Opinion
Index Nos. E2018000937 E2018002894 E2018002961 E2018007330 E201807331
09-28-2022
Clover/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.
Attorneys for Petitioner CAC: Laurie Styka Bloom, Esq. & Robert Burgdorf, Esq. Attorneys for Petitioner SMA: Charles Malcomb, Esq. & 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.
Unpublished Opinion
Attorneys for Petitioner CAC: Laurie Styka Bloom, Esq. & Robert Burgdorf, Esq.
Attorneys for Petitioner SMA: Charles Malcomb, Esq. & 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
CAC E2018000937
676
23
E2018000937
Town
749
26
E2018000937
Developers
839
24
SMA E2018002894
361
14
E2018002894
Developers
450
15
E2018002894
Town
495
17
BGR E2018002961
528
14
E2018002961
Developers
548
16
E2018002961
Town
593
15
E2018007330
Developers
986
25
E2018007330
Town
1031
27
BGR E2018007330
1121
26
SMA E2018007331
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 & 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 was claimed that the Developers were getting a $15 million windfall. Finally, and in January of 2018, the Town Board accepted the Developers' final EIS ("FEIS"), and set public hearings on the IZA. The FEIS included a new Auburn Trail By-Pass as the Town was abandoning the current recreational easements. Before yet another round of public hearings, the Developers submitted a second amended IZA proposal purportedly bolstering the offered amenities.
On March 14th, the Town Supervisor held a press conference announcing a 6,300' size reduction, and the prohibition of rear access to the neighborhood side streets via a restrictive covenant. Just days later, the Developers submitted a third amended IZA proposal addressing the preceding new conditions. On March 28th, the Town Board posted its SEQRA findings approving the IZA, which included the Auburn Trail By-Pass and an Access Management Plan ("AMP") to manage traffic.
After the above approvals, the Developers filed - among other things - a Preliminary Site Plan for the Planning Board's consideration. The Preliminary Site Plan reflected the Auburn Trail through the whole site. A June 20, 2018, meeting resulted in comments to the Developers seeking additional information for SEQRA purposes. A series of revised site plans were submitted until the Planning Board issued its SEQRA determination at a meeting on August 15th. That adjudication fully adopted the Town Board's approval. On August 21st, the Developer filed its Final Site Plan, which consideration was merged with the preliminary version. The Final Site Plan noted the Auburn Trail over the entire Project. The Town Engineer provided input on the plans, which were later the subject of a September 17th public meeting, at which public concern was raised over Amazon lockers. The Planning Board ultimately approved both the Preliminary and Final Site Plans, but with a condition that the public recreation easement be maintained during construction. Also in 2018, the Developers filed their subdivision map for the Project which reflects the Auburn Trail running the entire width of the same.
In August 2019, the New York State Department of Transportation ("NYSDOT") issued its own SEQRA decision approving the Project with traffic mitigation measures.
The challenges to the NYSDOT's approvals in Index #'s E2019009850 and E2020009533 are denied.
Relevant Procedural History
In light the foregoing outcomes, and in 2018, Petitioners started suing the Town entities and the Developers on a wide variety of grounds. In 2019, and in prior motion practice, Respondents first denied an easement behind the Whole Foods store. Mario Daniele later testified at his deposition that he did not want people on his land, so he never gave the Town the easement. After dismissal motion practice, appeals, and discovery (see Brighton Grassroots, LLC v. Town of Brighton, 179 A.D.3d 1500 (4th Dept 2020); Save Monroe Ave., Inc. v. Town of Brighton, 179 A.D.3d 1496 (4th Dept 2020); Clover/Allen's Cr. Neighborhood Assn. LLC v. M & F, LLC, 173 A.D.3d 1828 (4th Dept 2019)), the cases are now at the summary judgment posture.
LEGAL DISCUSSION
Petitioners may not have summary judgment relief on the Auburn Trail issues (see One Flint St. LLC v. Exxon Mobil Corp., 145 A.D.3d 1490, 1491 (4th Dept 2016) (party failed to meet its initial burden of establishing its entitlement to summary judgment); Sacchetti v. Vasile Const. Corp., 254 A.D.2d 777 (4th Dept 1998) (same) [Index #: E2018000937 - Docket # 920, p. 9; Index #: E2018002961 - Docket # 855, p. 1]), and Respondents may not either, but some Article 78 claims can be dismissed against them. See e.g. Featherstone v. Franco, 95 N.Y.2d 550, 554 (2000) (affirming rejection of Article 78 case); Fuhst v. Foley, 45 N.Y.2d 441 (1978) (affirming order confirming administrative decision).
Claim Standards
Article 78
Civil Practice Law and Rules ("CPLR") Article 78 exists to provide court review for various administrative determinations. See CPLR 7801 & 7802. Judicial review of administrative action is limited to the facts and record adduced before the agency when the determination was made. See Levine v. New York State Liq. Auth., 23 N.Y.2d 863, 864 (1969); Zembiec v. County of Monroe, 104 A.D.3d 1243, 1245 (4th Dept 2013).
Mandamus Compel
CPLR 7803 (1) provides for mandamus to compel relief when a public official fails "to perform a duty enjoined upon him by law." See also Brusco v. Braun, 84 N.Y.2d 674, 679 (1994); Legal Aid Bur. of Buffalo, Inc. v. Armer, 74 A.D.2d 737 (4th Dept 1980). A petitioner is entitled to mandamus to compel relief only when he/she proves a clear legal right to the relief demanded and the respondent[s] has a corresponding nondiscretionary duty to grant that relief. See Scherbyn v. Wayne-Finger Lakes Bd. of Co-op. Educ. Serv., 77 N.Y.2d 753, 757-758 (1991). Mandamus to compel review involves a request to have a reviewing court order an officer to perform a legally obligated duty involving no form of discretion - normally an act required by law. Id. at 757-758; Heck v. Keane, 6 A.D.3d 95, 99 (4th Dept 2004).
Petitioners' allegation of lacking Planning Board jurisdiction is in the nature of prohibition.
A writ of prohibition is meant to restrain an administrative body who acts without, or in excess of, its jurisdiction. See CPLR 7803 (2); Van Wie v. Kirk, 244 A.D.2d 13, 24 (4th Dept 1998) (writ of prohibition was unavailable). The granting of prohibition relief is appropriate only when a petitioner shows a clear legal right thereto (see Rush v. Mordue, 68 N.Y.2d 348, 352 (1986)), and such a writ is "generally not available to correct common procedural or substantive errors." Town of Huntington v. New York State Div. of Human Rights, 82 N.Y.2d 783, 786 (1993) (granting writ was error). See also Niagara Frontier Transp. Auth. v. Nevins, 295 A.D.2d 887 (4th Dept 2002) (dismissing prohibition application). Thus, prohibition relief is rarely granted, is considered an extraordinary remedy, and is available at best as a matter of judicial discretion and not as a matter of right. See La Rocca v. Lane, 37 N.Y.2d 575, 579 (1975) (upholding prohibition dismissal); Vargason v. Brunetti, 241 A.D.2d 941 (4th Dept 1997) (sustaining prohibition dismissal).
Mandamus to Review
CPLR 7803 (3) permits an administrative determination to be set aside if, it was "made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion..."
In regard to lawful procedure, a failure to substantially comply with procedural requirements - whether statutory or local regulation - suffices as grounds to undo an administrative decision. See Walker v. Town of Hempstead, 84 N.Y.2d 360, 365 (1994); Dalrymple Gravel and Contr. Co. v. Town of Erwin, 305 A.D.2d 1036 (4th Dept 2003). As to this, the Court of Appeals has delineated that:
Not all deviations from statutory procedures will justify vacatur... A rule that rendered every administrative decision void unless it was determined in strict literal compliance with statutory procedure would not only be impractical but would also fail to recognize the degree to which broader public concerns, not merely the interests of the parties, are affected by administrative proceedings... When an administrative body fails to comply with procedural provisions that are merely directory, relief will be granted only if petitioners show that substantial prejudice resulted from the noncompliance...
A different analysis comes into play, however, when a statutory provision is mandatory. In determining whether a provision is mandatory or directory, a court must examine both the language of the statute and the legislative intent underlying it...Matter of Syquia v. Bd. of Educ. of Harpursville Cent. School Dist., 80 N.Y.2d 531, 535-536 (1992) (emphasis added and internal citation omitted). See also Krug v. County of Lewis, 296 A.D.2d 834, 835 (4th Dept 2002) (mandatory requirement must be "strictly enforced").
In regard to an error of law, its meaning is rather clear cut and most often involves an allegation that the agency improperly interpreted or applied a statute or regulation. See New York City Health and Hospitals Corp. v. McBarnette, 84 N.Y.2d 194, 205 (1994). Courts will uphold the interpretation of regulations by the agencies responsible for their administration if such interpretation is reasonable. See Kurcsics v. Merchants Mut. Ins. Co., 49 N.Y.2d 451, 459 (1980); Howard v. Wyman, 28 N.Y.2d 434, 438 (1971). "Where, however, the question is one of pure legal interpretation of statutory terms, deference.... is not required." Toys R Us v. Silva, 89 N.Y.2d 411, 419 (1996). Further "an interpretation that 'runs counter to the clear wording of a [code] provision is given little weight.'" Emmerling v. Town of Richmond Zoning Bd. of Appeals, 67 A.D.3d 1467, 1467-1468 (4th Dept 2009) (citing Excellus Health Plan, Inc. v. Serio, 2 N.Y.3d 166, 171 (2004)).
For purported arbitrary and capricious decisions, the Court of Appeals has decreed that:
The arbitrary or capricious test chiefly 'relates to whether a particular action should have been taken or is justified *** and whether the administrative action is without foundation in fact.' Arbitrary action is without sound basis in reason and is generally taken without regard to the facts.... the proper test is whether there is a rational basis for the... order.Pell v. Board of Educ., 34 N.Y.2d 222, 231 (1974) (internal citations omitted and emphasis added). See also Save Am.'s Clocks, Inc. v. City of New York, 33 N.Y.3d 198, 207 (2019) (dismissing proceeding); 512-3rd St., Inc. v. New York State Liquor Auth., 217 A.D.2d 1010 (4th Dept 1995).
In reviewing alleged arbitrary and capricious administrative determinations, a reviewing court's function is limited to "whether the record contains sufficient evidence to support the rationality of the... determination." Coco v. Zoning Bd. of Appeals, 236 A.D.2d 826, 828 (4th Dept 1997) (dismissing Article 78 case). A petitioner bears the "heavy burden" of proving that the decision was not grounded upon a rational basis. See Rayle v. Town of Cato Board, 295 A.D.2d 978, 980 (4th Dept 2002) (dismissing petition because the petitioners missed their burden of proof) (emphasis added), lv denied, - A.D.2d -, 747 N.Y.S.2d 851. While engaging in Section 7803 (3) review, courts must not make new or substituted judgments (see Pelham Esplanade, Inc. v. Bd. of Trustees of Vil. of Pelham Manor, 77 N.Y.2d 66, 72 (1990); Haher's Sodus Point Bait Shop, Inc. v. Wigle, 139 A.D.2d 950, 951 (4th Dept 1988)), as deference is mandated "even if an opposite conclusion might logically be drawn." Vil. of Honeoye Falls v. Town of Mendon Zoning Bd. of Appeals, 237 A.D.2d 929, 930 (4th Dept 1997) (dismissing petition). See also Matter of Beck-Nichols v. Bianco, 20 N.Y.3d 540, 559 (2013) (noting "extremely deferential" standard of review).
As to the last category, an allege abuse of discretion, it is essentially the same test as the arbitrary and capricious standard. See Older v. Bd. of Ed. of Union Free School Dist. No. 1, Town of Mamaroneck, 27 N.Y.2d 333, 337 (1971). In assessing discretionary decisions, a reviewing court's scope of inquiry is a "very limited one." Rochester Colony, Inc. v. Hostetter, 19 A.D.2d 250, 254 (4th Dept 1963).
Declaratory Judgment
Another of Petitioners' requested form of relief is a declaratory judgment as set forth in CPLR 3001 which provides that:
The supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed.CPLR 3001. See also CPLR 3017 (b); Morgenthau v. Erlbaum, 59 N.Y.2d 143, 147 (1983).
A declaratory judgment is available in a wider range of circumstances than Article 78 relief. See Morgenthau v. Roberts, 65 N.Y.2d 749 (1985). As the Court of Appeals has held:
The use of a declaratory judgment, while discretionary with the court, is nevertheless dependent upon facts and circumstances rendering it useful and necessary. The discretion must be exercised judicially and with care... It is usually unnecessary where a full and adequate remedy is already provided by another well-known form of action. The general purpose of the declaratory judgment is to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations.James v. Alderton Dock Yards, 256 NY 298, 305 (1931) (emphasis added and internal citation omitted). See also Union Tr. Co. of Rochester v. Main & S. Streets Holding Corp., 245 AD 369, 372 (4th Dept 1935).
Summary Judgment Standard
As to summary judgment motions, the CPLR provides that:
A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact.CPLR 3212 (b). See also Jacobsen v. New York City Health and Hosps. Corp., 22 N.Y.3d 824, 833 (2014) (moving "burden is a heavy one").
CPLR 3212 (b)'s summary judgment provision means that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" necessitating a trial. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986). Proof offered by a moving party must be in admissible form. See Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980); Dix v. Pines Hotel, Inc., 188 A.D.2d 1007 (4th Dept 1992). Failure of the moving party to make the statutorily required prima facie case mandates denial of the motion, regardless of the sufficiency of the opposing papers. See Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985).
Once a prima facie showing has been made, then "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvarez, 68 N.Y.2d at 324. See also Ferluckaj v. Goldman Sachs & Co., 12 N.Y.3d 316, 320 (2009); Mortillaro v. Rochester Gen. Hosp., 94 A.D.3d 1497, 1499 (4th Dept 2012).
In assessing a summary judgment motion, "the focus of the court's concern is issue finding, not issue determination, and the affidavits should be scrutinized carefully in the light most favorable to the party opposing the motion." Robinson v. Strong Mem. Hosp., 98 A.D.2d 976 (4th Dept 1983). See also Branham v. Loews Orpheum Cinemas, Inc., 8 N.Y.3d 931, 932 (2007); Victor Temporary Services, a Div. of Victor United, Inc., a Subsidiary of Walter Kidde, Inc. v. Slattery, 105 A.D.2d 1115, 1117 (4th Dept 1984). Summary judgment is a drastic measure as it deprives a party of his or her day in court and will normally have res judicata effects. See Ugarriza v. Schmieder, 46 N.Y.2d 471, 474 (1979); Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231 (1978); Harrigan v. Super Products Corp., 237 A.D.2d 882, 883 (4th Dept 1997).
The above standards will next be applied to each category of Petitioners' claims.
Auburn Trail
The overall Auburn Trail claims are compromised of some sub-set issues, namely: the public trust doctrine; permissive referendum, and easement existence and scope.
Public Trust
Petitioners insist upon a public trust doctrine deviation due to the alienation of, or substantial interference with, the publically vested Auburn Trail in favor of a private development without state legislative approval.
Respondents, including RG & E, dispute that the public trust doctrine applies when the Auburn Trail was not formally dedicated parkland, nor was it impliedly so, and there also is no alienation or even a substantial intrusion.
Petitioners have a compelling case (see Matter of Avella v. City of New York, 29 N.Y.3d 425 (2017) (proposed new developments on previously-authorized stadium site violated the public trust doctrine) [Index #: E2018000937 - Docket # 1001, p. 22]), but not one that can be resolved on summary judgment.
