Clover/Allen's Creek Neighborhood Ass'n v. M & F, LLC

Docket NumberIndex Nos. E2018000937,E2018002894,E2018002961,E2018007330,E201807331
Decision Date28 September 2022
Citation2022 NY Slip Op 51394 (U)
PartiesClover/Allen's Creek Neighborhood Association, LLC, Petitioner-Plaintiff, and Save Monroe Ave., Inc., 2900 Monroe Ave., LLC, Cliffords of Pittsford, L.P., Elexco Land Services, Inc., Julia D. Kopp, Mark Boylan, Anne Boylan, and Steven M. Deperrior, Petitioners-Plaintiffs-Intervenors, v. M & F, LLC, Daniele SPC, LLC, Mucca Mucca, LLC, Mardanth Enterprises, Inc., Collectively d/b/a AS Daniele Family Companies, Town of Brighton, New York, Town Board of the Town of Brighton, New York, NMS Allens Creek, Inc., Rochester Gas and Electric Company, and any persons or entities found to have an interest in the property subject to this action, Respondents-Defendants. Save Monroe Ave., Inc., 2900 Monroe Ave., LLC, Cliffords of Pittsford, L.P., Elexco Land Services, Inc., Julia D. Kopp, Mark Boylan, Anne Boylan, and Steven M. Deprerrior, Petitioners-Plaintiffs, v. Town of Brighton, New York, Town Board of the Town of Brighton, New York, Town of Brighton Planning Board, Daniele Management, LLC, Daniele SPC, LLC, Mucca Mucca, LLC, Mardanth Enterprises, Inc., M & F, LLC, the Daniele Family Companies, First Baptist Church of Rochester, Rochester Gas and Electric Corporation, New York State Department of Transportation, 2717 Monroe Avenue LLC, Atlantic Hotel Group, Inc., Mamasan's Monroe, LLC, Qing Kai Sun, Plum Garden 66, Inc., 2799 Monroe Avenue, LLC, Hemisphere Hotels, Inc. f/k/a Apex Hospitality, Inc., 2815 Monroe Retail Office, LLC, 2835 Monroe Holdings, LLC, Monroe Office Suites, LLC, 2875 Monroe Clover, LLC, Cloverpark Ltd. Partnership, and John Does Nos. 1-10, Respondents-Defendants. Brighton Grassroots, LLC, Petitioner-Plaintiff, 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, Rochester Gas and Electric Corporation, NMS Allens Creek, Inc., the First Baptist Church of Rochester, Atlantic Hotel Group, Inc., 2717 Monroe Avenue, LLC, Mamasan's Monroe, LLC, 2799 Monroe Avenue, LLC, Qing Kai Sun, Hemisphere Hotels, Inc., A.S.M. Hospitality, LLC, 2815 Monroe Retail, LLC, 2835 Monroe Holdings, LLC, 2875 Monroe Clover, LLC, Monroe Office Suites, LLC, Cloverpark Limited Partnership, New York State Department of Transportation, John Does 1-20, and ABC Corporations 1-20, Respondents-Defendants. Brighton Grassroots, LLC, Petitioner-Plaintiff, v. Town of Brighton Planning Board, Town of Brighton Town Board, Town of Brighton, M85F, LLC, Daniele SPC, LLC, Mucca Mucca, LLC, Mardanth Enterprises, Inc., Daniele Management, LLC, Collectively d/b/a AS Daniele Family Companies, Rochester Gas and Electric Corporation, NMS Allens Creek, Inc., the First Baptist Church of Rochester, Atlantic Hotel Group, Inc., 2717 Monroe Avenue, LLC, Mamasan's Monroe, LLC, Plum Garden 66, Inc., 2799 Monroe Avenue, LLC, Qing Kai Sun, 2815 Monroe Retail, LLC, 2835 Monroe Holdings, LLC, 2875 Monroe Clover, LLC, Monroe Office Suites, LLC, Cloverpark Limited Partnership, New York State Department of Transportation, John Does 1-20, and ABC Corporations 1-20, Respondents-Defendants. Save Monroe Ave., Inc., 2900 Monroe Ave., LLC, Cliffords of Pittsford, L.P., Elexco Land Services, Inc., Julia D. Kopp, Mark Boylan, Anne Boylan, and Steven M. Deprerrior, Petitioners-Plaintiffs, v. Town of Brighton Planning Board, Daniele Management, LLC, Daniele SPC, LLC, Mucca Mucca, LLC, Mardanth Enterprises, Inc., M & F, LLC, the Daniele Family Companies, First Baptist Church of Rochester, Rochester Gas and Electric Corporation, New York State Department of Transportation, 2717 Monroe Avenue, LLC, S & A Hospitality, Inc., Mamasan's Monroe, LLC, Qing Kai Sun, Plum Garden 66, Inc., 2799 Monroe Avenue, LLC, Hemisphere Hotels, Inc. f/k/a Apex Hospitality, Inc., 2815 Monroe Retail Office, LLC, 2835 Monroe Holdings, LLC, Monroe Office Suites, LLC, 2875 Monroe Clover, LLC, Cloverpark Ltd. Partnership, Town of Brighton, New York, Town Board of the Town of Brighton, New York, and John Does Nos. 1-10, Respondents-Defendants, and Clover/Allen's Creek Neighborhood Association, LLC, Intervenor-Respondent-Defendant.
CourtNew York Supreme Court
Unpublished Opinion

Attorneys for Petitioner CAC: Laurie Styka Bloom, Esq. &amp Robert Burgdorf, Esq.

