Judge rules against Riverhead Town in ongoing dispute with DEC

An Albany County Judge last month dismissed two Riverhead Town petitions seeking to annul two “notices of incomplete application” rulings made against the town by the New York State Department of Environmental Conservation.

The lawsuit was filed March 17 by the Town of Riverhead and the town’s Community Development Agency — which have the same members — against the New York State DEC.

The action is part of the town’s dispute with the state over whether the Suffolk County Water Authority, and not the Riverhead Water District, supply water at the Enterprise Park at Calverton.

The lawsuit asked acting Albany County Judge James Ferreira to annul a state DEC determination dated Nov. 19, 2020 with respect to the Town’s application for a “Wild, Scenic and Recreational Rivers Act” permit, which is required for the eight-lot subdivision at EPCAL the town planned. 

The DEC had also issued a “notice of incomplete action” in July 20, 2020.

“The information submitted to date will require a considerable amount of revision and additional information,” the DEC wrote at the time.

The DEC determined that the permit application by the town “will not be deemed complete unless the Town agrees to designate the Suffolk County Water Authority as the provider of public water to the proposed subdivision.”

The Town argued that the DEC’s determination that the Riverhead Water District is not allowed to provide public water to the ECPAL property “is arbitrary and capricious because DEC has previously expressly recognized Riverhead Water District as the provider of water with respect to three prior subdivisions of the EPCAL property and has consistently recognized Riverhead Water District as the water provider for all of EPCAL.”

But the DEC said the town’s case should be dismissed on several grounds, including that the town failed to exhaust administrative remedies before commencing the lawsuit, and Judge Ferreira agreed. He wrote that “one who objects to the act of an administrative agency must exhaust available administrative remedies before permitted to litigate in a court of law,” quoting prior case law. 

He said an Article 78 lawsuit “shall not be used to challenge a determination … which is not final or can be adequately reviewed by appeal to a court.”

The judge wrote, “Even assuming, without deciding, that the notices constitute a determination by DEC that the Riverhead Water District cannot provide water services to EPCAL, it is unclear how, or whether, petitioners (the town) have suffered any actual, concrete injury arising from that alleged determination, especially where is appears that SCWA is able to provide water to the property and that the success of the agency’s permit application.”

Town Attorney Bob Kozakiewicz said the town is continuing its review of the ruling.