For well over a century it has been axiomatic that "parkland is impressed with a public trust, requiring [state] legislative approval before it can be alienated or used for an extended period for non-park purposes." Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623, 630 (2001) (project required state legislative approval) (emphasis added) [Index # E2018000937 - Docket # 838, p. 6]. See also Meriwether v. Garrett, 102 U.S. 472, 513 (1880); Williams v. Gallatin, 229 NY 248 (1920); Potter v. Collis, 156 NY 16, 30 (1898); Brooklyn Park Com'rs v. Armstrong, 45 NY 234, 243 (1871); Stephenson v. Monroe County, 43 A.D.2d 897 (4th Dept 1974) (granting summary judgment to the plaintiffs on public trust claim).
Courts have construed a park to be:
'a piece of ground inclosed for purposes of pleasure, exercise, amusement or ornament'... 'a strip of land'... set apart either for pleasure ground or for purposes of exercise, amusement or decoration'... land which is 'devoted to any use which tends to promote popular enjoyment and recreation'... or land which 'facilitate[s] free public means of pleasure, recreation, and amusement'Dennis R. House, Supervisor Town of York, Opns St Comp, 1992 No. 92-49, 1992 WL 475962, at *1 (collecting cases and internal citations omitted). See also Rivet v. Burdick, 255 AD 131, 134 (4th Dept 1938).
The New York State Comptroller has opined that the public trust doctrine applies "even though the land has never been used as a park." Thomas J. Egan, Esq. Town of Woodbury, Opns St Comp, 1981 No. 80-772, 1981 WL 17017, at *1. Also, the "public trust doctrine does not depend on whether the municipality holds the property in fee simple or whether the municipality's property interest is subject to the rights of others." Clover/Allen's Cr. Neighborhood Assn. LLC, 173 A.D.3d at 1830.
Contrary to Respondents' statements, "[t]o establish that property has been dedicated as a park or for public use, formal dedication by the legislature is not required." Id. ("a parcel of property may become a park by... implied acts..." {emphasis added}) (emphasis added). See also Gewirtz v. City of Long Beach, 69 Misc.2d 763, 771 (Nassau Co Sup Ct 1972), aff'd, 45 A.D.2d 841 (2d Dept 1974). The Court of Appeals recognized that qualifying land may be impliedly dedicated, and as to this:
The Town cites Clover/Allen's Cr. Neighborhood Assn. LLC, but does not acknowledge this key and expansive "public use" language. The fact that the Town never called the Auburn Trail a "park" is not controlling as a mere missing label should not be elevated above actual substantive use.
A party seeking to establish such an implied dedication and thereby successfully challenge the alienation of the land must show that (1) "[t]he acts and declarations of the land owner indicating the intent to dedicate his land to the public use [are] unmistakable in their purpose and decisive in their character to have the effect of a dedication" and (2) that the public has accepted the land as dedicated to a public use...Matter of Glick v. Harvey, 25 N.Y.3d 1175, 1180 (2015) (there needs to be an "unequivocal manifestation of an intent to dedicate the parcels as permanent parkland") (emphasis added and internal citations omitted). See also City of Buffalo v. Delaware, L. & W.R. Co., 190 NY 84, 97 (1907); Clover/Allen's Cr. Neighborhood Assn. LLC, 173 A.D.3d at 1830; Powell v. City of New York, 85 A.D.3d 429, 431 (1st Dept 2011) (a parcel of land may constitute a park by implication, such as by a continuous use of the parcel as a public park) [Index #: E021800937 - Docket # 838, p. 7] ; Angiolillo v. Town of Greenburgh, 290 A.D.2d 1, 11 (2d Dept 2001) [Index #: E2018002961 - Docket # 546, p. 31].
The Town's own cases recognize implied dedication.
Angiolillo is factually distinguishable as it involved a parkwayi.e., a road - not a recreational zone like the Auburn Trail.
"[T]he burden of proof lies on the party asserting that the land has been dedicated." Romanoff v. Vil. of Scarsdale, 50 A.D.3d 763, 764 (2d Dept 2008). For dedication intent, courts look heavily to the originating designating owner, not as much to subsequent ones, for the controlling purpose and character. See Hubbard v. City of White Plains, 231 N.Y.S.2d 313, 315 (Westchester Co Sup Ct 1962), aff'd, 18 A.D.2d 674 (2d Dept 1962). "The evidence of such intent may rest in writing or oral declarations, or in the acts of the parties concerned." Flack v. Vil. of Green Is., 122 NY 107, 113 (1890). "Long continued and uninterrupted use of land by the public... furnishes strong evidence of dedication." Id. at 114 (emphasis added). See also Cook v. Harris, 61 NY 448, 454 (1875); Vil. of Croton-On-Hudson v. Westchester County, 38 A.D.2d 979, 980 (2d Dept 1972), aff'd, 30 N.Y.2d 959; Matter of Friends of Petrosino Sq. ex rel. Fleischer v. Sadik-Khan, 42 Misc.3d 226, 230 (NY Co Sup Ct 2013) ("[d]edication of parkland is implied where the City holds land out as a park and the public uses the land as a park"), aff'd, 126 A.D.3d 470 (1st Dept 2015). "Once established, the dedication is irrevo-cable [sic]." Riverview Partners, LP v. City of Peekskill, 273 A.D.2d 455 (2d Dept 2000) (implied dedication was established via maps, signs, public use, and municipal maintenance) (emphasis added). See also Gewirtz, 69 Misc.2d at 771 (finding dedication by public use).
Whether the subject parcel became a park under the implied dedication method is a question of fact which is to be determined from the totality of the evidence. See Coney Is. Boardwalk Community Gardens v. City of New York, 172 A.D.3d 1366, 1368 (2d Dept 2019) (finding no public park for community garden that was specifically identified as only temporary); Matter of Lazore v. Bd. of Trustees of Vil. of Massena, 191 A.D.2d 764, 766 (3d Dept 1993) (citing 1984 Opns Atty Gen 93 [1984 WL 186566, *1]) [Index #: E021800937 - Docket # 838, pp. 7 & 9]. See also Ciaccia v. Moore, 184 A.D.2d 1075, 1076 (4th Dept 1992) ("'[T]he question of dedication and acceptance is one of fact'" citing Domus Dev. Corp. v. Monroe County Pure Water, 84 A.D.2d 929, 930 (4th Dept 1981)) [Index #: E021800937 - Docket # 838, p, 9].
The Auburn Trail's usage for decades is certainly not temporary, so Coney Is. Boardwalk Community Gardens is factually distinguishable.
"Alienation" occurs when a municipality wishes to sell, lease, or discontinue municipal parkland, even if only temporarily. See Matter of 10 E. Realty, LLC v. Inc. Vil. of Val. Stream, 17 A.D.3d 474, 476 (2d Dept 2005); Capruso v. Vil. of Kings Point, 34 Misc.3d 1240 (A) (Nassau Co Sup Ct 2009). "[L]egislative approval is required when there is a substantial intrusion on parkland for non-park purposes, regardless of whether there has been an outright conveyance of title and regardless of whether the parkland is ultimately to be restored." Friends of Van Cortlandt Park, 95 N.Y.2d at 630 (emphasis added). See also Capruso v. Vil. of Kings Point, 23 N.Y.3d 631, 638 (2014). Whether there is interference with the reasonable use and enjoyment of an easement is determined by the surrounding circumstances - which involve questions of fact. See Brill v. Brill, 108 NY 511, 516 (1888); Joss v. Niagara Mohawk Power Corp., 41 A.D.2d 596 (4th Dept 1973). See also Lewis v. Young, 92 N.Y.2d 443, 452 (1998) (landowner may not unilaterally change a right of way if that change impairs enjoyment of the easement holder's rights); McWeeney v. Lambe, 138 A.D.3d 796 (2d Dept 2016) (recognizing that a mere nuisance can interfere with an easement).
Finally, and as cautioned:
Sound public policy forbids that there should be any power to divert [a park]... to a private use, for, once such power being assumed, the dangers which may follow either from favoritism or ill-judgment may speedily hamper or practically destroy the fundamental purpose of the public use.Lake George Steamboat Co. v. Blais, 30 N.Y.2d 48, 51 (1972) (nullifying lease for public land) (emphasis added). See also Matter of Avella, 29 N.Y.3d at 432.
Here, the totality of the motion records lean in Petitioners' favor (see Kenny v. Bd. of Trustees of Inc. Vil. of Garden City, 289 A.D.2d 534, 535 (2d Dept 2001) (trial court properly found that the property was impressed with a public trust)), but not so conclusively as to warrant summary judgment rulings.
Historically, it is undisputed that the public used the Auburn Trail for a variety of recreational purposes for decades. Cf. Bronx Council for Envtl. Quality v. City of New York, 177 A.D.3d 416 (1st Dept 2019) (pier that was closed to the public for over a decade, and then used mainly for storage, was not a park) [Index #: E2018000937 - Docket # 838, p. 9]; Shapiro v. Town of Ramapo, 29Misc.3d 1220 (A) (Rockland Co Sup Ct 2010) (abandoned farmland that was slotted to be transformed into a golf course, but never was, did not qualify as parkland), aff'd as mod, 98 A.D.3d 675 (2d Dept 2012) [Index #: E2018000937 - Docket # 1063, p. 4]; Pearlman v. Anderson, 62 Misc.2d 24, 26 (Nassau Co Sup Ct 1970) (proof of use as a park was "meager"), aff'd, 35 A.D.2d 544 (2d Dept) [Index #: E2018000937 - Docket # 1063, p. 13]. Given this long-standing usage, the Town understandably identified it in public records as something to be developed for recreation in the late 1980's and early 1990's. The first real chance to start doing so arose in the 1990's during the RG & E subdivision process. In exchange for subdivision approvals, the landowners - including Mario Daniele - were to convey a 10' wide public recreational easement to the Town. After getting Town approval, RG & E and the owners executed the 1997 Access Easement Agreement. Petitioners make much of the 1997 Access Easement Agreement as proof of an express dedication to the Town - which was not a party to the same. RG & E now denies any such intent, and instead highlights its retained easement along the Auburn Trail. Contrary to Respondents' position, retention of some RG & E control over the Auburn Trail does not totally negate some form of dedication - a precise ruling the Fourth Department has already made. See Clover/Allen's Cr. Neighborhood Assn. LLC, 173 A.D.3d at 1830 (public trust doctrine does not depend on "whether the municipality's property interest is subject to the rights of others.").
1989 Parks Tour, 1990 Master Plan, and 1990 Parkland Acquisition Study. Also, the Town contacted RG & E in 1989 about getting access to the Auburn Trail for public usage. Respondents discount those documents, and state that the Trail plans were only "aspirational" and likening it to a simple sidewalk. This is not just generic property like a sidewalk but part of park-focused effort which the Town now tries to walk back.
The other records that come into play are the deeds from the property owners conveying public use easements to the Town - which the Town signed and accepted per its plans. See Fischer v. Liebman, 137 A.D.2d 485, 487 (2d Dept 1988) (an important indicator of the grantor's intent is the deed's language). Those deeds incorporated the 1997 Access Easement Agreement, provided for public pedestrian use, and required restoration to a "park like" condition after any work thereon. See BPGS Land Holdings, LLC v. Flower, 198 A.D.3d 1344, 1346 (4th Dept 2021) (intent is manifested by the deed's language); Modrzynski v. Wolfer, 234 A.D.2d 901 (4th Dept 1996) (same). This is strong proof of express dedication. Cf. Powell, 85 A.D.3d at 431 (property was not acquired for park purposes as reflected by the fact that the public's access was restricted 70% of the time); Matter of Douglaston and Little Neck Coalition v. Sexton, 145 A.D.2d 480, 481 (2d Dept 1988) (subject property was acquired for other than park purposes) [Index # E2018000937 - Docket # 838, pp. 7, 8 & 11]. Unlike Powell and Matter of Douglaston and Little Neck Coalition, but consistent with prior plans, the Town advertised the Auburn Trail; to wit, in the 2012 Walk Brighton and the 2015 survey for a new comprehensive plan. By the time of the 2015 Whole Foods Project application, even the Developers confirmed the Auburn Trail's existence in various submissions, including the ensuing 2018 subdivision map. These line of records collectively are compelling proof of an express park dedication (see In re Vil. of Lynbrook, Town of Hempstead, Nassau County, 64 Misc.2d 98, 101 (Nassau Co Sup Ct 1970) (property was regarded as a park)), but are not dispositive especially given RG & E's motion stance denying such express dedication intent.
The 2015 "Envision Brighton" document has the Auburn Trail in the existing parkland section. The Town downplays the same, and instead emphasizes that a 2006 resolution dedicated some parks, but not the Auburn Trail, thereby showing its intent not to hold the same in trust. Any internal inconsistency in Town records simply adds to the issues of fact needing a trial.
For an implied dedication, the showing of long-standing public use of the Auburn Trail is highly relevant. So is the Town's control over the Auburn Trail via addressing access complaints. However, implied dedication is a question of fact, and even though this Court is the trier of fact, this issue needs to be buttressed by live witness testimony to augment certain records. The matter is document heavy, but not exclusively so. For example, dedication involves credibility factors from RG & E, the Developers' predecessors, and the Town officials - which cannot be resolved on a cold motion record. In particular, any conflict/inconsistencies between contemporaneous records, prior deposition testimony, and Respondents' and RG & E's current motion affidavits - which try to defeat any dedication intent - creates credibility issues not appropriate for summary judgment analysis. See Tronolone v. Jankowski, 74 A.D.3d 1721, 1722 (4th Dept 2010). See also Nationwide Agribusiness Ins. Co. v. Heath, 187 A.D.3d 1526, 1527 (4th Dept 2020) ("self-serving statements of an interested party which refer to matters exclusively within that party's knowledge create an issue of credibility which should not be decided... ").
In its response, the Town relies heavily upon a June decision from the Third Department - 61 Crown St., LLC v. City of Kingston Common Council, 206 A.D.3d 1316, 1319 (3d Dept 2022) - in which a parcel with only "some park-like attribute[s]" was not subject to the public trust doctrine [Index #: E2018000937 - Docket # 1001, p. 21]. In that case, the alleged "park" was an excess "sidewalk setback" area of a defunct outdoor parking lot. The Auburn Trail is not so generic. In 61 Crown St., LLC, the parcel was not managed by the municipality, but here the Auburn Trial was at least overseen by the Town by addressing citizens' complaints. Also, in 61 Crown St., LLC the public's use was temporary and sporadic via a once-a-year seasonal festival promoted by a private entity. This is not true here given the historic recreational use of the Auburn Trail. As dedication involves questions of fact, this Court remains reluctant to dispose of the same on a summary judgment posture like in 61 Crown St., LLC. Respondents' own cases confirm that implied dedication is a question of fact. See Matter of Levine v. Vil. of Is. Park Bd. of Zoning Appeals, 95 A.D.3d 1125, 1127 (2d Dept 2012) [Index #: E2018000937 - Docket # 1001, p. 22]; Matter of Lazore, 191 A.D.2d at 766 [Index #: E2018000937 - Docket # 1063, p. 3]; Ciaccia, 184 A.D.2d at 1076 [Index #: E021800937 - Docket # 838, p, 9].
Besides the dedication element, the alienation and/or substantial interference element is also a question of fact. It appears that there is possible complete alienation by the Town constructively abandoning the original easement. See Brighton Grassroots, LLC, 179 A.D.3d at 1501-1502 (noting the possibility of constructive abandonment). Cf. Cannon Point Preserv. Corp. v. City New York, 183 A.D.3d 416, 417 (1st Dept 2020) (park would not be alienated by adding a bridge that terminated at its edge) [Index #: E2018000937 - Docket # 838, p. 9]. Unlike Cannon Point Preserv. Corp., the Project at issue is much more intense and invasive - potentially erasing the Auburn Trail - an error that the By-Pass may not cure.