Attorneys for Petitioner SMA: Charles Malcomb, Esq. &amp Aaron Saykin, Esq.

Attorney for Petitioner BGR: Mindy Zoghlin, Esq.

Attorney for the Town Respondents: John Mancuso, Esq.

Attorneys for the Developer Respondents: Warren Rosenbaum, Esq. & John Nutter, Esq. & Erin Elmouji, Esq.

Attorney for Respondent RG & E: John Forbush, Esq.

AMENDED GLOBAL DECISION

HONORABLE J. SCOTT ODORISI, J.S.C.

These five cases all deal with the Whole Foods Project. Pending before this Court are sixteen summary judgment motions as follows:

Index #

Movant

Docket #

Motion #

E2018000937

SMA

587

22

E2018000937

CAC

676

23

E2018000937

Town

749

26

E2018000937

Developers

839

24

E2018002894

SMA

361

14

E2018002894

Developers

450

15

E2018002894

Town

495

17

E2018002961

BGR

528

14

E2018002961

Developers

548

16

E2018002961

Town

593

15

E2018007330

Developers

986

25

E2018007330

Town

1031

27

E2018007330

BGR

1121

26

E2018007331

SMA

359

14

E2018007331

Town

448

15

E2018007331

Developers

538

16

For the reasons set forth hereinafter, Petitioners' motions are all DENIED, and Respondents' motions are DENIED IN PART AND GRANTED IN PART.

LAWSUIT FACTS
Key Background Information

These five cases are the crux of a panoptic course of litigation against the Whole Foods Project (the "Project") located on 10.1 acres on the north side of Monroe Avenue in the Town of Brighton (the "Town"). The Project is being sponsored by the Respondent/Defendant Developer Companies (the "Developers"). Petitioners/Plaintiffs Clover/Allen's Creek Neighborhood Association, LLC ("CAC"), Save Monroe Avenue, Inc. ("SMA"), and Brighton Grassroots, Inc. ("BGR") are all citizens groups opposed to the Project (collectively "Petitioners").

Auburn Trail

One of the common, main issues in the cases relates to the Auburn Trail. As to its genesis, the Auburn Trail is a former railroad bed that Rochester Gas and Electric ("RG &amp E") acquired in 1965. The subject portion of the Auburn Trail - which crossed open parking lots and driving areas - was used by the public for various recreational purposes for decades. The Town identified the Auburn Trail as an item to eventually acquire. In 1985, the Developers' principal - Mario Daniele - began planning his restaurant "Mario's." The commercial property owners at the Project locale were interested in RG & E's land for parking and other traffic needs, including rear access to Allens Creek Road. In 1996, Mario Daniele applied for a re-subdivision of RG & E land, and acknowledged the Auburn Trail in his filings. That application was approved in June upon the express condition of the Town receiving a 10' wide public access easement. Mario Daniele's gift to the Town was acknowledged and lauded by many sources. In 1997, RG & E recorded deeds and an Access Easement Agreement executed by Mario and Flora Daniele, and with reference in exhibits, maps, and descriptions to public easements directly to the Town. Subsequently, all of the other property owners conveyed to the Town public, pedestrian easements - which the Town signed off on accepting "all rights and responsibilities created herein" - but not Mario Daniele. Those easements permitted the Town to maintain a pedestrian pathway, and also required it restore the Auburn Trail to "a park like condition" after any work thereon. Thereafter, and as reflected in various public records and deposition testimony, the Town focused on the Auburn Trail as an area to be further improved and more formally developed. Also, the Town responded to obstruction complaints in an effort to keep the Auburn Trail clear for use.

Whole Foods Project

In February of 2015, the Developers interposed their Project proposal which started with a request for Incentive Zoning Approval ("IZA"). As part of the proposal, the Developers noted the Auburn Trail's location across the whole property. In exchange for the IZA, the Developers promised certain amenities, such as: improvements to the whole Auburn Trail Brighton span; new traffic signaling preservation of adjoining open space; and, a promise not to seek property tax breaks. The Developers' proposal drew community opposition. In March of 2015, the Town Board referred the initial IZA proposal to the Town Planning Board. The Planning Board issued an advisory report concerning the amenities and traffic issues on May 6, 2015, which the Town Board took under review.

After the Developers' amended proposal, the Town Board classified the Project as a Type I Action under the State Environmental Quality Review Act ("SEQRA") due to the possibility of significant environmental impacts, and also designated itself the lead agency. After public input, the Town Board issued a Final Scoping document and directed the Developers to prepare a Draft Environmental Impact Statement ("DEIS").

In January of 2016, the Developers submitted the DEIS, but the same was rejected as incomplete. Revised DEIS' were re-submitted in April and May. After acceptance, the final DEIS went through public hearings, along with the IZA. After public comment, the Town Board instructed the Developers to submit a Supplemental DEIS ("SDEIS"). After two rejected supplements, and in April of 2017, the Town Board accepted the SDEIS for another round of public review. As part of the review, SMA submitted a forensic accounting to contest the amenities' values, and in which it...

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