Preview
FILED: MONROE COUNTY CLERK 11/08/2022 02:44 PM INDEX NO. E2018002961
NYSCEF DOC. NO. 951 RECEIVED NYSCEF: 11/08/2022
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3247712
Book Page CIVIL
Return To: No. Pages: 216
MINDY LEE ZOGHLIN
300 State Street, Suite 502 Instrument: EXHIBIT(S)
Rochester, NY 14614
Control #: 202211080365
Index #: E2018002961
Date: 11/08/2022
Brighton Grassroots, LLC Time: 2:47:23 PM
JACOBSON, HOWARD R.
HWANG, MARGERY
KERRY, ROBERTA
GRANT, DAVID G.
TOWN OF BRIGHTON
TOWN OF BRIGHTON TOWN BOARD
TOWN OF BRIGHTON PLANNING BOARD
M&F, LLC
DANIELE SPC, LLC
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
202211080365 Index #
INDEX : E2018002961
NO. E2018002961
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EXHIBIT B-5
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STATE OF NEW YORK
SUPREME COURT COUNTY OF MONROE
BRIGHTON GRASSROOTS, LLC,
(INCLUDING MEMBERS: HOWARD R. JACOBSON,
MARGERY HWANG, ROBERTA KERRY,
DAVID G. GRANT, ANTHONY KINSLOW,
PETER MULBERY, LISA WHITTEMORE,
NORMAN WHITTEMORE, ROBERTA
KERRY-SHARICK, LINDSAY DUELL),
Petitioners/Plaintiffs,
vs.
TOWN OF BRIGHTON,
TOWN OF BRIGHTON TOWN BOARD,
TOWN OF BRIGHTON PLANNING BOARD, Index No.: E2018002961 (BGR 1)
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.;
2835 MONROE HOLDINGS LLC;
2875 MONROE CLOVER, LLC;
MONROE OFFICE SUITES, LCC;
CLOVERPARK LIMITED PARTNERSHIP;
NEW YORK STATE DEPARTMENT OF TRANSPORTATION;
JOHN DOES 1- 20; AND ABC CORPORATIONS 1-20
Respondents/Defendants.
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STATE OF NEW YORK
SUPREME COURT COUNTY OF MONROE
BRIGHTON GRASSROOTS, LLC,
Petitioner/Plaintiff,
vs.
TOWN OF BRIGHTON PLANNING BOARD,
TOWN OF BRIGHTON TOWN BOARD,
TOWN OF BRIGHTON,
M&F, LLC; DANIELE SPC, LLC,
MUCCA MUCCA LLC,
MARDANTH ENTERPRISES, INC,; Index No.: E2018007330 (BGR 2/3)
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; 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.
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STATE OF NEW YORK
SUPREME COURT COUNTY OF MONROE
BRIGHTON GRASSROOTS, LLC,
Petitioner/Plaintiff,
vs.
Index No.: E2021000039 (BGR 8)
TOWN OF BRIGHTON ONING
BOARD OF APPEALS, TOWN OF BRIGHTON
OFFICE OF THE BUILDING INSPECTOR,
TOWN OF BRIGHTON, M&F, LLC; DANIELE SPC, LLC;
MUCCA MUCCA LLC; MARDANTH ENTERPRISES, INC.,
DANIELE MANAGEMENT, LLC; COLLECTIVELY
DOING BUSINESS AS DANIELE FAMILY COMPANIES,
JOHN DOES 1-20, ABC CORPORATIONS 1-20
Respondents/Defendants.
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GREETING:
WE COMMAND that, all business and excuses being laid aside, in accordance with
CPLR §§ 2303a, 2305, 3106b, and 3107, that you attend trial before the Honorable Judge
Odorisi at the Monroe County Hall of Justice located at 99 Exchange Blvd Rochester, NY 14614
on December 5, 2022 at 9:30 am or at any recessed or adjourned date, to give oral testimony, to
be recorded stenographically before a certified court reporter and possibly video recorded,
necessary to the prosecution of this action, and continuing from day-to-day until completed.