Also, the substantial interference allegation is debatable. No parking spaces are placed over the Old Auburn Trail, so there is no pedestrian impediment. The Auburn Trail went through a parking lot and driving lanes before so its condition now is not really a change, but as Petitioners highlight the quantity and type of traffic may be vastly different, especially at the key Whole Foods loading dock zone. The key factor is the amount of delivery trucks to the loading dock. Some say two tractor trailer deliveries a day to Whole Foods, while others say up to fourteen [twelve smaller box truck deliveries]. Projected deliveries to the remaining plaza buildings is unclear. Again, this contested usage analysis creates uncertainty which is not suitable for a summary judgment adjudication.
In sum, this Court finds that the public trust doctrine claim must be deferred to a Bench Trial with live witness testimony.
Permissive Referendum
Petitioners proffer another legal principle, namely the need for a town-wide vote, i.e., a permissive referendum, to approve the Town's decision to give up the Auburn Trail. BGR touts that there is no "good deal" exception to this legal rule.
Respondents says that a permissive referendum was not needed as there was not a resolution to convey or abandon any easements.
Petitioners may be correct. Compare Town of Guilderland v. Swanson, 41 Misc.2d 398, 400 (Rensselaer Co Sup Ct 1963) (grant was beyond the power of the Town Board, without a ratification at a referendum), mod, 29 A.D.2d 717 (3d Dept 1968), aff'd, 24 N.Y.2d 872 (1969) with Matter of Conners v. Town of Colonie, 108 A.D.3d 837, 839 (3d Dept 2013) (as the transaction was only the "functional equivalent of a lease" shifting operational control of a municipal landfill, it was not a conveyance subject to permissive referendum) [Index #: E2018000937 -Docket # 838, p. 19].
Matter of Conners is factually distinct given that a land interest was not transferred, only operational management; therefore, it was proper in that precise context to find against a permissive referendum error.
As an overarching principle, a town's gift of public property violates the state constitution. See NY Const art. VIII, § 1; Matter of 10 E. Realty, LLC v. Inc. Vil. of Val. Stream, 12 N.Y.3d 212, 215 (2009); Grand Realty Co. v. City of White Plains, 125 A.D.2d 639, 640 (2d Dept 1986) (the defendants' sold certain parcels of city land) [Index #: E2018002961 - Docket # 546, pp. 96-97].
"A town is a creature of statutory law and as such can act only within the perimeters of the applicable legislation." Town of Evans v. Catalino, 103 Misc.2d 261, 265 (Erie Co Sup Ct 1979), mod, 88 A.D.2d 780 (4th Dept 1982). See also City of Buffalo v. Stevenson, 207 NY 258, 260 (1913); Envirogas, Inc. v. Town of Westfield, 82 A.D.2d 117, 123 (4th Dept 1981). The Town Law provides in relevant part that:
2. Acquisition and conveyance of real property... upon the adoption of a resolution, convey or lease real property in the name of the town, which resolution shall be subject to a permissive referendum...
Town Law § 64 (2) (emphasis added). See also In re Town Bd. of Town of Islip, 12 N.Y.2d 321, 328 (1963); Matter of Sonbyrne Sales, Inc. v. Town Bd. of Town of Onondaga, 98 A.D.3d 1297, 1299 (4th Dept 2012) (abandonment of town land was part of permissive referendum); Matter of LaBarbera v. Town of Woodstock, 29 A.D.3d 1054, 1056 (3d Dept 2006).
Conveyances include transactions affecting easements as they qualify as interests in real property. See Jacobsen v. Inc. Vil. of Russell Gardens, 201 N.Y.S.2d 183, 186-187 (Nassau Co Sup Ct 1960); Opns St Comp, 1982, No. 82-180, 1982 WL 20279, at *1. Therefore, a conveyance of a town-held easement is subject to a permissive referendum. See Opns St Comp, 1980, No. 80-267, 1980 WL 8028, at *1.
This Court is not convinced by Respondents' lead argument that Section 64 (2) does not apply as there was no formal resolution exclusively about title to the Auburn Trail. "Resolution" means "[f]ormal action by a... body authorizing a particular act, transaction, or appointment." Black's Law Dictionary (11th ed. 2019). Yes, the Town Board did not hold a vote on the discrete issue of giving the Developers the Auburn Trail easements for their private endeavors, but that outcome was implicit in its larger approval of the IZA. That is an ample "resolution" to possibly trigger an ensuing referendum. To adopt Respondents' reasoning would totally vitiate the rule and allow town boards to evade the same by packaging land deals inside larger projects. This rule swallowing could not have been the State Legislature's intent in crafting Section 64 (2). See generally Matter of Suarez v. Williams, 26 N.Y.3d 440, 451 (2015) ("courts should not interpret a statute in a manner that would render it meaningless"); Matter of Long v. Adirondack Park Agency, 76 N.Y.2d 416, 420 (1990) (a court should give a statute a "sensible and practical over-all construction, which is consistent with and furthers its scheme and purpose" {emphasis added}); Matter of D'Amico v. Felten, 122 A.D.2d 528 (4th Dept 1986) (court interpretation of the law should not defeat its very purpose).
The Court acknowledges Petitioners' contention that a missing formal, and stand alone, resolution is an independent error.
Next, this Court also believes that there might have been a conveyance via the Town's abandonment - even if just constructive - of the Auburn Trail, but again it is an issue of fact. An easement may be lost via abandonment. See Will v. Gates, 89 N.Y.2d 778, 783 (1997); Snell v. Levitt, 110 NY 595, 604 (1888) ("The question of abandonment is one of intention, depending upon the facts of the particular case."). See also Brighton Grassroots, LLC, 179 A.D.3d at 1501-1502 (noting "constructive abandonment" as potentially aggrievable). Easement abandonment must be shown by clear and convincing proof. See Consol. Rail Corp. v. MASP Equip. Corp., 67 N.Y.2d 35, 39 (1986); Koshian v. Kirchner, 139 A.D.2d 942 (4th Dept 1988). Therefore, "acts evincing an intention to abandon must be unequivocal." Gerbig v. Zumpano, 7 N.Y.2d 327, 331 (1960). "Nonuse of the easement alone is insufficient to constitute abandonment." Bd. of Managers of 190 Meserole Ave. Condominium v. Bd. of Managers of 188 Meserole Ave. Condominium, 191 A.D.3d 629, 631 (2d Dept 2021) (finding triable issue of fact on easement abandonment question). On the other hand, and when "use contemplated in the dedication becomes impossible," that may qualify. Porter v. Intl. Bridge Co., 200 NY 234, 235 (1910). See also Crouch v. State, 218 AD 356, 362 (4th Dept 1926).
Petitioners cite Whole Foods Project documents noting the Town's abandonment of the original Auburn Trail location. The Developers now have the same for the parking lot areas, but that was the same as before as to the Mario's section. The easements stay on the record, but the actual level of use may be very different - albeit not totally ended. The By-Pass may not salvage this. See e.g. Vickta Realty Corp. v. Purley Properties, Inc., 35 Misc.2d 459, 460 (NY Co Sup Ct 1962) (demolition of old route and the construction of a new route "evidenced an unequivocal intention to abandon the original right of way"), aff'd, 19 A.D.2d 697 (1st Dept 1963). In fact, it may be an illegal gift. See Grand Realty Co., 125 A.D.2d at 640. In total, it is not yet concrete if these matters rise to the high "clear and convincing" abandonment level.
In all, the permissive referendum claim has to also await trial. See e.g. Wihstutz v. Town of Babylon, 220 N.Y.S.2d 849, 851-852 (Suffolk Co Sup Ct 1960) (facts as to whether a claim existed for waste or injury to public property precluded summary judgment).
Easement Scope
To avoid the above problems, Respondents revive the easement gap defense noting a title search shows no easement at the key Whole Foods loading dock area.
Brighton Grassroots, LLC reinstated the public trust and permissive referendum claims, and the Developers' title search reflecting an easement gap was part of this appellate review, so Petitioners contend that if the Appellate Division found that lone item compelling it would have affirmed instead.
Petitioners refute this position given various recorded and/or public instruments, and further invoke some equitable principles and prescriptive rights to bar the Developers' easement denial.
This Courts finds issues of fact needing exploration at trial.
Easement Existence
Beginning with the foundational issue of the easement's existence, that legal analysis must start with the Statute of Frauds ("SOF") which provides that:
1. An estate or interest in real property... or any trust or power, over or concerning real property, or in any manner relating thereto, cannot be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the person creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing.
General Obligations Law ("GOL") § 5-703 (1) (emphasis added). See also Rupert v. Rupert, 245 A.D.2d 1139, 1141 (4th Dept 1997).
The "statutorily required writing need not be contained in one single document, but rather may be furnished by 'piecing together other, related writings.'" William J. Jenack Estate Appraisers and Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470, 477 (2013) (citing Henry L. Fox Co., Inc. v. William Kaufman Org., Ltd., 74 N.Y.2d 136, 140 (1989)). See also Crabtree v. Elizabeth Arden Sales Corp., 305 NY 48, 55 (1953) ("permitting the signed and unsigned writings to be read together"); James V. Aquavella, M.D., P.C. v. Viola, 79 A.D.3d 1590, 1593 (4th Dept 2010), aff'd, 17 N.Y.3d 741 (2011).
The Real Property Law also comes into play regarding express easements:
Every instrument creating, transferring, assigning or surrendering an estate or interest in real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law.RPL § 240 (3). See also Franklin Park Plaza, LLC v. V & J Nat. Enterprises, LLC, 57 A.D.3d 1450, 1451 (4th Dept 2008) ("[t]he [easement] writing must establish unequivocally the grantor's intent to give for all time... a use of the servient estate to the dominant estate").
The "intent" to which Section 240 (3) "refers is the objective intent of the parties as manifested by the language of the deed; unless the deed is ambiguous, evidence of unexpressed, subjective intentions of the parties is irrelevant." Mau v. Schusler, 124 A.D.3d 1292, 1294-1295 (4th Dept 2015) (citing Margetin v. Jewett, 78 A.D.3d 1486, 1488 (4th Dept 2010) (when a deed has a definite and precise meaning, "it is not permissible to go elsewhere in search of conjecture in order to restrict or extend the meaning")).
"The imperfect deed might be disregarded, but not the equities behind it." Loughran v. Orange and Rockland Util. Inc., 209 A.D.2d 917, 918 (3d Dept 1994). Moreover, "[w]hether that easement is enforceable against defendants, however, depends on whether they had actual or constructive notice of the easement either by virtue of the recording statutes or because of the visible and obvious nature of the easement." Clements v. Schultz, 200 A.D.2d 11, 14 (4th Dept 1994) (emphasis added).
Respondents are correct that a title search shows no easement behind Whole Food; however, this alone is not fatal as other means may suffice. Again, resort needs to be made back to 1990's RG & E subdivision process. That process was clear that Mario Daniele could secure RG & E's land only upon conferring an easement to the Town. In this vein, the 1997 Access Easement Agreement - which Mario Daniele signed and which was recorded - has exhibits referencing an easement directly to the Town. RG & E denies this as its grant was limited to just the landowners for only access, not to the Town for park uses - especially when it is not even a signatory. See Matter of Estate of Thomson v. Wade, 69 N.Y.2d 570, 573-574 (1987) (a so-called "stranger to the deed," does not create a valid interest in favor of a third party); Matter of Bauer v. County of Tompkins, 57 A.D.3d 1151, 1152 (3d Dept 2008). There is ambiguity surrounding this transaction, and associated documents given the multiple references of easements flowing to the Town, so this must be tested at trial. Cf. Spirt v. Spirt, 209 A.D.2d 688 (2d Dept 1994) (memorandum without language such as "transfer, sell, release, grant, assign or convey" could not grant any interest in land) [Index #: E2018000937 - Docket # 1001, p. 13]. This Court declines to adopt the Town's suggestion to "jettison" the multiple "scrivener's errors" in naming the Town in the 1997 Agreement exhibits. Rather, this opens the door to extrinsic proof at trial.
In fact, and as Petitioners highlight, later documents support that the public easement existed, including the other owners' deeds and conveyances, and more importantly, the Developers' own Project filings, as well as those of the Town. See e.g. Am. Linen Supply Co., Inc. v. Penn Yan Mar. Mfg. Corp., 172 A.D.2d 1007 (4th Dept 1991) (signed and unsigned writings, when read together, provided all essential terms as required by the SOF). See also Huggins v. Castle Estates, Inc., 36 N.Y.2d 427, 431 (1975); Fischer, 137 A.D.2d at 487 (subdivision map reference may qualify as a grant). Cf. H.S. Farrell, Inc. v. Formica Const. Co., Inc., 41 A.D.3d 652, 654 (2d Dept 2007) (subdivision map - alone - was insufficient to show easement creator's intent) [Index #: E2018000937 - Docket # 1001, p. 14]. The present cases have more proof than that in H.S. Farrell, Inc., so this material difference renders it irrelevant. Additionally, the Developers knew of the public use of the Auburn Trail to perhaps trigger enforceable notice against them through that other, non-recording method.
Even without these records, there are other legal rules at play to be clarified at trial.
Alternative Easement Enforcement Grounds
In the alternative, Petitioners call upon various legal ideals to block the Developers' easement denial.
Respondents object to Petitioners' attempt to add "new" easement claims to the case beyond the pleadings, and also raise a lack of standing defense.
To begin, and contrary to the Respondents' position that Petitioners cannot raise "new" legal theories about the Auburn Trail easement, Petitioners are not handcuffed from pursuing any applicable alternative theories as Mario Daniele's misdeeds were not discovered until post-commencement; thus, the alternative contentions could not have possibly have been pleaded in the original Petitions/Complaints. As confirmed at oral argument, even the Town was not previously aware that Mario Daniele's conveyance was missing, but it tosses aside this glaring problem. It was Mario Daniele [and by virtue his companies], not Petitioners, who did the misleading [ Cf. Index #: E2018000937 - Docket # 101, p. 1]. This is not the "tossing spaghetti" situation the Town describes it to be, but Petitioners' adjustment to a moving target. Cf. Tamoutselis v. Tamoutselis, 67 Misc.3d 1206 (A) (Monroe Co Sup Ct 2020) (allegations by the petitioner "don't stick") [Index #: E2018000937 - Docket # 1001, p. 1]. There is no real surprise prejudicing Respondents as the easement gap issues were raised in earlier motions, and Petitioners countered with the 1997 Access Easement Agreement, so they were on notice of a shifting analysis. Accordingly, Petitioners are permitted to address this belatedly revealed scenario, especially because the Town is not doing so for its constituents.
In reply, Petitioners ask for a broad reading of their pleadings to have their claim of a full easement encompass any potential ways to create the same. Pleadings are to be liberally construed. See CPLR 3026; Leon v. Martinez, 84 N.Y.2d 83, 87 (1994); 190 Murray St. Assoc., LLC. v. City of Rochester, 19 A.D.3d 1116 (4th Dept 2005). BGR asks for leave to amend their pleadings to conform to the proof per CPLR 3025 (c).
Petitioners are not able to secure summary judgment on these alternative easement grounds. See Macina v. Macina, 60 N.Y.2d 691, 693 (1983) (trial court could not grant relief on a theory never raised in the pleadings); Diamond Roofing Co., Inc. v. PCL Props., 153 A.D.3d 1577, 1579 (4th Dept 2017) (same). But see Boyle v. Marsh & McLennan Companies, Inc., 50 A.D.3d 1587, 1588 (4th Dept 2008) (summary judgment may be awarded on an unpleaded claim if the proof supports it and the opposing party was not misled). Nevertheless, serious questions of fact remain defeating Respondents' motions.
1. Unclean hands.
Petitioners' first equitable principle is unclean hands which is invoked to block summary judgment relief to the Developers.
