Key issue in Whole Foods Plaza lawsuit will proceed to trial

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A state Supreme Court justice dismissed 15 of 16 motions filed by opponents of Whole Foods Plaza along Monroe Avenue in Brighton, but ordered that the final motion be decided at a bench trial, meaning part of the retail development is still in jeopardy.

The Daniele Family, developers of the plaza, and Brighton Grass Roots, the lead citizens group opposing the development because of its size and infringement on park space, both claimed victory following Wednesday’s ruling by Justice J. Scott Odorisi.

“We are pleased that Justice Odorisi has dismissed all but one of the claims brought about simply to delay this project,” Anthony Daniele, co-developer, said in a news release. “We look forward to the December trial where we will present the facts for why the last claim can be dismissed.”

Motions on matters such as missteps by the town board, failure to obtain proper approvals and open meeting law violations were dismissed.

But the final matter — whether the town of Brighton complied with state law in granting a zoning variance four years ago — will go to trial on Dec. 5.

Should a judge determine that developers misled the town or the town improperly granted public property to a private entity, buildings that already have been constructed may face demolition.

“They’ve been warned six times, first by Justice (John) Ark and then by Justice Odorisi, that they were building at their own risk,” said Howie Jacobson, president of Brighton Grassroots. “If we prevail at trial and it goes to vote, they’ll have to take down one or possibly two buildings.”

At issue is whether the developer had the right to encroach on the Auburn Trail, a recreational path that runs along a former railroad bed. While used for walking, running and biking, the trail has never been totally secluded and parts traversed parking lots and roadways.

Within the zoning approval came permission for the developer to re-route the trail in order to build some of 30,000 square feet of retail space, beyond the 50,000-square-foot Whole Foods property and the 2,000 square feet for Starbucks, Jacobson said.

Because the town of Brighton has designated the Auburn Trail as dedicated park space, obtained through easements nearly three decades ago, the state constitution prohibits the gifting of land without a public referendum, Justice Odorisi writes in his ruling.

The easement issue actually dates back to 1997 and construction of the former Mario’s Restaurant by Mario Daniele. The restaurant occupied part of the land that was used for the plaza.

Court papers say Mario Daniele originally agreed to an easement of the trail property in exchange for acquisition of property owned by Rochester Gas & Electric so he could build his restaurant, but never honored the easement.

“Mario Daniele secured the extra RG&E land in order to expand his parcel,” Justice Odorisi wrote. “He got the quintessential benefit of the bargain — for which he now wants to renege — even though his project filings admit a full Auburn Trail across the lot. This does not sit well with the court as it is possibly a fraud against the town, and by virtue, the public.”

Justice Odorisi also said he was troubled by the town’s failure to protect the public easements by not holding Mario Daniele to his promise.”

The ruling on the easement said Daniele’s credibility, the intent of RG&E in relinquishing the land and the town’s actions are reasons why the court must hear testimony of involved parties at trial before a decision can be made.

“What we’ve wanted all along, we now have: to be heard, and to have the proper zoning oversight,” Jacobson said.

The developers, meanwhile, believe they are one large step closer to putting years of litigation behind them.

“This decision to dismiss almost all claims is a relief and with Whole Foods working diligently to open and the rest of the plaza being fully leased, we look forward to the grand opening of a great development for the town of Brighton and the residents of Monroe County,” Anthony Daniele said.

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