Rochester developer considering appeal in COMIDA conflict of interest case

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The developer of a proposed $53 million apartment community in Pittsford is contemplating an appeal of a state Supreme Court ruling that allowed a county agency to determine if its own board member violated policy when voting to deny tax incentives for the project.

The County of Monroe Industrial Development Agency (COMIDA) in May denied by a 4-3 vote an application from Rochester-based Mark IV Enterprises for $7.8 million in tax breaks to build Westport Commons along the Erie Canal near the Monroe Avenue.

Pittsford Canalside Properties, LLC, a subsidiary of Mark IV, then filed suit in state Supreme Court in Monroe County in August, alleging that because COMIDA board member Joseph Alloco owned apartment communities near the project, a clear conflict of interest existed and he was required to recuse himself from voting.

The suit also alleged Alloco attempted to influence voting during discussions on the incentive package.

But in a Jan. 3 ruling, Justice Sam L. Valleriani said there was no evidence to support the improper influence claim. He did, however, write in his decision that COMIDA’s policy “imposed a duty on any board member to disclose an actual or perceived conflict that may not be known or considered prior to the vote.”

Because that possible conflict was not disclosed, Justice Valleriani remanded the dispute back to COMIDA for its board to determine whether a conflict existed.

His ruling further said the May vote would stand if COMIDA found there was no conflict of interest, but that a new vote would be necessary — excluding Alloco — should COMIDA determine there was a policy violation.

On Feb. 16 COMIDA ‘s Governance Committee determined no conflict of interest existed and then on Feb. 20 the full board, with Alloco excused from the room, unanimously agreed with the finding.

A notice of appeal on all counts of Justice Valleriani’s ruling was filed on Jan. 12 by David Rothenberg of Rothenberg Law, Mark IV’s attorney in the case.

“I think there are issues an appellate court could consider and we are evaluating whether to perfect the appeal,” Rothenberg said.

If built, Westport Commons would feature 156 apartments as well as a restaurant and waterfront areas for residents and the public. Mark IV’s believed it qualified for a PILOT agreement, plus sales and mortgage recording tax exemptions, not only because of what the project will bring to the area but for investing more than $5 million in remediation of contaminated soil at the former Monoco Oil Co. site along with $2.5 million in green space, roadways and infrastructure upgrades.

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