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Town files suit against state DEC for refusal to grant EPCAL subdivision approval

The Riverhead Town Board is expected to vote on a resolution Tuesday to authorize a lawsuit against the New York State Department of Environmental Conservation over its reluctance to grant approval to the town’s proposed eight-lot subdivision at Enterprise Park at Calverton.

That lawsuit already was filed March 17.

At its work session Thursday, Town Board members asked why the lawsuit was filed without a Town Board resolution authorizing it.

“This should have been done already,” said Councilwoman Catherine Kent. 

Councilman Tim Hubbard agreed, saying: “It should have come up as a resolution before we take any action.” 

Ms. Kent, who is running against Supervisor Yvette Aguiar for supervisor in the fall, said she wanted to hear why this happened from Ms. Aguiar, who in turn, asked to hear from town Attorney Bob Kozakiewicz.

He said the board was in agreement with filing the lawsuit. He took responsibility for allowing the lawsuit to proceed without a resolution, despite the fact that the town has outside council bringing the suit.

The lawsuit was filed in Albany County by the town and the Riverhead Community Development Agency. Attorney Frank Isler, acting as an outside consultant for the town, brought the case. 

The lawsuit seeks to annul a Nov. 19, 2020 notice of incomplete application from the DEC, as well as a Feb. 12, 2021 correspondence with respect to the town’s application for a subdivision permit required under the state’s Wild, Scenic and Recreational Rivers Act, which limits development along the Peconic River.

The DEC said the town’s application will not be deemed complete unless the town agreed to designate the Suffolk County Water Authority as the provider of public water for the proposed subdivision, rather than the Riverhead Water District.

The town argues that the DEC’s determination that the Riverhead Water District is not allowed to provide public water to EPCAL is “arbitrary and capricious” based on the fact that the DEC has previously issued WSRRA permits to three prior subdivisions at EPCAL, and the DEC has recognized the Riverhead Water District as the provider of public water in all of them. 

The lawsuit lists the nearly 500-acre industrial core at EPCAL, the Stony Brook Incubator, the Peconic Care Center (also known as Wellbridge), and the Island Water Park, all of which receive water from the Riverhead Water District and all of which “upon information and belief,” do so with DEC approval.

The lawsuit says that in 1999, the U.S. Economic Development Administration awarded grant money to the town’s Industrial Development Agency and the Riverhead Water District to extend and improve the water system at EPCAL.

The EPCAL land was previously owned by the Navy and was leased to the Grumman Corporation for testing and assembling aircraft. When Grumman left, the property was turned over to the town in 1998. The town was required to develop a reuse plan for the land that would seek to replace the jobs that were lost by Grumman’s departure. 

In July 2016, the Town Board adopted a final supplemental generic environmental impact statement for what was then a 50-lot subdivision sought by the town. The Riverhead Water District was confirmed as the potable water provider for the site, the lawsuit says, adding that the DEC “fully participated in this entire” process.

In 2017, the town entered into a contract to sell 1,643 acres at EPCAL to Luminati Aerospace. By this time, the town was seeking an eight-lot subdivision, of which three of the lots would be sold. The 50-lot subdivision would be abandoned. 

When the town submitted a WSRRA application for the eight-lot subdivision, the DEC required the town to conduct additional and comprehensive review, and the DEC issued a notice of incomplete application on July 20, 2020, the lawsuit states.

That notice stated that the water supply history provided by the town “must be revised to clearly indicate that Riverhead Water District is not currently permitted by the Department to serve public water to this area.”

A Nov. 19, 2020 notice from the DEC declared that the town’s WSRRA application “will not be deemed complete unless the town obtains from the Suffolk County Water Authority a statement that it will withdraw it objections to the Town of Riverhead’s Water District being the water provider for EPCAL.”

The SCWA rejected the town’s request to remove its objection to Riverhead Water District serving EPCAL. 

The town argues in its lawsuit that there is no requirement that the provider of water must be designated for WSRRA permit related to land division. 

In an interview in February, Tim Hopkins, SCWA’s chief legal officer, said that “any land not covered by a water district is covered by the SCWA.”

These areas are assigned by the DEC, he said.