The reason you are being required to testify is that you have information relevant,
material, and necessary to the prosecution of the Petitions in these lawsuits. Copies of the
Petitions in each lawsuit are attached as Exhibits A, B and C.
PLEASE TAKE NOTICE that if you fail to comply, you will be deemed guilty of
contempt of court, and liable to pay all losses or damages and forfeit one hundred fifty dollars.
Dated: October 7, 2022
Rochester, New York
______________________________
THE ZOGHLIN GROUP, PLLC
Mindy L. Zoghlin, Esq.,
Attorney for Petitioners
Office and Post Office Address
300 State Street, Suite 502
Rochester, New York 14614
Tel.: (585) 434-0790
E-Mail: Mindy@ZogLaw.com
IF YOU HAVE ANY QUESTIONS REGARDING THIS TRIAL SUBPOENA, PLEASE
CONTACT MINDY ZOGHLIN AT THE ZOGHLIN GROUP, PLLC 585-434-0790
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TO: WEAVER MANCUSO BRIGHTMAN PLLC
John A. Mancuso, Esq.
Attorney for the Town of Brighton
150 Allens Creek Road, Suite 240
Rochester, NY 14618
Tel.: (585) 301-4777
E-mail: jmancuso@wmbpllc.com
WOODS OVIATT GILMAN LLP
Warren B. Rosenbaum, Esq.
John C. Nutter, Esq.
Jerry A. Goldman, Esq.
Erin Elmouji, Esq.
Attorneys for the Developer
1900 Bausch & Lomb Place
Rochester, NY 14604
E-mail: wrosenbaum@woodsoviatt.com
jnutter@woodsoviatt.com
jgoldman@woodsoviatt.com
eelmouji@woodsoviatt.com
CC: HODGSON RUSS LLP
Charles W. Malcomb, Esq.
Aaron Saykin, Esq.
Attorneys for Save Monroe Ave., Inc.
The Guaranty Building
140 Pearl Street, Suite 100
Buffalo, New York 14202-4040
Tel.: (716) 848-1261
E-Mail: CMalcomb@HodgsonRuss.com
Asaykin@HodgsonRuss.com
NIXON PEABODY LLP
Robert Burgdorf, Esq.
Laurie Styka Bloom, Esq.
Attorneys for Cover Allens Creek
Neighborhood Association LLC
1300 Clinton Square,
Rochester, NY 14604-1792
Tel: (585) 263-1333
E-mail: Rburgdorf@nixonpeabody.com
Lbloom@nixonpeabody.com
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ROCHESTER GAS AND ELECTRIC CORPORATION
John Forbush, Esq.
89 East Avenue, 10th Floor
Rochester, NY 14649
Email: John.forbush@avangrid.com
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EXHIBIT A
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STATE OF NEW YORK
SUPREME COURT MONROE COUNTY
BRIGHTON GRASSROOTS, LLC,
(INCLUDING MEMBERS: HOWARD
R. JACOBSON, MARGERY HWANG,
ROBERTA KERRY, DAVID G. GRANT,
ANTHONY KINSLOW, PETER MULBERY,
LISA WHITTEMORE, NORMAN
WHITTEMORE, ROBERTA
KERRY-SHARICK, LINDSAY DUELL),
Petitioners/
vs. Plaintiffs,
TOWN OF BRIGHTON, Index No.
TOWN OF BRIGHTON TOWN BOARD, E2018002961
TOWN OF BRIGHTON PLANNING BOARD,
M&F, LLC; DANIELE SPC, LLC
MUCCA MUCCALLC;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,
LCC; CLOVERPARK LIMITED PARTNERSHIP;
NEW YORK STATE DEPARTMENT OF TRANSPORTATION;
JOHN DOES 1- AND ABC CORPORATIONS
20; 1-20,
Respondents/
Defendants.
