By Lauren Young

Staff writer

A Rochester-based developer has sued the village of Fayetteville in state Supreme Court after the village pulled its reconsideration of a development proposal for an apartment-retail complex along Route 5 last September — a move the developer declares “violated lawful procedures.”

Rochester-based developer Morgan Management had proposed a 200-unit apartment-retail space at the former O’Brien & Gere manufacturing site on Genesee Street in Fayetteville, but, while a zone change request was pending, a grand jury indicted two company officials on bank and wire fraud charges.

That project was dropped in June, a few weeks after the indictments, though the Fayetteville Board of Trustees later reconsidered the project under a set of conditions. The board pulled the plug after that agreed-to set of conditions were not met by the developer, leading to its termination, said Mayor Mark Olson.

Now, FOUBU Environmental Services LLC — formed by O’Brien & Gere — and Morgan Acquisitions LLC have filed a lawsuit against the village, dated last September, asking the court to reverse the village’s decision in dropping its application and alleging its decision “violated lawful procedures.”

According to the plaintiffs, the village’s decision was “arbitrary and capricious,” used “unconstitutional exclusionary zoning,” was an “abuse of discretion,” and was taken “without just compensation.” The company argued that the project should be approved by the village.

According to the 40-page complaint, Morgan Management officials said, “this decision was the epitome of arbitrary and capricious decision-making under which the village ignored its legal obligations concerning petitioner’s 2017 PUD application because it’s based on indictments issued to two employees of a separate legal entity.”

According to the petition, “the mayor had no authority to decide the fate of a PUD application,” and the plaintiffs were misled into believing the project would be approved.

“The mayor’s, or the village’s, determination [to terminate the proposal] was contrary to previous acknowledgements by the mayor, the village board, the village planning board and other village officials that the 2017 PUD application was consistent with the village Comprehensive Plan and the PUD criteria,” said the compliant. “Unfortunately, the 2017 PUD application was denied because the village caved in the face of public pressure and litigation threats, no longer wanted to work with the particular applicant in light of certain criminal indictments and wanted to exclude ‘renters.’”

From the proposal’s inception, several residents have spoken against both the development and the developer during public hearings at the village hall, even sending in petitions to the board opposing its development.

Morgan Management’s lawsuit also declares that if they are not allowed to develop the site, it will sit “vacant and contaminated for the indefinite future” because the Brownfield Cleanup Program credits for 547 E. Genesee Street expire Dec. 31, 2019.

Due to pending litigation, Olson said he could not comment on the case.

A pending motion set for Nov. 14 has been adjourned for Wednesday, Dec. 19 at 10 a.m.