The "doctrine of unclean hands may bar recovery where a party seeking such recovery 'is guilty of immoral, unconscionable conduct.'" Gilpin v. Oswego Builders, Inc., 87 A.D.3d 1396, 1399 (4th Dept 2011) (emphasis added). See also Matter of In re Town Bd. of Town of Brighton ex rel. Town of Brighton v. W. Brighton Fire Dept., Inc., 126 A.D.3d 1433, 1436 (4th Dept 2015). As explained more fully, "misconduct which will bar equitable relief need not be sufficient to constitute the basis of a legal action; any willful conduct 'which would be condemned and pronounced wrongful by honest and fair-minded men, will be sufficient to make the hands of the applicant unclean'... as long as the conduct pertains to the matter in litigation." Pecorella v. Greater Buffalo Press, Inc., 107 A.D.2d 1064, 1065 (4th Dept 1985) (emphasis added).
Although seemingly on point at first blush, this Court ultimately does not think that unclean hands applies because the Developers are not seeking equitable relief against Petitioners. Yes, they are seeking affirmative summary judgment relief, but this is not based in equity on any affirmative claim they are prosecuting. Despite this, the Developers' predecessor's conduct is relevant in different ways.
2. Estoppel.
Second, and to further combat the Developers' pivot, Petitioners ask the Court to apply some estoppel rules - some of which may be applied, but not until trial. See e.g. Bond v. Turner, 78 A.D.3d 1490, 1491-1492 (4th Dept 2010) (the defendants were estopped from denying easement rights because they purchased their property with constructive, if not actual, notice that it was burdened with a public easement).
A. Equitable estoppel.
One form of estoppel is equitable estoppel. See Nassau Trust Co. v. Montrose Concrete Products Corp., 56 N.Y.2d 175 (1982); Marshall v. Pittsford Cent. Sch. Dist., 100 A.D.3d 1498, 1499 (4th Dept 2012), lv denied, 20 N.Y.3d 859 (2013). "An easement by estoppel may arise when, among other things, a party reasonably relies upon a servient landowner's representation that an easement exists." Sardino v. Scholet Family Tr., 192 A.D.3d 1433, 1434 (3d Dept 2021). See also Mattes v. Frankel, 157 NY 603, 608 (1899) (ruling that a party was estopped from denying a right of way); Riehlman v. Field, 81 AD 526, 528 (4th Dept 1903). "The doctrine of equitable estoppel must be applied with great caution, however, when dealing with realty." Bergner v. Kick, 85 A.D.2d 911, 912 (4th Dept 1981), aff'd, 56 N.Y.2d 795 (1982). Estoppel can function to block a parkland dedication denial. See Cook, 61 NY at 453; Nichols Copper Co. v. Connolly, 208 AD 667, 676 (2d Dept 1924), aff'd, 240 NY 596 (1925). Estoppel is" ordinarily a question of fact for trial." Powers v. Canandaigua Med. Group, P.C., 189 A.D.3d 2138, 2139 (4th Dept 2020) (triable issue of fact existed on estoppel issue) (emphasis added). See also Putter v. N. Shore Univ. Hosp., 7 N.Y.3d 548, 553 (2006); Cawley v. Weiner, 236 NY 357, 362 (1923); Syracuse Orthopedic Specialists, P.C. v. Hootnick, 42 A.D.3d 890, 893 (4th Dept 2007).
This Court wholeheartedly agrees with Petitioners that the Developers' predecessor - Mario Daniele - may be guilty of misdeeds for which he, or his companies, should likely not be rewarded. Mario Daniele was advised by the Town that his RG & E subdivision request was expressly conditioned on the granting of a public easement to the Town. Mario Daniele's neighboring land owners all complied, but not him. The 1997 Access Easement Agreement echoed this easement condition, as did his deed. Any attempt to downplay the 1997 Agreement due to Mario Daniele's alleged failure to read the same is erroneous. See Angerosa v. White Co., 248 AD 425, 429 (4th Dept 1936) ("[b]efore a person signs an instrument, he is charged with the duty of reading it, and, if he fails so to do, he is guilty of gross negligence"), aff'd, 275 NY 524 (1937). Mario Daniele secured the extra RG & E land in order to expand his parcel. 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. The Town glosses over this issue in its papers [Index # E2018000937 - Docket # 838, p. 18 / Docket # 1001, p. 17 / Docket # 1063, p. 17], and did not provide a satisfactory answer at oral argument to the Court's inquiry about the same. Despite this, and because estoppel is a fact question, and Mario Daniele's credibility will be a key factor thereof, this compelling issue must be reserved for trial.
In its response, the Town adds that the 1996 subdivision process expired by operation of law and is moot [Index # E2018000937 - Docket # 1001, p. 17]. This expiration stance is based upon Mario Daniele's failure to timely file his subdivision map. Again, this Court is perplexed at how the Town is turning a blind eye to these multiple failures, and instead applying them against Petitioners.
B. Judicial estoppel.
Another rule that CAC/SMA briefly cite is judicial estoppel, which precludes a party from "'inequitably adopting a position directly contrary to or inconsistent with an earlier assumed position in the same proceeding or in a prior proceeding.'" Clifton Country Rd. Assoc. v. Vinciguerra, 252 A.D.2d 792, 793 (3d Dept 1998) (emphasis added). See also In re New York State Urban Dev. Corp., 63 A.D.3d 1719, 1721 (4th Dept 2009). The judicial estoppel "doctrine applies only where the party secured a judgment in his or her favor in the prior proceeding." Borrelli v. Thomas, 195 A.D.3d 1491, 1494-1495 (4th Dept 2021) (emphasis added). Despite giving the law behind judicial estoppel, CAC/SMA do not give the precise factual predicate. This Court refuses to adopt and apply the same on such an incomplete contention.
3. Prescriptive easement.
Third, and finally, there is reference to an easement by prescription.
As the Court of Appeals decreed long ago:
To establish an easement in the land of another by prescription or adverse use, it is essential that the use and claim of right be actually known by the person against whom the adverse user is claimed, or it must be so visible, open, or notorious as that knowledge of such use or claim will be presumed.Tredwell v. Inslee, 120 NY 458, 465 (1890) (emphasis added). See also Panzica v. Galasso, 285 AD 859, 860 (4th Dept 1955), aff'd, 309 NY 978 (1956).
A party claiming an easement by prescription must establish it by clear and convincing evidence for the ten year prescriptive period. See Town of Irondequoit v. Fischer, 267 A.D.2d 1016 (4th Dept 1999). Where use of the subject property was in common with the general public, such parties must show "'some distinctive and decisive act on [their] or [their] predecessors' part indicating an exercise of exclusive right sufficient to notify the owner of the user and of the claim of right.'" Tulley v. Bayfront N., Ltd., 286 A.D.2d 873 (4th Dept 2001).
Mario Daniele - and other family members [and by virtue their companies] - knew that the public tread over the Old Mario's parcel. To counter this, Respondents assail Petitioners' standing to assert a real property based issue.
Standing must be raised as an affirmative defense or it is waived. See Matter of Prudco Realty Corp. v. Palermo, 60 N.Y.2d 656, 657 (1983); Santoro v. Schreiber, 263 A.D.2d 953 (4th Dept 1999). Respondents asserted standing defenses, but more as to Petitioners' rights in relation to the Project, not as to real property issues. Interpreting the answers liberally, the standing defense covers the easement issue, but it ultimately falters. Standing requires a litigant to have "something truly at stake in a genuine controversy." Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 N.Y.2d 801, 812 (2003). See also Dairylea Coop., Inc. v. Walkley, 38 N.Y.2d 6, 9 (1975). The "burden of establishing standing to raise that claim is on the party seeking review." Socy. of Plastics Indus., Inc. v. County of Suffolk, 77 N.Y.2d 761, 769 (1991). See also Cobbs Hill Vil. Tenants' Assn. by Sengbusch v. City of Rochester, 194 A.D.3d 1437 (4th Dept 2021).
If Petitioners were not fully aware of the precise facts of the easement claim to plead alternative equitable theories, then it only makes sense that Respondents could not have made corresponding standing defenses.
Respondents insist that, for real property purposes:
1. Where a person claims an estate or interest in real property.. such person or municipal corporation, as the case may be, may maintain an action against any other person,... to compel the determination of any claim adverse to that of the plaintiff which the defendant makes...
Real Property Actions and Proceedings Law ("RPAPL") § 1501 (1). See also RPAPL §§ 240 (4) & 1515 (1) (a); Wellington v. Fin. Freedom Acquisition LLC ex rel. Structured Asset Sec. Corp. Reverse Mortg. Loan Tr. 1999-RMI, 132 A.D.3d 506 (1st Dept 2015) (court erred in finding that the plaintiffs lacked standing) [Index #: E2018000937 - Docket # 1001, p. 3]; Brothers v. Wall, 84 A.D.2d 923, 925 (4th Dept 1981).
These cases before the Court are no longer to determine who owns the easement (cf. ABN AMRO Mortg. Group, Inc. v. Stephens, 91 A.D.3d 801, 803 (2d Dept 2012) (lawsuit to determine claims to real property); Matter of LaBarbera v. Town of Woodstock, 29 A.D.3d 1054, 1055 (3d Dept 2006) (proceeding to determine title) [Index #: E2018000937 - Docket # 1001, pp. 3-4), but rather to determine if a full easement even exists on which to base the public trust claim - for which Petitioners have standing. See e.g. Dental Soc. of State v. Carey, 61 N.Y.2d 330, 333 (1984) (party had standing). Thus, Respondents' reliance on Justice Daniel J. Doyle dismissal of CAC's RPAPL Article 15 claim is misplaced [Index #: E2018000937 - Docket # 790]. This Court hesitates to hamstring CAC from combating the easement wrongs when the Town is refusing to do so. Once more, this Court is troubled by the Town's failure to protect the public easements by not holding Mario Daniele to his promise. The easements were for the public's use, so this Court finds it hard that Petitioners - who represent nearby neighbors - are not somehow third-party beneficiaries of the same. See Coalition for Cobbs Hill by Pastecki v. City of Rochester, 194 A.D.3d 1428, 1436 (4th Dept 2021) (acknowledging the third-party beneficiary rule may apply to property rights like restrictive covenants that were intended to benefit "surrounding neighbors"), lv denied, 198 A.D.3d 1338 [Index #: E2018000937 - Docket # 1991, p. 4].
In conclusion of the Auburn Trail issues, too many fact debates exist to dispose of any part of the same on a summary judgment posture.
Town Board Claims
Petitioners assail the Town Board's IZA based upon: the Brighton Town Code and the Town Law, it lacking true amenities; being inconsistent with the Town's Comprehensive Plan; and, violating SEQRA in a variety of ways.
Respondents protest that the Town Board complied with SEQRA, the Town Law, and the Town Code by considering negative impacts and mitigation measures without segmentation. Furthermore, amenities were sufficient to support the conferred zoning benefits. Respondents have the better assertions.
Brighton Town Code Procedure
Petitioners fault the Town Board on procedural grounds for not referring all of the Developers' IZA proposals - a total of four - to the Planning Board for its independent review of each.
Respondents respond that the original IZA proposal was referred, and that the supplemental versions were not legally mandated to also be referred. Respondents' legal interpretation is correct.
To support their contention, Petitioners cite to the Brighton Town Code's IZA review provisions which provides in relevant part that:
C. The Planning Board will review the proposal and report to the Town Board with its evaluation of the adequacy with which the amenity(s)/incentive(s) fits the site and how it relates to adjacent uses and structures The Planning Board's review shall be limited to the planning design and layout considerations involved with project review or such other issues as may be specifically referred by the Town Board. The Planning Board's report shall be submitted to the Town Board within 70 days from the date of the Planning Board meeting at which the proposal is first placed on the agenda...
D. The Town Board will review the Planning Board's report. The Town Board will notify the applicant as to whether it is willing to further consider the proposal and hold a public hearing thereon...Town Code § 209-5 (C) & (D). See also Town Code § 201-4 (E) ("The word 'shall' is always mandatory").
There is no dispute that the original IZA proposal went to the Planning Board on February of 2015, and that the Planning Board sent back a lengthy report in May which the Town Board considered and held hearings about. Section 209-5 (C) has no mechanism to refer supplemental/amendment applications; therefore, there is no facial Town Code error. Although it could be argued that it would have been prudent to make supplemental referrals, the Code simply does not account for that eventuality. The Court will not impose an extra Town Code condition that does not exist. See generally Bright Homes, Inc. v. Wright, 8 N.Y.2d 157, 162 (1960) ("Courts are not supposed to legislate under the guise of interpretation"); Duncan v. Perales, 135 A.D.2d 1127 (4th Dept 1987). Without different Code language covering amendments, the case of Matter of Cynwyd Investments, Inc. v. Town of N. Hempstead, 215 A.D.2d 755 (2d Dept 1995) is inapposite [Index #: E201800937 - Docket # 673, p. 94], as is Schulz v. Town of Hopewell Zoning Bd. of Appeals, 163 A.D.3d 1477, 1479 (4th Dept 2018) (variances grant was "made in violation of lawful procedure") [Index #: E201800937 - Docket # 673, p. 91].
Amenities Review
Petitioners invoke the Town Law, and different Brighton Town Code sections, to challenge the type and sufficiency of the Town Board's evaluation of the IZA amenities - which they say are illegally duplicative of SEQRA mitigation measures. BGR supplements this by indicating that an IZA in a residential district [in which part of the Project falls] must preserve housing stock - proof of which here is missing.
Respondents assert that the amenities were ample consideration for the IZA, and the residential IZA conditions did not apply. This Court agrees with Respondents.
To give a framework for IZA's - as juxtaposed from traditional restrictive zoning - the Court of Appeals has ruled that:
[incentive zoning provides] a valuable and flexible tool whereby cities may obtain amenities which they may not otherwise demand of private owners and, at the same time, owners may obtain highly desirable economic advantages... we should be very careful not to nullify the usefulness of incentive zoning... by undercutting... the bargain...Trinity Place Co. v. Fin. Adm'r of City of New York, 38 N.Y.2d 144, 150 (1975) (emphasis added).
The Court of Appeals later added that:
... zoning can be used as an incentive to further growth and development of the community rather than as a restraint... Incentive zoning is based on the premise that certain uneconomic uses and amenities will not be provided by private development without economic incentive... The bonus awarded for each amenity must be carefully structured, however, to make the cost-benefit equation favorable enough to induce the developer to provide the desired uneconomic benefit to the city but sufficiently limited to avoid a windfall to it.
Asian Americans for Equality v. Koch, 72 N.Y.2d 121, 129 (1988) (emphasis added). See also Save Monroe Ave., Inc., 179 A.D.3d at 1497; 19 No. 4 New York Zoning Law and Practice Report NL 1 ("Incentive zoning is a system by which municipalities can allow deviations from the use and bulk requirements of the zoning code... in return for the developer providing amenities that the municipality could otherwise not require." {emphasis added}).
Asian Americans for Equality was decided before the relevant Town Law provision was enacted in 1991, so Respondents assign little weight to it. Petitioners properly counter that Section 261-b simply codified pre-existing incentive zoning policy. Asian Americans for Equality has been cited 75 times after 1991, so its pronouncements will not be disregarded.
In line with the above cases, the Court of Appeals acknowledged that municipalities have broad powers to encourage land uses through devices such as incentive zoning. See Kamhi v. Town of Yorktown, 74 N.Y.2d 423, 439 (1989). See also W. New York Dist., Inc. of Wesleyan Church v. Vil. of Lancaster, 17 Misc.3d 798, 817 (Erie Co Sup Ct 2007) [Index #: E201800937 - Docket # 673, p. 104].
The IZA guidelines are codified in a few places. First:
(b) "Community benefits or amenities" shall mean open space, housing for persons of low or moderate income, parks, elder care, day care or other specific physical, social or cultural amenities, or cash in lieu thereof, of benefit to the residents of the community authorized by the town board...