FIRST AMENDED VERIFIED PETITION AND COMPLAINT
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(" Petitioners"
Petitioners/plaintiffs ("Petitioners"), by their attorneys, The Zoghlin
(" Respondents"
Group PLLC, complain of Respondents/Defendants ("Respondents") as
follows:
I. INTRODUCTION
1. This is a combined Declaratory Judgment and Article 78
"Town"
proceeding to challenge the Town of Brighton's (the "Town") decisions
granting Incentive Zoning approval and adopting the SEQRA Findings
"Action"
Statement for the Whole Foods Plaza project (the or "Proposed
Development"
Development") without complying with, among other things, New York
State Town Law § 261(b) (the State Incentive Zoning Law enabling
statute); the Town of Brighton Zoning Code; the Town of Brighton
Incentive Zoning Law; the New York State Environmental Quality Review
Act ("SEQRA"); and the New York State Open Meetings Law.
2. The Action is an illegal use of Incentive Zoning because,
among other things, the Town exceeded the scope of its lawful authority
by granting benefits to the developer that far exceeded the value of
"amenities" "amenities"
granted to the Municipality. In fact, the are in
actuality mitigation measures that the municipality could have required
in the normal zoning and SEQRA review process, and therefore do not
legally constitute Incentive Zoning concessions.
3. The Action required, but failed to obtain, state legislative
approval for the alienation of public parkland in violation of the public
trust doctrine.
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4. The Action required, but failed to obtain, conveyance of a
Town owned real estate interest subject to a permissive referendum
pursuant to NY Town Law § 90 et seq.
5. Petitioners seek an order pursuant to CPLR Article 78 and
3001 et seq.:
a) annulling and vacating the March 28, 2018 Resolution
granting Incentive Zoning approval for the Proposed
Resolution"
Development (the "Incentive Zoning Resolution");
b) annulling and vacating the March 28, 2018 Resolution
adopting the SEQRA Findings Statement (the "SEQRA
Resolution"
Resolution");
c) annulling and vacating all related actions;
d) temporarily and permanently enjoining respondents from
taking any action regarding approvals for the Proposed
Development without first complying with the provisions of
the NYS Town Law § 261-6 (Incentive Zoning enabling
legislation); and the provisions of the Town of Brighton Town
Code;
e) temporarily and permanently enjoining Respondents from
taking any action regarding approvals for the Proposed
Development without first complying with the provisions of
the State Environmental Quality Review Act ("SEQRA"), and
New York Environmental Conservation Law ("ECL"), section
8-0101 et seq.;
f) temporarily and permanently enjoining the Respondents
from proceeding with the Proposed Development until the
Town has alienated the Recreation Easement, with prior
State legislative approval, all in compliance with the Public
Trust Doctrine;
g) temporarily and permanently enjoining Respondents from
taking any action regarding approvals for the Proposed
Development without first conveying the Town owned real
estate interest subject to a permissive referendum pursuant
to Town Law § 90 et seq., and upon meaningful notice to the
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public in compliance with the spirit and intent of the Open
Meetings Law;
h) temporarily and permanently enjoining the Respondents
from conducting any activities/site work with respect to the
Proposed Development during the pendency of this action;
i) directing the Town of Brighton to comply with Chapter 13 of
the Brighton Town Code by preserving the Recreation
Easement and its natural features;
j) directing the Town of Brighton to carry out its duty, as
Trustee, to protect the Recreation Easement, as trust corpus,
for the benefit of the people of New York State, the Trust
beneficiaries, by enjoining the Town of Brighton from
implementing any plan to relocate the Recreation Easement;
k) permanently enjoining the Town of Brighton from alienating
tire Recreation Easement without prior legislative approval;
1) declaring that the Town's conveyance of the Recreation
Easement to the Developer is subject to the public's right to
petition for a permissive referendum, and to give the public
adequate notice pursuant to the intent and requirements of
New York's Open Meetings Law;
m) determining that the Town's conduct with respect to the
Action violated New York's Open Meetings Law; and
attorneys'
n) awarding petitioners their fees, costs and
disbursements, together with such other and further relief as
this court deems just and proper.
II. THE PARTIES
("
6. Brighton Grassroots, LLC ("Brighton Grassroots") is a
domestic limited liability company organized and existing under the laws
of the state of New York and is authorized to do business in New York. It
is comprised of Town of Brighton residents who share the values and
objectives of the organization, and has broad community support as
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evidenced by, among other things, the approximately 500 residents who
came to the February 28, 2018 public hearing to object to the Town
approving this Project under Incentive Zoning instead of applying the
standard protections of the zoning code.
