–RESPONDENTS M & F, LLC, DANIELE SPC, LLC, MUCCA MUCCA, LLC, MARDANTH ENTERPRISES, INC. AND DANIELE MANAGEMENT, LLC, COLLECTIVELY DOING BUSINESS AS DANIELE FAMILY COMPANIES.

PRESENT: CENTRA, J.P., NEMOYER, CURRAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order and judgment so appealed from is unanimously modified on the law by denying the motions in part with respect to the 9th, 10th and 14th causes of action, vacating the last two decretal paragraphs, and reinstating the 14th cause of action, and as modified the order and judgment is affirmed without costs.

Memorandum: Petitioner-plaintiff (petitioner) commenced this hybrid CPLR article 78 proceeding and declaratory judgment action to, inter alia, annul the determination of respondent-defendant Town of Brighton Town Board (Town Board) approving an incentive zoning application by respondents-defendants M & F, LLC, Daniele SPC, LLC, Mucca Mucca, LLC, Mardanth Enterprises, Inc., and Daniele Management, LLC, collectively doing business as Daniele Family Companies, in connection with a proposed Whole Foods store in respondent-defendant Town of Brighton (Town). Petitioner appeals from an order and judgment that, inter alia, granted the motions of respondents-defendants (respondents) to dismiss certain causes of action and claims in the amended petition-complaint.

Contrary to petitioner's contention, Supreme Court properly dismissed its 11th cause of action, which alleged a violation of Brighton Town Code chapter 113, because there is no private right of action to enforce that provision (see generally Rubman v. Osuchowski, 163 A.D.3d 1471, 1474, 82 N.Y.S.3d 675 [4th Dept. 2018] ).

Even assuming, arguendo, that petitioner's 12th and 13th causes of action challenging the validity of the Town's incentive zoning law (Brighton Town Code ch 209) were timely commenced (see generally Matter of Association for a Better Long Is., Inc. v. New York State Dept. of Envtl. Conservation, 23 N.Y.3d 1, 9, 988 N.Y.S.2d 115, 11 N.E.3d 188 [2014] ), we nevertheless conclude that those causes of action were properly dismissed on the merits because the provisions of the challenged incentive zoning law are consistent with its authorizing legislation (see Town Law § 261-b). Contrary to petitioner's contention, section 261–b does not require an incentive zoning law to specifically adopt a prospective formula for weighing the costs and benefits of awarding any particular incentive under the law.

Contrary to petitioner's further contentions, we conclude that its claims under the Open Meetings Law (Public Officers Law art 7) were properly dismissed. Specifically, petitioner's claim alleging that one or more secret meetings took place as evidenced by a specific press conference is speculative and conclusory (see Matter of Feinberg–Smith Assoc., Inc. v. Town of Vestal Zoning Bd. of Appeals, 167 A.D.3d 1350, 1353, 91 N.Y.S.3d 578 [3d Dept. 2018] ; Residents for More Beautiful Port Washington v. Town of N. Hempstead, 153 A.D.2d 727, 729, 545 N.Y.S.2d 303 [2d Dept. 1989], lv denied 75 N.Y.2d 703, 552 N.Y.S.2d 108, 551 N.E.2d 601 [1990] ), petitioner's claim regarding the online posting of voluminous information prior to the March 28, 2018 public meeting is without merit (see Matter of Clover/Allen's Cr. Neighborhood Assn. LLC v. M & F, LLC, 173 A.D.3d 1828, 1831–1832, 105 N.Y.S.3d 659 [4th Dept. 2019] ), and petitioner's claim regarding the facility used for the February 28, 2018 public hearing is likewise without merit (see generally Matter of Frigault v. Town of Richfield Planning Bd. , 107 A.D.3d 1347, 1351–1352, 968 N.Y.S.2d 673 [3d Dept. 2013] ). In light of our determinations on those claims, petiti...