2. Authority and purposes. In addition to existing powers and authorities to regulate by planning or zoning, including authorization to provide for the granting of incentives, or bonuses pursuant to other enabling law, a town board is hereby empowered... to provide for a system of zoning incentives, or bonuses, as the town board deems necessary and appropriate consistent with the purposes and conditions set forth in this section. The purpose of the system of incentive, or bonus, zoning shall be to advance the town's specific physical, cultural and social policies in accordance with the town's comprehensive plan and in coordination with other community planning mechanisms or land use techniques. The system of zoning incentives or bonuses shall be in accordance with a comprehensive plan within the meaning of section two hundred sixty-three of this article.
(e) The town board shall set forth the procedure by which incentives may be provided to specific lands. Such procedure shall describe...
(iii) criteria for approval, including methods required for determining the adequacy of community amenities to be accepted from the applicant in exchange for the particular bonus or incentive to be granted to the applicant by the town...Town Law § 261-b (1) (b), (2) & (3) (e) (iii) (emphasis added). See also Brighton Grassroots, LLC, 179 A.D.3d at 1501 (Section "261-b does not require an [IZA] law to specifically adopt a prospective formula for weighing the costs and benefits of awarding any particular incentive under the law" {emphasis added}).
Second, the Brighton Town Code sets forth that:
Purpose and intent.
The purpose and intent of this article is to offer incentives to applicants who provide amenities that assist the Town to implement specific physical, cultural and social policies in the Comprehensive Plan...
Districts designated for incentives.
All zoning districts are designated as eligible for zoning incentives under this article.
Amenities for which incentives may be offered under this article.
A. The following amenities may be either on or off the site of the subject application:
(1) Affordable housing.
(2) Passive and active open space and related improvements.
(3) Parks.
(4) Child-care or elder-care facilities.
(5) Utilities.
(6) Road improvements.
(7) Health or other human-service facilities.
(8) Cultural or historic facilities.
(9) Other facilities or benefits to the residents of the community.
(10) Any combination of amenities and/or cash in lieu of any amenity(s).
B. These amenities shall be in addition to any mandated requirements pursuant to other provisions of the Comprehensive Development Regulations...
Criteria and procedure for approval...
A. Applications for incentives in exchange for amenities under this article shall be submitted to the Town Board, In order to... preliminarily evaluate the adequacy of amenities to be accepted in exchange for the requested incentive, the following information shall be given by the applicant:
(1) The proposed amenity.
(2) The cash value of the proposed amenity.
(3) A narrative which:
(a) Describes the benefits to be provided to the community by the proposed amenity.
(b) Gives preliminary indication that there is adequate sewer, water, transportation, waste disposal and fire protection facilities in the zoning district in which the proposal is located to handle the additional demands the incentive and amenity, if it is an on-site amenity, may place on these facilities beyond the demand that would be placed on them as if the district were developed to its fullest potential.
(c) Explains how the amenity helps implement the physical, social or cultural policies of the Comprehensive Plan as supplemented by the local laws and ordinances adopted by the Town Board.
(4) The requested incentive...
E. All applicable requirements of the State Environmental Quality Review (SEQR) Act shall be complied with as part of the review and hearing process.
F. In order to approve an amenity/incentive proposal, the Town Board shall determine that the proposed amenity provides sufficient public benefit to provide the requested incentive.
Town Code §§ 209-1; 209-2; 209-3, and 209-5 (A) & (E)-(F) (some emphasis added).
On a related zoning note, the interpretation by a zoning board of its governing code is generally entitled to great deference by the courts "so long as the interpretation "is neither 'irrational, unreasonable nor inconsistent with the governing [code],' it will be upheld." Emmerling v. Town of Richmond Zoning Bd. Of Appeals, 67 A.D.3d 1467 (4th Dept 2009). See also Retail Prop. Trust v. Bd. of Zoning Appeals of Town of Hempstead, 98 N.Y.2d 190, 196 (2002). As the Court of Appeals has cautioned:
... the responsibility for making zoning decisions has been committed primarily to quasi-legislative, quasi- administrative boards composed of representatives from the local community. Local officials, generally, possess the familiarity with local conditions necessary to make the often sensitive planning decisions which affect the development of their community. Absent arbitrariness, it is for locally selected and locally responsible officials to determine where the public interest in zoning lies.Cowan v. Kern, 41 N.Y.2d 591, 599 (1977). See also McGowan v. Cohalan, 41 N.Y.2d 434, 438 (1977).
With the immediately above principle in mind, this Court will not disturb the IZA. See e.g. Matter of Pecoraro v. Board of Appeals of the Town of Hempstead, 2 N.Y.3d 608, 613 (2004) (courts "improperly supplanted the reasoned decision of the Board in favor of their own judgments.").
There is credence to Petitioners' policy argument against "double duty" as the Court of Appeals has repeatedly emphasized that the amenities need to be otherwise unobtainable. See Asian Americans for Equality, 72 N.Y.2d at 129; Trinity Place Co., 38 N.Y.2d at 150. This comports with Petitioners' insistence that the amenities cannot also be SEQRA mitigation measures as the municipality has another way to obtain the same. The Town Law and the Town Code do not have such a prohibition. There is no case-law addressing this exact scenario; thus, Petitioners label this an issue of first impression.
Even if amenities cannot serve dual purposes, the IZA still does not fail. The IZA required the full Auburn Trail Brighton Section - all the way from the City of Rochester to Pittsford - to be improved. This extends well beyond the Project site, so it exceeds the SEQRA mitigation zone. This is a proper amenity, which the Court will not disregard because other items in the "bucket" may falter. This Court will give the Town Board deference and not second guess its approval of the same, which may have intrinsic value not capable of monetary calculations. See generally W. 58th St. Coalition, Inc. v. City of New York, 37 N.Y.3d 949, 952 (2021). The no property tax break promise is added consideration.
As confirmed at oral argument, the AMP benefitted the Developers' parcels on the south side of Monroe Avenue. This dilutes, but does not erase, any value to be afforded the traffic amenity.
As to the value issue Petitioners raise against the amenities, their own forensic analysis is not dispositive. It was within the Town Board's power to assign other monetary values, some as offered by the Developers, and also consider intangible aspects. The record is not bereft of any value analysis. As the Fourth Department already passed on, Town Law § 261-b does not mandate a specific mathematic formula for weighing amenities. See Brighton Grassroots, LLC, 179 A.D.3d at 1501. With this permitted flexibility, the Town Board's assessment tipping in favor of the IZA was not infirm.
BGR's extra attack on the IZA per the residential code provision is unavailing. BGR cites Town Code § 209-7 which allows incentives in exchange for "preservation of the existing housing stock." See also Town Code §§ 209-1 (A), 209-10 & 209-11 (A). BGR is right that a small part of the Project encroached upon the residentially zoned district, but the Project by no means could be construed to be primarily residential in nature. As a result, the IZA did not need to be premised upon proof of preserved housing stock, increased floor space, or more affordable housing. Those were not the Project's goals, so those factors are inapplicable. Following BGR's reasoning would be absurd. The converse is also true, namely the commercial district amenities are not infirm as a small part of the Project is residential.
Comprehensive Plan
Petitioners protest that the IZA did not adhere to the Town's 2000 Comprehensive Plan ("CP").
Respondents counter that IZA amenities need not conform to all of the 2000 CP. Respondents have the accurate position. See e.g. Edwards v. Zoning Bd. of Appeals of Town of Amherst, 163 A.D.3d 1511 (4th Dept 2018) (approval was not inconsistent with town's comprehensive plan).
As the Court of Appeals has explained:
A "comprehensive plan" may be discerned from an examination of all evidence of the municipality's land use policies... The essential purpose of the requirement that rezoning be in accordance with a comprehensive plan is to guard against ad hoc zoning legislation affecting the land of a few without proper regard to the needs or design of the community as a whole.Matter of Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 N.Y.2d 668, 684-685 (1996) (emphasis added). See also Los-Green, Inc. v. Weber, 156 A.D.2d 994 (4th Dept 1989).
"Zoning regulations shall be made in accordance with a comprehensive plan...." Town Law § 263 (emphasis added). See also Rocky Point Dr.-In, L.P. v. Town of Brookhaven, 21 N.Y.3d 729, 734 n. 1 (2013); Udell v. Haas, 21 N.Y.2d 463, 471 (1968) ("zoning [must] be 'reasonable,' and impartial in treatment..."); Baier v. Town of Ellery, 182 A.D.2d 1083 (4th Dept 1992). "The obligation is [in] support of comprehensive planning, not slavish servitude to any particular comprehensive plan. Indeed sound planning inherently calls for recognition of the dynamics of change." Town of Bedford v. Vil. of Mount Kisco, 33 N.Y.2d 178, 188 (1973) (emphasis added). See also Kravetz v. Plenge, 84 A.D.2d 422, 430 (4th Dept 1982) ("zoning is not static"). When a petitioner fails to establish a clear conflict with the comprehensive plan, the zoning determination must be upheld. See Restuccio v. City of Oswego, 114 A.D.3d 1191, 1192 (4th Dept 2014).
In these cases at hand, this Court finds no actionable conflict with the 2000 CP. The IZA addresses traffic, per the 2011 Monroe Avenue Corridor Community Vision Plan, albeit not to Petitioners' satisfaction. The Auburn Trail is improved via the new By-Pass thereby aiding in recreational aims along Monroe Avenue. Open space is preserved to protect the nearby residential neighborhoods. BGR's critique that the IZA does not increase affordable housing - a 2000 CP goal - is misplaced for this commercial development - as discussed before. Not every single CP goal must be satisfied to allow the Project to stand.
SEQRA
Petitioners further attack the Town Board's IZA for not following SEQRA in numerous ways, such as: failing to mitigate adverse environmental impacts; not following the Final Scoping; not requiring an "as of right" project; the Developers failed to complete the SDEIS; and, improper segmentation.
To the extent these discussions can also apply to the Planning Board, they do.
Respondents refute any of the alleged SEQRA failings as the Town Board properly discharged its various duties as the lead agency, and the extraordinarily large administrative record supports the outcome. Respondents win. See e.g. Matter of Chem. Specialties Mfrs. Ass'n v. Jorling, 85 N.Y.2d 382, 396 (1995) (record contained sufficient evidence to provide a rational basis for SEQRA decision); Gidney v. Zoning Bd. of Appeals of City of Buffalo, 207 A.D.3d 1025 (4th Dept 2022) (unanimously affirming dismissal of Article 78 SEQRA case); Coalition for Cobbs Hill by Pastecki, 194 A.D.3d 1428 (affirming the dismissal of SEQRA claims), lv denied, 198 A.D.3d 1338; Tupper v. City of Syracuse, 93 A.D.3d 1277, 1278 (4th Dept 2012) (the defendants adhered to SEQRA's procedural requirements).
As a SEQRA primer, the Court of Appeals has indicated that:
... the Legislature enacted SEQRA, and by so doing formally recognized that environmental concerns should take their proper place alongside economic interests in the land use decision-making processes of State and local agencies... To insure that this laudable goal would be accomplished, the Legislature created an elaborate procedural framework requiring parties to consider the environmental ramifications of their actions" [a]s early as possible "... and to "the fullest extent possible "...Matter of King v. Saratoga County Bd. of Sup'rs, 89 N.Y.2d 341, 347 (1996) (emphasis added and internal citations omitted). See also In re Vil. of Islandia v. Ball, 2020 NY Slip Op. 33930[U], *22 (Albany Co Sup Ct 2020) (there needs to be more than mere lip service to SEQRA obligations).
The Court of Appeals has further emphasized that:
'SEQRA's fundamental policy is to inject environmental considerations directly into governmental decision making'... This policy is effectuated, in part, through strict compliance with the review procedures outlined in the environmental laws and regulations...Matter of Merson v. McNally, 90 N.Y.2d 742, 750 (1997) (emphasis added and internal citations omitted). See also Environmental Conservation Law ("ECL") § 8-0101; Matter of WEOK Broadcasting Corp. v. Planning Bd. of Town of Lloyd, 79 N.Y.2d 373, 380 (1992); Citizens Against Retail Sprawl ex rel. Ciancio v. Giza, 280 A.D.2d 234, 237 (4th Dept 2001).
SEQRA "represents an attempt to strike a balance between social and economic goals and concerns." Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 414 (1986). This is done via a balancing process. See Town of Henrietta v. Dept. of Envtl. Conservation of New York, 76 A.D.2d 215, 222-223 (4th Dept 1980). "While it is essential that public agencies comply with their duties under SEQRA, some common sense in determining the extent of those duties is essential too." Matter of Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d 297, 308 (2009) ("An agency complying with SEQRA need not investigate every conceivable environmental problem; it may, within reasonable limits, use its discretion in selecting which ones are relevant"). See also Town of Victory by Richardson v. Flacke, 101 A.D.2d 1016 (4th Dept 1984) ("the failure to comply with the literal requirement of the SEQRA regulations does not require a reversal"). If a SEQRA-bound agency fulfilled its obligations, a court's inquiry is at an end. See Matter of Anderson v. Lenz, 27 A.D.3d 942, 943-944 (3d Dept 2006).
Each sub-set SEQRA issue is laid out below. See e.g. Advocates for Prattsburgh, Inc. v. Steuben County Indus. Dev. Agency, 48 A.D.3d 1157, 1160 (4th Dept 2008) (rejecting the contention of faulty SEQRA review).
Mitigation
Petitioners contend that the Town Board did not impose sufficient traffic mitigation measures.
Respondents counter that it took the requisite hard look at traffic impacts and imposed corresponding mitigation measures. This Court agrees with Respondents. See e.g. Matter of Wellsville Citizens ex rel. Responsible Dev., Inc. v. Wal-Mart Stores, Inc., 140 A.D.3d 1767, 1768 (4th Dept 2016) (rejecting claim that the town board failed to take a hard look at traffic) [Index #: E2018002961 - Docket # 546, p. 201, n. 139]; AJC Assoc., L.P. v. Town of Perinton, 4Misc.3d 1009 (A) (Monroe Co Sup Ct 2004) (same).
SEQRA directs that:
1. Agencies shall use all practicable means to realize the policies and goals set forth in this article, and shall act and choose alternatives which, consistent with social, economic and other essential considerations, to the maximum extent practicable, minimize or avoid adverse environmental effects, including effects revealed in the environmental impact statement process.ECL § 8-0109 (emphasis added). See also 6 NYCRR § 617.11 (d) (5); Friends of P.S. 163, Inc. v. Jewish Home Lifecare, 30 N.Y.3d 416, 424-425 (2017); Town of Henrietta, 76 A.D.2d at 223 ("the requirement of environmental consideration 'to the fullest extent possible' sets a high standard which must be enforced by the reviewing courts").
As to mitigation, the Court of Appeals has articulated that:
SEQRA requires an agency "to list ways in which any adverse effects * * * might be minimized"... but it does not require an agency to impose every conceivable mitigation measure, or any particular one. Rather, in accordance with its balancing philosophy, SEQRA requires the imposition of mitigation measures only "to the maximum extent practicable" "consistent with social, economic and other essential considerations"... Just as an agency must take a hard look at alternatives... so, too, must an agency, employing a rule of reason, take a hard look at and consider potential mitigation measures. Here, there is substantial evidence that [it] has done so, and its choices cannot be upset by us.Matter of Jackson, 67 N.Y.2d at 421-422 (emphasis added and internal citations omitted). See also Matter of Eadie v. Town Bd. of Town of N. Greenbush, 7 N.Y.3d 306, 318 (2006); Matter of Laidlaw Energy and Envtl., Inc. v. Town of Ellicottville, 59 A.D.3d 1084, 1085-1086 (4th Dept 2009).