7. Brighton Grassroots was formed for the purposes of, among
other things, advancing by any legal means the betterment of the
community of the Town of Brighton by: encouraging and advocating for
open, honest and transparent local government; adherence to local
zoning, land use and other laws; and education, litigation and advocacy
related thereto.
8. Brighton Grassroots believes that itwas unlawful for the
Town to circumvent the traditional zoning process by granting Incentive
Zoning approvals for the Proposed Development in a manner that
misused the Incentive Zoning process established under state and local
law.
9. Brighton Grassroots believes that it was unlawful for the
Town to circumvent the traditional zoning process by granting Incentive
Zoning approvals for the Proposed Development in a manner that
provided grossly disproportionate benefits to the Developer as compared
to the benefits received by the community.
10. Brighton Grassroots commenced this litigation because,
among other reasons,
a) It was unlawful for the Town to use Incentive Zoning (or any
zoning) for the purpose of giving this Developer a financial
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"bailout"
to help the Developer correct its poor financial
decisions, instead of applying the legal standards that must
be applied.
b) The Town Board, as Lead Agency under SEQRA, failed to
identify and mitigate potentially significant traffic impacts
associated with the Proposed Development.
c) The Town Board's conduct with respect to the Proposed
Development violated New York's Open Meetings Law, and
representatives'
the Town obligations to act in a transparent
(and socially responsible) manner in violation of the spirit,
intent and language of the Open Meetings Law.
d) The Town Board's decision unlawfully misused the Incentive
Zoning process to permit oversized private development in
violation of standard zoning limits for the primary purpose of
increasing this Developer's profits, at the expense of the
community, instead of applying the appropriate legal
standards.
11. The Town Board's efforts ignored its legal obligations under
the public trust doctrine by agreeing to alienate public parkland without
prior legislative approvals and by authorizing a conveyance of Town
property without a permissive referendum.
12. Brighton Grassroots constituents come from the entire
Brighton community (and, increasingly, parts of Pittsford). Many of
Grassroots'
Brighton members reside in the immediate area that would
be directly and adversely affected by the facts and circumstances pleaded
herein, and many of its members also regularly use the segment of the
recreational trail commonly referred to as the Auburn Trail that runs
between Allens Creek Road and Clover Street in the Town of Brighton,
and therefore have an interest different from the public at large. Several
Grassroots'
of Brighton members reside within 500 feet or less of the
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Proposed Development.
13. Petitioners Hwang, Kerry, Grant, Kinslow, Mulbery, L.
Members"
Whittemore, N. Whittemore and Duell (the "Individual Members") all
reside in close proximity to the intersection of Clover Street and Allens
Creek Road, and frequently use that intersection to go to and from their
homes and work.
14. The developer admits that the proposed development will
cause westbound left turn movement to degrade from a LOS (level of
"E" "F" Associates'
service) to (failing) during the PM peak hour. See SRF
Traffic Impacts Study for the proposed Whole Foods Plaza Redevelopment
Study"
(last dated January 19, 2018) (the "Traffic Impact Study"), page 25, para.
15. The Traffic Impact Study is attached hereto as Exhibit M. This will
result in special harm to the Individual Members.
15. The developer admits that the volume of traffic on Clover
Street between Shoreham Drive and Allens Creek Road will increase as a
result of the Proposed Development. Traffic Impact Study, Exhibit M,
Table XII, pages 32-33. This will result in adverse traffic impacts and
other special harm to the Individual Members.
16. The developer admits that the volume of traffic on Allens
Creek between Schoolhouse Lane and Clover Street will increase as a
result of the Proposed Development. Traffic Impact Study, Exhibit M,
Table XII, pages 32-33. This will result in adverse traffic impacts and
special harm to the Individual Members.
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17. The interests sought to be protected by Brighton Grassroots
are germane to its purposes.
18. Howard R. Jacobson is an individual residing at 10
Sandringham, Town of Brighton ("Jacobson"). Jacobson resides
approximately 1.2 miles north and east of the Proposed Development.