Judicial review of a lead agency's SEQRA determination is limited. See Chinese Staff and Workers Ass'n v. City of New York, 68 N.Y.2d 359, 363 (1986); Pilot Travel Centers, LLC v. Town Bd. of Town of Bath, 163 A.D.3d 1409, 1411-1412 (4th Dept 2018). In assessing an agency's compliance with the substantive mandates of the statute, the courts must "review the record to determine whether the agency identified the relevant areas of environmental concern, took a 'hard look' at them, and made a 'reasoned elaboration' of the basis for its determination." Akpan v. Koch, 75 N.Y.2d 561, 570 (1990) ("An agency's compliance with its substantive SEQRA obligations is governed by a rule of reason", and under that subject decision would not be undone). See also Mobil Oil Corp. v. City of Syracuse Indus. Dev. Agency, 224 A.D.2d 15, 21 (4th Dept 1996); H. O. M. E. S. v. New York State Urban Dev. Corp., 69 A.D.2d 222, 232 (4th Dept 1979). The Court of Appeals has also ruled that:
"Not every conceivable environmental impact, mitigating measure or alternative must be identified and addressed before a FEIS will satisfy the substantive requirements of SEQRA"... The degree of detail with which each factor must be discussed obviously will vary with the circumstances and nature of the proposal.... Second, the Legislature in SEQRA has left the agencies with considerable latitude in evaluating environmental effects and choosing among alternatives... Nothing in the law requires an agency to reach a particular result on any issue, or permits the courts to second-guess the agency's choice...Matter of Jackson, 67 N.Y.2d at 417 (emphasis added and internal citations omitted). See also Frontier Stone, LLC v. Town of Shelby, 174 A.D.3d 1382, 1385 (4th Dept 2019) (noting "discretion" in environmental impacts review).
In sum, "[d]issatisfaction with an agency's proposed mitigation measures is not redressable by the courts so long as those measures have a rational basis in the record." Matter of Jackson, 67 N.Y.2d at 421. See also Friends of P.S. 163, Inc., 30 N.Y.3d at 432-433 ("The fact that petitioners would have preferred different or additional mitigation measures presents a difference of opinion about the best way to address the environmental impacts that the agency, not the courts, must consider and resolve"); Hallenbeck on Behalf of Town of Van Buren v. Onondaga County Resource Recovery Agency, 225 A.D.2d 1036, 1036 (4th Dept 1996).
The Town Board did not run afoul of its lead agency SEQRA obligations. See e.g. Hill v. Planning Bd. of the Town of Amherst, 140 A.D.2d 967, 968 (4th Dept 1988) (the Board took the "hard look" and made the "reasoned elaboration" required in a full SEQRA review). See also Matter of City of Rye v. Korff, 249 A.D.2d 470, 472 (2d Dept 1998) (that further mitigation measures were possible was not a basis for invalidating the SEQRA findings) [Index #: E201800937 - Docket # 885, p. 10].
As this Court is keenly aware, the Project has been the subject of exhaustive analysis over a long period of time - years in fact. The Town Board retained experts to aid in this grueling process, including but not limited to Stantec and the NYSDOT. The Town Board collected public comments, and complied a gargantuan administrative record. The record contains several types of Environmental Impact Statements which the Town Board forced the Developers to submit to satisfy its concerns. This onerous back and forth EIS process highlights the hard look the Town Board afforded the Project and the traffic situation - as reflected in the lengthy March 28, 2018, Findings Statement. Cf. Pyramid Co. of Watertown v. Planning Bd. of Town of Watertown, 24 A.D.3d 1312, 1314 (4th Dept 2005) (conclusory finding that the Project would not affect the wetlands was unsupported by any analysis) [Index #: E2018002961 - Docket # 855, p. 125]. Unlike Pyramid Co. of Watertown case, the Town Board's traffic analysis was not "cursory."
Specifically on traffic, the Developers were compelled to go through seven traffic studies - again emphasizing the Town Board's due diligence. As noted previously, the NYSDOT signed off on the final Project iteration, and that outcome has been sustained by this Court. In addition to the final conditions the NYSDOT imposed, the Town Board further reduced the Project's size. Petitioners' present objection to the elimination of the rear access points is misplaced. It was the nearby neighbors - whom Petitioners represent - who vociferously opposed the side exits, so they cannot claim foul for eliminating those options, especially when the Project was downsized, just not as much as they had hoped. Once the rear access restrictive covenant was devised, the ensuing traffic analysis - five more studies - considered the same. Petitioners' claims to the contrary are simply not sound. As is the attack on the 6,300 size reduction.
The totality of the proof supports the conclusion that a hard look was given to the traffic conditions which were mitigated as much as possible with sufficient explanation.
Final Scope / SDEIS
Petitioners argue that the Developers did not follow the Final Scope by addressing all issues of concern in the DEIS, including rear access issues. On a later, but related, note, Petitioners also claim that the Developers failed to supply an adequate SDEIS in that they did not address all Project deficiencies.
Respondents aver that the Town Board properly found that the Final Scope was followed as traffic alternatives were considered. Respondents further respond that the SDEIS was complete as to the only identified issue, namely traffic, and it amply addressed any public concerns over the same. Respondents are in the right.
A key part of balancing process is the EIS - both the draft, supplemental, and final versions. See ECL § 8-0109 (2); 6 NYCRR § 617.9; Matter of Shawangunk Mtn. Envtl. Ass'n v. Planning Bd. of Town of Gardiner, 157 A.D.2d 273, 275 (3d Dept 1990) ("[t]he heart of SEQRA is the... EIS... process."); Town of Henrietta, 76 A.D.2d at 222-223.
To aid in this process, the lead agency issues a scoping document to "focus the EIS on potentially significant adverse impacts," and also identifying mitigation measures. 6 NYCRR §§ 617.8 (a), (e) (2) & (4) & 617.9 (a) (2). See also Webster Assoc. v. Town of Webster, 59 N.Y.2d 220, 228 (1983) (ommission in EIS was not fatal) [Index #: E2018000937 - Docket # 673, p. 119; Index # / E2018002961, Docket # 546, p. 177, n. 113 & p. 179]. "The degree of detail with which each factor must be discussed [in an EIS] obviously will vary with the circumstances and nature of the proposal." Sun Co., Inc. (R & M) v. City of Syracuse Indus. Dev. Agency, 209 A.D.2d 34, 49 (4th Dept 1995). See also Matter of Jackson, 67 N.Y.2d at 422 (EIS should be "analytical, not encyclopedic"); Tri-County Taxpayers Ass'n, Inc. v. Town Bd. of Town of Queensbury, 55 N.Y.2d 41, 46 (1982). Under the regulations:
(I) The lead agency may require a supplemental EIS, limited to the specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from:
(a) changes proposed for the project;
(b) newly discovered information; or
(c) a change in circumstances related to the project...
(iii) If a supplement is required, it will be subject to the full procedural requirements of subdivision (a) of this section except that scoping is not required.6 NYCRR § 617.9 (a) (7) (I) & (iii).
An agency's determination whether to require a SEIS is discretionary. See Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 N.Y.3d 219, 231 (2007) (additional SEIS was not necessary) [Index #: E2018002961 - Docket # 546,p. 224].
The Developers did not ignore the Final Scoping in its various EIS filings, including the DEIS and SEIS. The Final Scoping focused on traffic measures, as did the responses thereto after several traffic studies. Those responses touched on rear access measures, and varying forms of traffic flow in the form of ten alternatives. Once more, it was neighbors who objected to rear access, so foreclosing that option cannot be retroactively invalidated. In addition, IZA amenities were sufficiently flushed out.
Next, and via an August 24, 2016, resolution, the Town Board directed an SEIS on traffic issues only given a discovered signaling issue. This resolution was narrowly tailored, and did not invite non-traffic submissions. Therefore, Petitioners insistence on other missing information from the SEIS is misplaced. The SEIS amply covered the directed traffic issues to the Town Board's satisfaction. Any other public comments were properly reserved for the FEIS, which was also adequate. See 6 NYCRR § 617.11 (d). See also 6 NYCRR §§ 617.9 (b) (1).
Project Options
Petitioners aver that the Town Board faltered by not considering what could have been built within the zoning laws as a baseline comparison.
Respondents rebut this and profess that the Town Board considered a reasonable range of options - a discretionary act that cannot be second guessed. This is correct. See e.g. Landmark Soc. of W. New York v. Monroe County, 4 A.D.3d 871, 872 (4th Dept 2004) (the respondent considered "a reasonable range of alternatives" before adopting the subject plan).
As part of the SEQRA mitigation analysis, alternatives to the proposed action have to be considered. See ECL § 8-0109 (2) (d) & (4); 6 NYCRR § 617.9 (b) (1) ("all reasonable alternatives"); Webster Assoc., 59 N.Y.2d at 228. An option is "no action." 6 NYCRR § 617.9 (b) (5) (v). An "as of right" project is one that could be constructed under the zoning laws. See Matter of Neville v. Koch, 79 N.Y.2d 416, 422 n. 4 (1992). As to selecting between options to review, the Court of Appeals has concluded that:
To be meaningful, any choice among alternatives must be based on an awareness of all reasonable options, but the degree of detail required in assessing those alternatives will vary with the circumstances and nature of each proposal... A rule of reason applies: the agency must consider a reasonable range of alternatives to the specific project... Where it appears, as here, that there has been such a reasonable consideration of alternatives, the judicial inquiry is at an end.Matter of Town of Dryden v. Tompkins County Bd. of Representatives, 78 N.Y.2d 331, 333-334 (1991) (emphasis added and internal citations omitted).
For the matters at hand, the Town Board considered a panolpy of eleven project alternatives. This Court declines to usurp the same based upon Petitioners' critiques, including one based upon an "as of right" option. Such a proposal was contained as an alternative - Number 6 - as was also a "no action" option. Of the many proposals offered, the Town Board settled on the one that best suited the conditions. Cf. Matter of Brander v. Town of Warren Town Bd., 18 Misc.3d 477 (Onondaga Co Sup Ct 2007) (agency failed to evaluate and analyze sufficient and acceptable alternatives proposed by the DEC) [Index #: E2018002961 - Docket # 855, pp. 125-126]. This Court is unconvinced that this decision needs to be disturbed on a hindsight analysis.
Segmentation
Petitioners insist that the Town Board improperly segmented its environmental review in regard to other nearby projects on the south side of Monroe Avenue, and also failed to consider cumulative impacts, but Respondents deny the same. This Court sees no redressable segmentation. See e.g. Court St. Dev. Project, LLC v. Utica Urban Renewal Agency, 188 A.D.3d 1601, 1603 (4th Dept 2020) (rejecting segmentation contention).
Segmentation means:
the division of the environmental review of an action such that various activities or stages are addressed under this Part as though they were independent, unrelated activities, needing individual determinations of significance.6 NYCRR § 617.2 (ah) (emphasis added). See also Chinese Staff and Workers Ass'n, 68 N.Y.2d at 367-368.
The regulations provide that:
(1) Considering only a part or segment of an action is contrary to the intent of SEQR.6 NYCRR § 617.3 (g) (1) (emphasis added). See also 6 NYCRR §§ 617.7 (c) (2) & 617.9 (b) (5) (iii) (a); Custom Topsoil, Inc. v. City of Buffalo, 12 A.D.3d 1168, 1169 (4th Dept 2004) (the City did not engage in improper segmentation in conducting its environmental review).
As can be seen from the regulatory language, segmentation most commonly refers to dividing out aspects of a single action. The regulations "require that reasonably related long-term, short-term and cumulative effects, including other simultaneous or subsequent actions included in any long range plan that are likely to be undertaken as a result thereof, be considered." Sun Co., Inc. (R & M), 209 A.D.2d at 47 (the decisive factor "is the existence of a 'larger plan' for development"). See also Matter of Long Is. Pine Barrens Soc., Inc. v. Planning Bd. of Town of Brookhaven, 80 N.Y.2d 500, 512 (1992). Thus, "a project developer is not permitted to exclude certain activities from the definition of a project for the purpose of making it appear that adverse environmental impacts have been minimized for the purpose of circumventing the detailed review called for under SEQRA." Forman v. Trustees of State Univ. of New York, 303 A.D.2d 1019, 1020 (4th Dept 2003) (emphasis added). On the other hand:Where, as here, projects are independent of each other and are not part of an integrated or cumulative development plan, and 'their only common element is their general location,' 'the projects may be reviewed separately and are not subject to a claim of improper segmentation,' nor is 'cumulative analysis' of the two projects required Settco, LLC v. New York State Urban Dev. Corp., 305 A.D.2d 1026, 1027 (4th Dept 2003) (emphasis added).
Petitioners latch onto the AMP, which impacted property on the other side of Monroe Avenue, to force other items on that part of the road to be considered cumulative and/or part and parcel of the Whole Foods Project. This is not proper. See e.g. GM Components Holdings, LLC v. Town of Lockport Indus. Dev. Agency, 112 A.D.3d 1351, 1353 (4th Dept 2013) (rejecting segmentation argument). The change of two parcels on the south side - the old Friendly's location which became a City Mattress store and a possible new Mamasan's restaurant - are not part of the Project. See e.g. Dunk v. City of Watertown, 11 A.D.3d 1024, 1026 (4th Dept 2004) (as the projects were planned separately and are independent of each other, there was no segmentation error). Those sites are not owned by the Daniele Family, and they were subject to their own SEQRA review. Geographical proximity alone was insufficient to trigger segmentation concerns. See e.g. Noslen Corp. v. Ontario County Bd. of Supervisors, 295 A.D.2d 924 (4th Dept 2002) (finding no segmentation error for unrelated projects).
Petitioners' cases do not compel an opposite result. For example, in Sun Co., Inc. (R & M), the Fourth Department prohibited separate consideration of smaller part of a larger master plan development on the Onondaga Lake harbor area. Unlike Sun Co., Inc. (R & M), the subject Monroe Avenue corridor is not part of a unified development project. Due to this material factual distinction, Sun Co., Inc. (R & M) is not persuasive authority. The same is also true for Matter of Vil. of Westbury v. Dept. of Transp., 75 N.Y.2d 62, 69 (1989) which reviewed a larger traffic redesign on an integrated construction schedule for two intertwined traffic corridors [Index #: E2018002961 - Docket # 546, p. 206, n. 141], and Matter of Teich v. Buchheit, 221 A.D.2d 452, 454 (2d Dept 1995) where a proposed parking lot was part of an overall plan for hospital expansion, so the Planning Board should have considered it in the context of the larger plan [Index #: E2018000937 - Docket # 920, p. 100]. Lastly, Matter of City of Buffalo v. New York State Dept. of Envtl. Conservation, 184 Misc.2d 243, 255 (Erie Co Sup Ct 2000) is not binding authority [Index #: E2018002961 - Docket # 546, p. 205]. See Williams v. AGK Communications, Inc., 143 Misc.2d 845, 848 (Onondaga Co Sup Ct 1989) ("Courts of coequal authority are not bound to follow one another").
In all, this Court concludes that there was no actionable SEQRA violations by the Town Board. See e.g. Matter of Pittsford Plaza Assoc. v. Spiegel, 66 N.Y.2d 717, 719 (1985) (ruling that there was substantial evidence to support the Town Board's determination) [Index #: E2018002961 - Docket # 546, p. 204, n. 140]; Matter of Town of Marilla v. Travis, 151 A.D.3d 1588, 1591 (4th Dept 2017) (review of the extensive record demonstrates that the DEC complied with SEQRA).
Planning Board Claims
Petitioners object to the Planning Board's handling of the Project's site plans review and SEQRA determination on many grounds as follows: failing to exercise jurisdiction to reduce the Project size; exceeding jurisdiction by addressing the Project based upon a faulty IZA; not issuing written findings; site plans approvals not adhering to the comprehensive plan; commingling its preliminary and final site plan reviews; green-lighting the site plans without state and county approvals; allowing Amazon lockers without mitigation; a plethora of Town Code infractions; and, a number of SEQRA errors. Further, Petitioners pursue OML violations against the Planning Board.
Respondents counter each ground, and assert that: there was no jurisdiction errors; written findings were issued; the site plans approval were properly combined, followed the comprehensive plan, and were properly conditioned on approvals; Amazon lockers were not a part of the Project needing mitigation; and, there were no Town Code infractions or SEQRA deviations. Respondents contentions are valid.
Jurisdiction
Petitioners first argue that the Planning Board failed to exercise its jurisdiction to independently consider, and then reduce, the Project's size and scale. Conversely, Petitioners switch and submit that the Planning Board lacked the jurisdiction to approve the site plans based upon an illegal IZA.
Respondents disclaim any jurisdictional defect as the Planning Board reviewed the Project's scope, and the IZA was not illegal. This Court agrees.
As a foundation, planning boards were created by Town Law § 271 (see also Town Code §§ 217-1 & 217-2), and they have the authority to review site plans. See Town Law § 274-a (2) (a) & (4). See also Town Code §§ 217-2, 217-2 & 217-9 (a). A planning board has broad discretion in deciding applications such as site plan approvals. See E.F.S. Ventures Corp. v. Foster, 71 N.Y.2d 359, 370 (1988); Matter of Kempisty v. Town of Geddes, 93 A.D.3d 1167, 1169 (4th Dept 2012). The purpose of site plan approval is to:
determine compliance with the objectives of this article in zoning districts where inappropriate development may cause a conflict between uses in the same or adjoining zoning district by creating unhealthful and unsafe conditions and thereby adversely affect the public health, safety and general welfare. The purpose of site plan approval is also to protect and preserve trees and shrubs in a manner consistent with Chapter 175 of the Town Code.Town Code § 217-8.
The Town Code also indicates that:
Following the hearing and in addition to compliance with all SEQR requirements, the Town Board shall, before taking action, refer the proposal for review and comment to other governmental agencies as may be required and may refer the proposal to the Planning Board and other Town boards and officials for review and comment. In order to approve an amenity/incentive proposal, the Town Board shall determine that the proposed amenity provides sufficient public benefit to provide the requested incentive. Thereafter, the Planning Board is authorized to act on an application for preliminary approval pursuant to Chapter 217, Article III, § 217-12A, or Chapter 213, § 213-4C, of the Comprehensive Development Regulations.Town Code § 209-5 (F) (emphasis added).
As to preliminary site plans, Chapter 217 directs that the Planning Board shall consider: traffic; open spaces; building size and location; and, protection of adjacent properties - among other things. See Town Code § 217-12 (B) (4) (l) and (C) (1)-(4) & (8).
To help clarify the difference between zoning - such as an IZA - and site plan review, a court explained that:
Zoning and site plan review both regulate land use in a municipality, but are not identical and serve different goals. 'The primary goal of a zoning ordinance must be to provide for the development of a balanced, cohesive community which will make efficient use of the town's available land'... In contrast, site plan review reflects 'public interest in environmental and aesthetic considerations, the need to increase the attractiveness of commercial and industrial areas in order to invite economic investment, and the traditional impulse for controls that might preserve the character and value of neighboring residential areas'... Site plan review furthers those ends by 'permit [ting] municipalities to regulate the development and improvement of individual parcels in a manner not covered under the usual provisions of building and zoning codes which establish specific standards for construction of buildings, provide for specific limitations on use, and fix definite numerical criteria for density, building set backs and frontage and height requirements'Bovee v. Town of Hadley Planning Bd., 160 A.D.3d 1102, 1103-1104 (3d Dept 2018). An involved agency's review can be premised upon the lead agency's record - which was set by the Town Board here. See Troy Sand & Gravel Co., Inc. v. Town of Nassau, 125 A.D.3d 1170, 1173 (3d Dept 2015); Matter of Turkewitz v. Planning Bd. of City of New Rochelle, 24 A.D.3d 790, 791 (2d Dept 2005). New information can also be collected. See Troy Sand & Gravel Co., Inc. v. Fleming, 156 A.D.3d 1295, 1298 (3d Dept 2017).
Petitioners' beginning line of jurisdictional attack - that the Planning Board failed to exercise its own jurisdiction - falters. See e.g. Matter of Inc. Vil. of Poquott v. Cahill, 11 A.D.3d 536, 542 (2d Dept 2004) (claim of failure to conduct an independent SEQRA was properly rejected). The Planning Board coordinated with the Town Board in the EIS process by identifying areas of environmental concern. Additionally, reliance upon the Town Board's findings is not per se improper. See e.g. Matter of E. End Prop. Co. #1, LLC v. Town Bd. of Town of Brookhaven, 56 A.D.3d 773, 777 (2d Dept 2008) (the town board, an involved agency, properly relied upon the FEIS and findings statement prepared by the lead agency); Matter of Vil. of Pelham v. City of Mount Vernon Indus. Dev. Agency, 302 A.D.2d 399, 401 (2d Dept 2003) (the city council properly relied upon the FEIS and Findings Statement prepared by the lead agency). Furthermore, the Planning Board collected more information directly from the Developers, some with the assistance of Stantec, for its own consideration. Just because the Planning Board made no changes after its own investigation, does not mean that it failed to fully consider the Project. See e.g. Campaign for Buffalo History Architecture & Culture, Inc. v. Zoning Bd. of Appeals of City of Buffalo, 174 A.D.3d 1304, 1306 (4th Dept 2019) (planning board's determination to approve the site plan is supported by substantial evidence and has a rational basis).
Next, Petitioners shift their jurisdictional argument and assert that the Planning Board lacked authority as the IZA was wrongly approved. For the reasons set forth above, the IZA does not falter, so in turn neither does the Planning Board's ensuing jurisdiction. Cf. Matter of Bayswater Gracewood, LLC v. Planning Bd. of Inc. Vil. of N. Hills, 19 A.D.3d 411, 412 (2d Dept 2005) (planning board lacked the authority to consider and determine the petitioner's applications without receiving and reviewing the required report from village official) [Index #: E2018000937 - Docket # 673, p. 136]. Differently from Bayswater Gracewood, LLC, the Town Board made the required referral after the IZA and SEQRA adjudications, Petitioners just disagree with the same. This is not a true jurisdictional problem warranting a writ of prohibition.
Written Findings
Petitioners claim that the Planning Board erred in not issuing written findings supporting its site plans determinations.
Respondents cite to the Planning Board's findings statement that augmented its adoption of the Town Board's, which is acceptable. See e.g. Matter of Dietrich v. Planning Bd. of Town of W. Seneca, 118 A.D.3d 1419, 1421 (4th Dept 2014) (planning board adequately set forth specific findings) [Index #: E2018000937 - Docket # 673, pp. 137-138].
Findings of fact which show the actual grounds of a decision are necessary for an intelligent judicial review of an administrative determination. See Matter of S. Blossom Ventures, LLC v. Town of Elma, 46 A.D.3d 1337, 1338 (4th Dept 2007). However, if the record provides the factual basis for the administrative decision, then intelligent judicial review is not foreclosed. See Leibring v. Planning Bd. of Town of Newfane, 144 A.D.2d 903 (4th Dept 1988), amended, 147 A.D.2d 984 (4th Dept 1989). "Where the issue is one of pure legal interpretation of statutory terms... [a court has] the power to conduct an independent review of the applicable law." Matter of Livingston Parkway Ass'n, Inc. v. Town of Amherst Zoning Bd. of Appeals, 114 A.D.3d 1219, 1220 (4th Dept 2014).
The Planning Board's final decision is laid out in a September 19, 2018, approval letter, and also reflected in meeting minutes. See 6 NYCRR § 617.2 (p); Town Code § 205-55 (C). Due to this documentation, this Court does not have to speculate as to the Planning Board's rationale. In addition, the overall record does not provide grounds to vacate the site plan approvals, and rather supports the same. Cf. Matter of In-Towne Shopping Centers, Co. v. Planning Bd. of Town of Brookhaven, 73 A.D.3d 925, 927 (2d Dept 2010) (the record lacked sufficient evidence to support the rationality of its determination) [Index: E2018002961 - Docket # 855, p. 169].
Combined Review
Petitioners cite as error the Planning Board's commingling of its preliminary and final site plan reviews.
Respondents cite the Town Code as authority for such a combination, which is true.
The Town Code provides that:
Site plan review shall follow a two-step approval process: preliminary site plan review and approval and final site plan review and approval. However, at the discretion of the Planning Board Executive Secretary, application for preliminary and final site plan review may be combined.Town Code § 217-10 (emphasis added). See also 2 NY Zoning Law & Prac. § 25:04 (noting single-phase review is possible).
The motion records show that Mr. Ramsey Boehner - the Planning Board's Executive Secretary - authorized such a combined review process. Section 217-10 does not impose any public announcement component. Consequently, this Court declines to upset the discretionary call. That combined review was further ample, and reflects metered consideration of the site plans.
Approvals
Petitioners further assail the site plan approval for having been issued without various state and county approvals.
Respondents propound that this matter is forfeited via a prior case outcome, and also that a conditional approval was allowed.
As a preliminary matter, the approvals issue was raised before the Zoning Board of Appeals, and then also litigated by SMA in Index # E202100033. This Court did not grant any relief on that distinct basis. This operates to bar a fresh round of review under res judicata principles. See e.g. Parker v. Blauvelt Volunteer Fire Co., Inc., 93 N.Y.2d 343, 347 (1999) (a virtually verbatim repetition of prior lost claim precluded second round of litigation); Castiglia v. Colonial Pines, Inc., 187 A.D.2d 994 (4th Dept 1992) (res judicata barred new litigation which asserted the same claims previously resolved in a prior action). See also O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357 (1981) (applying transactional analysis approach to res judicata even if based upon different theories) [Index #: E2018000937 - Docket # 920, p. 91].
To the extent not foreclosed, the approvals issue is not fatal. See e.g. Matter of Basha Kill Area Ass'n v. Planning Bd. of Town of Mamakating, 46 A.D.3d 1309, 1312 (3d Dept 2007) (approval was properly conditioned on other federal and state requirements).
In approving a site plan, a planning board "shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to a proposed site plan." Town Law § 274-a (4). See also Town Law § 274-a (1); Town Code § 217-9 (A). Accordingly, a planning board can impose reasonable conditions on the approval. See Matter of Kempisty, 93 A.D.3d at 1170. See also Florida Historical Socy. v. Zoning Bd. of Appeals of Vil. of Florida, 197 A.D.3d 1313, 1315 (2d Dept 2021); Matter of Castle Properties Co. v. Ackerson, 163 A.D.2d 785, 786 (3d Dept 1990). On conditioned approvals, the Town Code provides that" [a]fter receiving... approval for all necessary permits... from state and county officials, the applicant may prepare the final site plan and apply to the Secretary of the Planning Board..." Town Code § 217-13 (A) (emphasis added). See also Town Code § 217-12 (C) (1).
Respondents adopt the position that Section 217-13 (A) does not apply in a combined review process. This is not implausible. The exact approval timing of this complex project was not faulty.
Amazon Lockers - Outdoor Seating - Pub - SEIS
This Court rejected the Amazon locker issue as a basis to undo the NYSDOT's approval.
Petitioners contest the potential installation of Amazon lockers, outdoor seating, or a pub at the Whole Foods store because the added traffic caused thereby was not considered via a SEIS, so no additional mitigation was mandated.
Respondents first submit that BGR is barred from pursuing this contention, and they also submit that no SEIS was needed as Amazon lockers or a pub were not part of the Project. Respondents are partially correct.
Contrary to the Developers' argument, BGR is not estopped from raising the locker/seating/pub issue. Respondents refer to a 2021 Zoning Board of Appeals decision on the Amazon locker issue - about which BGR did not sue in its Index #: E2021000039 lawsuit - to block BGR from contesting it now. However, that proceeding was about the later Starbucks building permit, not the earlier site plans review, and it came well after other cases interposing the matter. Given the different context and timing, BGR did not unequivocally forfeit this claim.
As to the merits, Petitioners lose.
It is not arbitrary and capricious or a violation of SEQRA to ignore speculative environmental consequences. See e.g. Matter of Indus. Liaison Comm. of Niagara Falls Area Chamber of Commerce v. Williams, 72 N.Y.2d 137, 143 (1988) (ignoring speculative environmental consequences which might arise is not a SEQRA error). The Developers' proposal never included Amazon lockers, so it was not before the Planning Board, and was instead only surmise at that point based upon a national news story. See e.g. Kellner v. City of New York Dept. of Sanitation, 107 A.D.3d 529, 530 (1st Dept 2013) (SEIS was not required for speculative consequences). However, and as shown in discovery, the Whole Foods Lease allows such a locker addition. The Developers were not completely forthright, and this is rather galling. See Matter of E. New York Properties, Inc. v. Cavaliere, 142 A.D.2d 644 (2d Dept 1988) [Index #: E201800937 - Docket # 1038, p. 119]. In Matter of E. New York Properties, Inc., that developer concealed its intention to purchase and assemble two contiguous sites; thus, misrepresenting the facts to the planning board thereby segmenting the application process. Id. at 647. Despite this, the Second Department did "not discern any fraud or misrepresentation of a material fact by the petitioner which would justify" a denial of the application. Id. It admonished the developer that "circumstances of this nature will be carefully scrutinized in order to uncover any deliberate misrepresentation or fraud." As in Matter of E. New York Properties, Inc., the Developers are cautioned to be forthright.
Even if more than conjectural, and as this Court found before, Amazon lockers - if added at a later juncture after further review - are not the same as a distribution center as Petitioners suggest. Thus, yet another SEIS was not mandated (see 6 NYCRR § 617.9 (a) (7) (I); Matter of Doremus v. Town of Oyster Bay, 274 A.D.2d 390, 393-394 (2d Dept 2000)), and the Town Board did not need to get re-involved. See 6 NYCRR § 617.3 (e).
Town Code Infringements
Petitioners provide a laundry list of thirteen supposed code infractions of Town Code §§ 205-17, 217-12, and 217-13. Petitioners' mostly fleeting citation to various code sections is insufficient to upset the site plan approvals. Nevertheless, Respondents explain how each provision was reviewed, or was inapplicable - including the timing of the Building Inspector's certification. Therefore, the Planning Board did not ignore the Town Code.
SEQRA
Petitioners say that the Planning Board did not fulfill its obligation as an involved agency to review all aspects of the Project before a SEQRA decision, and that is also improperly adopted the Town Board's SEQRA outcome. BGR adds a failure to mitigate and segmentation protests.
Respondents contest any SEQRA defects as the Planning Board did not have an expanded role as Petitioners advocate.
As with the Town Board, the Planning Board also did not fail in its SEQRA responsibilities. See e.g. Davis v. Zoning Bd. of Appeals of City of Buffalo, 177 A.D.3d 1331, 1333 (4th Dept 2019) (planning board conducted a lengthy and detailed SEQRA review of the project so its determination must be upheld); Friends of Hammondsport v. Vil. of Hammondsport Planning Bd., 11 A.D.3d 1021, 1022 (4th Dept 2004) (planning board took a "hard look" at the areas of environmental concern and made a "reasoned elaboration of the basis for its determination"). See also Matter of Granger Group v. Town of Taghkanic, 77 A.D.3d 1137, 1142 (3d Dept 2010) (planning board took a "hard look") [Index #: E2018002961 - Docket # 546, p. 193 - Docket # 855, p. 142].
As to involved agencies, the governing regulations dictate that it:
(5) certify that consistent with social, economic and other essential considerations from among the reasonable alternatives available, the action is one that avoids or minimizes adverse environmental impacts to the maximum extent practicable, and that adverse environmental impacts will be avoided or minimized to the maximum extent practicable by incorporating as conditions to the decision those mitigative measures that were identified as practicable.6 NYCRR § 617.11 (d) (5) (emphasis added). See also 6 NYCRR § 617.11 (c); Neeman v. Town of Warwick, 184 A.D.3d 567, 569 (2d Dept 2020); Town of Henrietta, 76 A.D.2d at 223-224.
Petitioners invoke the above provision to call out as invalid the Planning Board's determinations. For many of the reasons laid out in regard to the Town Board, or set forth already above as to the Planning Board, it did not skirt its SEQRA obligations. For example, there was exercised jurisdiction via an independent SEQRA review, and the Amazon lockers is not a disqualifying issue. Any segmentation charge against the Planning Board falters as it did in relation to the Town Board. See e.g. Citizens Against Sprawl-Mart ex rel. Alcuri v. City of Niagara Falls, 35 A.D.3d 1190, 1192 (4th Dept 2006) (city council would have engaged in improper segmentation if it had conducted its own review of the environmental impacts when the lead agency was also doing so).
Also, Petitioners characterize the Planning Board's SEQRA determination as premature when the final site plan came after it. "No agency involved in an action may undertake, fund or approve the action until it has complied with the provisions of SEQR[A]." 6 NYCRR § 617.3 (a). Again, the combined review process was not flawed.
In all, there are no valid SEQRA grounds to upset the Planning Board's determinations. See e.g. Pilot Travel Centers, LLC v. Town Bd. of Town of Bath, 163 A.D.3d 1409, 1412 (4th Dept 2018) (SEQRA decision would not be undone); Ecumenical Task Force of Niagara Frontier, Inc. v. Love Canal Area Revitalization Agency, 179 A.D.2d 261 (4th Dept 1992) (finding that the respondents complied with both the procedural and substantive SEQRA requirements).
Open Meetings Law
Petitioners promote an OML claim regarding private Planning Board "pre-meetings," and also the failure to publicize Mr. Boehner's "comment notes" which they demarcate as resolutions. BGR appends to this contention an objection to: missing "pre-meeting minutes;" a private meeting with the Developers; and, the ejection of one of its members from a hearing.
The Town first denies the same as part of the matter is moot. Moreover, the Town asserts that an OML claim is speculative, any meetings were noticed, and the notes were not qualifying resolutions.
As to the Town's preliminary justiciability objection, a court's jurisdiction "extends only to live controversies," and they are "prohibited from giving advisory opinions or ruling on... moot... questions.'" Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 N.Y.2d 801, 810-811 (2003). See also Sportsmen's Tavern LLC v. New York State Liq. Auth., 195 A.D.3d 1557, 1558 (4th Dept 2021). This Court agrees that the portion of the OML claim seeking nullification of the Planning Board's demolition decisions is moot as that activity is done. See e.g. Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach, 98 N.Y.2d 165, 174 (2002) (dismissing appeal as moot); Sierra Club v. New York State Dept. of Envtl. Conservation, 169 A.D.3d 1485, 1486 (4th Dept 2019) (dismissing appeal as moot given finished construction), rearg denied, 171 A.D.3d 1572.
As another threshold matter, the Town's speculation label is not accurate. The Fourth Department denied other OML claims as such (see Brighton Grassroots, LLC, 179 A.D.3d at 1501), but the present ones proceeded through discovery. Thus, it is not based upon conjecture, but a firm nucleus of facts. Cf. Feinberg-Smith Assoc., Inc. v. Town of Vestal Zoning Bd. of Appeals, 167 A.D.3d 1350, 1353 (3d Dept 2018) (OML claim was speculative); Residents for a More Beautiful Port Washington, Inc. v. Town of N. Hempstead, 153 A.D.2d 727, 729 (2d Dept 1989) (same) [Index #: E20180000937 - Docket # 838, p. 21]. However, those facts fail to justify an OML violation sanction. See e.g. Britt v. Niagara County, 82 A.D.2d 65, 70 (4th Dept 1981) (court acted improvidently by voiding respondents' actions) [Index #: E2018000937 - Docket # 673, p. 166].
"The purpose of the [OML] is to prevent municipal governments from debating and deciding in private what they are required to debate and decide in public." Matter of Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 N.Y.2d 668, 686 (1996). See also Matter of Zehner v. Bd. of Educ. of Jordan-Elbridge Cent. School Dist., 91 A.D.3d 1349, 1350 (4th Dept 2012). The OML "is designed to foster public awareness, not to assure public participation." Britt, 82 A.D.2d at 70 (emphasis added).
The operative statutory provisions for this claim are set forth as follows:
It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy...
Public Officers Law ("POL") § 100 (emphasis added). See also Matter of Perez v. City Univ. of New York, 5 N.Y.3d 522, 528 (2005).
(a) Every meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat...
(e) Agency records available to the public pursuant to article six of this chapter, as well as any proposed resolution... that is scheduled to be the subject of discussion by a public body during an open meeting shall be made available, upon request therefor, to the extent practicable as determined by the agency or the department, prior to or at the meeting during which the records will be discussed.... If the agency in which a public body functions maintains a regularly and routinely updated website... such records shall be posted on the website to the extent practicable...POL § 103 (a) & (e) (emphasis added). See also Matter of Am. Soc. for Prevention of Cruelty to Animals v. Bd. of Trustees of State Univ. of New York, 79 N.Y.2d 927, 929 (1992).
1. Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon.POL § 106 (1).
The OML provisions are "to be liberally construed in accordance with the statute's purposes." Gordon v. Vil. of Monticello, Inc., 87 N.Y.2d 124, 127 (1995). As to meetings, when there is an assemblage at which a quorum of members are present and when the topics for discussion and eventual decision are such as would otherwise arise at a regular meeting, that must be public. See Matter of MCI Telecom. Corp. v. Pub. Serv. Com'n of the State of NY, 231 A.D.2d 284, 290 (3d Dept 1997); Orange County Publications, Div. of Ottaway Newspapers, Inc. v. Council of City of Newburgh, 60 A.D.2d 409, 417 (2d Dept 1978), aff'd, 45 N.Y.2d 947; Sciolino v. Ryan, 103 Misc.2d 1021, 1027 (Monroe Co Sup Ct 1980), aff'd, 81 A.D.2d 475 (4th Dept 1981).
The POL continues on to provide that:
1. Any aggrieved person shall have standing to enforce the provisions of this article against a public body... In any such action or proceeding, if a court determines that a public body failed to comply with this article, the court shall have the power, in its discretion, upon good cause shown, to declare that the public body violated this article and/or declare the action taken in relation to such violation void... If the court determines that a public body has violated this article, the court may require the members of the public body to participate in a training session...
An unintentional failure to fully comply with the notice provisions required by this article shall not alone be grounds for invalidating any action taken at a meeting of a public body...
2. In any proceeding brought pursuant to this section, costs and reasonable attorney fees may be awarded by the court, in its discretion, to the successful party. If a court determines that a vote was taken in material violation of this article, or that substantial deliberations relating thereto occurred in private prior to such vote, the court shall award costs and reasonable attorney's fees to the successful petitioner, unless there was a reasonable basis for a public body to believe that a closed session could properly have been held.POL § 107 (1)-(2) (emphasis added). See also Mobil Oil Corp., 224 A.D.2d at 29.
As can be seen from the above wording, "[n]ot every breach of the [OML] automatically triggers its enforcement sanctions." Matter of Max v. Ward, 107 A.D.3d 1597, 1600 (4th Dept 2013) (internal citation omitted). See also Reese v. Erie County Bd. of Elections, 172 A.D.3d 1942, 1943 (4th Dept 2019), lv denied, 33 N.Y.3d 906. The challenger carries the good cause burden. See New York Univ. v. Whalen, 46 N.Y.2d 734, 735 (1978). "'Good cause' factors include 'insufficient notice, unreasonable starting times, improper convening of executive sessions, and improper exclusion of members of the public.'" Windsor Owners Corp. v. City Council of City of New York, 23 Misc.3d 490, 495 (NY Co Sup Ct 2009) (internal citation omitted). Ultimately, the determination of an appropriate remedy for a OML infraction is "expressly a matter of judicial discretion." Matter of Zehner, 91 A.D.3d at 1350 (emphasis added). OML violations need not be 'repetitious or egregious" to draw an attorneys' fee award. See Auburn Publishers, Inc. v. Netti, 229 A.D.2d 988 (4th Dept 1996).
First of all, the Town did not violate the OML. As Petitioners have to concede, the published notices reference: all applications; a "[m]eeting review" [ i.e. "pre meeting"]; the exact place [DPW Conference Room]; and, precise time [6:30 p.m.] [Index #: E20218000937 - Docket #'s 786-786]. This is more than adequate OML notice compliance as raised in the Town's affirmative defense. See Fichera v. New York State Dept. of Envtl. Conservation, 159 A.D.3d 1493, 1497 (4th Dept 2018). Cf. Matter of Goetschius v. Bd. of Educ. of the Greenburgh Eleven Union Free School Dist., 281 A.D.2d 416, 417 (2d Dept 2001) (the respondent improperly convened executive sessions) [Index #: E2018000937 - Docket # 673, p. 164]; Rampello v. E. Irondequoit Cent. School Dist., 236 A.D.2d 797, 798 (4th Dept 1997) (the respondent failed to provide public notice) [Index #: E2018002961 - Docket # 546, p. 133]; New York State Nurses Ass'n v. State Univ. of New York, 39Misc.3d 588 (Kings Co Sup Ct 2013) (improper use of executive sessions to exclude public after use of a vague notice) [Index #: E2018000937 - Docket # 920, p. 104]. Also, Mr. Boehner's notes were not qualifying resolutions needing to be posted.
Additionally, BGR's allegedly new and unpleaded claims about missing pre-meeting minutes, a private meeting with the Developers, and a member's ejection from a meeting are all not properly before this Court. See Matter of Town of Rye v. New York State Bd. of Real Prop. Services, 10 N.Y.3d 793, 795 (2008) (legal claim not included in petition was not preserved). Furthermore, these claims do not draw OML sanctions as the Developers meeting - with less than a quorum present (see OML § 102 (1); Matter of MCI Telecom. Corp. v. Pub. Serv. Com'n of the State of NY, 231 A.D.2d 284, 290 (3d Dept 1997)) - was mentioned at the public meeting, so nothing was hidden. The pre-meetings minutes are not actionable. See e.g. Goldberg v. Elia, 174 A.D.3d 1214, 1215 (3d Dept 2019) (not accepting that an error took place when the board did not "[k]eep complete and accurate minutes"). BGR further complains that Mr. Jacobson was wrongly ejected from the August 15, 2018, meeting. This too is not an redressable OML injury.
Secondly, and in the alternative, Petitioners did not fulfill their burden to demonstrate good cause for a nullification windfall remedy. See e.g. New Yorkers for Constitutional Freedoms v. New York State Senate, 98 A.D.3d 285, 297 (4th Dept 2012) (the plaintiffs failed to show good cause to nullify administrative adjudication per the OML) [Index #: E2018002961 - Docket # 546, p. 109, n. 59]; Matter of Stop BHOD v. City of New York, 22 Misc.3d 1136 (A) (Kings Co Sup Ct 2009) (OML contention did not reach the level of setting aside the subject decision) [Index #: E201800937 - Docket # 1038, p. 121].
Petitioners engaged in the larger Planning Board process (see Buckley v. Zoning Bd. of Appeals of City of Geneva, 189 A.D.3d 2080, 2082 (4th Dept 2020); Cleere v. Frost Ridge Campground, LLC, 55 Misc.3d 1206 (A) (Genesee Co Sup Ct 2016), aff'd, 155 A.D.3d 1645 (4th Dept 2017)), and there is no proof that anyone was actually barred from the pre-meetings in the conference room, so there is no actual prejudice. See e.g. Carrier v. Town of Palmyra Zoning Bd. of Appeals, 30 A.D.3d 1036, 1038 (4th Dept 2006) (although the ZBA violated the OML, the petitioner failed to show good cause why the court should exercise its discretion to void the ZBA's determination as a sanction); Griswald v. Vil. of Penn Yan, 244 A.D.2d 950, 951 (4th Dept 1997) (the petitioner failed to show good cause for OML voiding sanction). Moreover, an award of attorneys' fees is similarly unjustified (see e.g. Gordon, 87 N.Y.2d at 128 (where the defendant made a good-faith, reasonable effort to comply with the OML, attorneys' fees may not be warranted) [Index #: E2018000937, Docket # 673, p. 166]; Matter of Brown v. Feehan, 125 A.D.3d 1499, 1501 (4th Dept 2015) (court did not abuse its discretion in refusing to award attorneys' fees to the petitioner for OML violation); Canandaigua Messenger, Inc. v. Wharmby, 292 A.D.2d 835, 835 (4th Dept 2002) (reversing OML fee award)), nor is directed remedial training.
Lastly, BGR persists in a further remedy per CPLR 3123, but this too does not succeed. Section 3123 provides that:
(a) Notice to admit; admission unless denied or denial excused... a party may serve upon any other party a written request for admission by the latter of... the truth of any matters of fact set forth in the request... Each of the matters of which an admission is requested shall be deemed admitted unless within twenty days after service thereof or within such further time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters...
(c) Penalty for unreasonable denial. If a party, after being served with a request under subdivision (a) does not admit and if the party requesting the admission thereafter proves the.. truth of any such matter of fact, he may move at or immediately following the trial for an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including reasonable attorney's fees. Unless the court finds that there were good reasons for the denial or the refusal otherwise to admit...CPLR 3123 (a) & (c). See also Groeger v. Col-Les Orthopedic Assoc., P.C., 136 A.D.2d 952 (4th Dept 1988).
A notice to admit is to be used only for disposing of uncontroverted questions of fact or those that are easily provable, "not for the purpose of compelling admission of fundamental and material issues or ultimate facts that can only be resolved after a full trial." Meadowbrook-Richman, Inc. v. Cicchiello, 273 A.D.2d 6 (1st Dept 2000) (emphasis added). See also Omar v. Moore, 196 A.D.3d 1182, 1184 (4th Dept 2021).
BGR served a Notice to Admit on or about May 16, 2019, which asked about non-noticed private meetings that were intended to be closed to the public. The Planning Board responded to the same by objecting to the OML questions are improperly going to the "heart of the matters at issue" [Index #: E2018002196; Ex. L, ¶¶ 21-29 (citing Voigt v. Svarino Constr. Corp., 94 A.D.3d 1574 (4th Dept 2012) ("A notice to admit which goes to the heart of the matters at issue is improper...")]. BGR rejected this response. This rejection was erroneous as the Planning Board's objection was sustainable. See e.g. Pasek v. Catholic Health Sys., Inc., 195 A.D.3d 1477 (4th Dept 2021) (finding that notices requested improper admissions). Thus, this Court declines to impose deemed admissions against the Planning Board, and in turn, award BGR any affirmative relief. See e.g. Williams v. Kublick, 42 A.D.3d 872 (4th Dept 2007) (court erred in granting motion deeming the facts in notice to admit as having been admitted); Miller v. Hilman Kelly Co., 177 A.D.2d 1036, 1037 (4th Dept 1991) (it was error for the court to grant summary judgment on the basis of the unanswered notices which were aimed at contested, ultimate issues).
BGR's attorneys' fee request is also premature as it applies only after a trial.
CONCLUSION
Based upon all of the foregoing, it is the Decision and Order of this Court that:
1. SMA's motions are DENIED.
2. CAC's motion is DENIED.
3. BGR's motions are DENIED.
4. The Town's motions are DENIED IN PART AND GRANTED IN PART. The motions are DENIED as to the Auburn Trial claims, but GRANTED as to the Town Board and Planning Board claims.
5. The Developers' motions are DENIED IN PART AND GRANTED IN PART. The motions are DENIED as to the Auburn Trial claims, but GRANTED as to the Town Board and Planning Board claims.
Accordingly, the Town is directed to E-file proposed Orders for each Index Number.