2012 1025 calverton manor

The hamlet of Calverton will get its second retail shopping center and 40 apartments under a stipulation settling a seven-year-old lawsuit brought against Riverhead Town by a developer.

The settlement agreement will essentially reinstitute pre-master plan zoning on the 41-acre parcel of vacant land on the northwest corner of Middle Country Road and Manor Road, according to officials.

If approved by the town board, the stipulation — which disposes of several lawsuits filed by Calverton Manor LLC, challenging the 2003 master plan and new zoning on the site adopted by the town in 2005 — would allow the developer to build up to 155,000 square feet of mixed-use “campus style” commercial and residential uses.

Uses include a grocery store, a restaurant, a bank, other retail or office uses, and 40 apartments in six buildings, according to documents filed by the developer with the town planning department.

All construction must be clustered on the southern 29 acres of the split-zoned parcel, leaving the northern 12.7 acres, which abut a residential subdivision, undeveloped. No building will be larger than 35,000 square feet, under the terms of the stipulation.

The stipulation would set aside the site’s current rural corridor and agricultural protection zoning classifications and allow the developer to build pursuant to the standards and densities in the Business C-Rural zoning use district — the zoning classification of most of the site before the town adopted a new comprehensive land use plan and new zoning use districts. The rear portion of the site — north of the high-tension line that runs across the land — was zoned Residence A and Agriculture A prior to the zone change, which put the 12.7 acres in the agricultural protection zone.

The deal, which has not yet been inked by the town, would settle five separate lawsuits brought by the developer challenging the rezoning of the site and the validity of the comprehensive plan.

Though the agreement is not yet final, the environmental review process contemplated by the settlement has already begun. The developer has prepared an “expanded environmental assessment form” for the project and will not be required to complete a full environmental impact statement, according to deputy town attorney William Duffy. “Coordinated review” under the state environmental quality review act has already been initiated, he said. The town board will be lead agency for purposes of coordinated review, Duffy said.

Riverhead planner Joe Hall presented the EAF to the planning board, which is an involved agency for the purposes of SEQRA review, at last week’s planning board meeting.

Riverhead Supervisor Sean Walter said in an interview he favors the settlement and a majority of the town board is in agreement. Losing the action would put the entire master plan at risk, Walter said, and he believes the developer’s case is strong.

But civic groups oppose the settlement, arguing that it will allow suburban sprawl to encroach upon the still-bucolic Calverton hamlet.

The Calverton Civic Association wrote a letter to the town asking it to see the lawsuit through and not settle, civic group president Rex Farr said.

“Our concern is you are going to open up the extension of [Route] 58 steamrolling through to Wading River,” Farr said. The master plan put the new zoning in place to combat sprawl, he said. Uses allowed in the rural corridor zone are limited and lot coverage is minimized. “That was done on purpose.”

Farr said the supervisor’s stated concern that the entire master plan might be overturned is “a bunch of crap as far as I’m concerned.” The town always settles and doesn’t fight these challenges the way it should, Farr said.

Riverhead Neighborhood Preservation Coalition president Dominique Mendez offered a similar assessment.

“All they were ever interested in was settling this suit,” Mendez said. “But it just doesn’t make sense to me that the town would just give up their right to enforce the master plan zoning.”

Walter has roundly criticized the 2003 comprehensive plan and in particular the rural corridor zoning use district, which he says is too limiting.

“The reality is the town needs tax base growth,” Walter said this week. He disputed the notion that the settlement allows Route 58 type development to sprawl beyond the Route 58 corridor. “These are not big box stores,” Walter said.

In January, when an earlier version of the stipulation was presented to the planning board, Walter told RiverheadLOCAL, “I’m not having big box stores come down off Route 58. I’d rather litigate than deal with this.”

He also said then he was “willing to work with” the developer to settle the litigation, but not by reinstating the pre-master plan Business CR zoning.

“There’s no way you can put 100,000 square feet, including 40 apartments, on 40 acres,” Walter said on Jan. 23. The current stipulation allows exactly that. This week the supervisor said he meant he objected to 100,000-square-foot stores, not 100,000 square feet of total development. But the prior draft he said he rejected in January allowed 100,000 square feet of development in total, with a single-store limit of 60,000 square feet, according to a presentation made by town planner Joe Hall at a planning board work session Jan. 19.

It would be too costly and time-consuming to undertake an update of the entire master plan, Walter said this week, pointing to the town’s recent experience with Route 25A in Wading River as an example. But he would revisit the entire master plan if he could, he said.

“It is an imperfect document,” he said.

Moreover, the process by which the plan and the zoning revisions were enacted were flawed, giving rise to the risk of the entire thing being set aside by a court, according to the supervisor.

“Now, some of those things, the town went back and fixed,” he said, “but the town is still at risk.” One of the claims, that the town failed to submit the final master plan to the county planning commission, could result in a court nullifying the master plan, he said. “This lawsuit has the potential to tear the master plan to shreds,” Walter said.

The expert testimony offered by the developer’s attorney to attack the master plan comes, oddly enough, from a planner who is currently the town’s own consultant under a $462,000 contract awarded by Riverhead Town in 2011, Theresa Elkowitz.

In a 36-page affidavit in support of the Calverton Manor complaint/petition, municipal planner Theresa Elkowitz cites “egregious deficiencies” in the town’s SEQRA documents and process — deficiencies which, she says, justify setting aside the entire comprehensive plan.

Elkowitz calls the comprehensive plan’s environmental impact analyses “self serving conclusions that are, at best, propaganda…” She accuses the town of violating the state environmental quality review act and adopting zoning in 2005 that didn’t even comply with its own 2003 plan.

Elkowitz’s planning firm, Freudenthal and Elkowitz, merged with Vanasse, Hangen & Brustlin PC in 2009. Riverhead in 2011 hired VHB to conduct a new land use study of the former Grumman site in Calverton and develop a new reuse plan and a subdivision plan for the site. The contract award drew criticism from opponents because the town board did not issue a request for proposals for the services.

Among the critics was former supervisor Phil Cardinale, who lost the post to Walter in 2009 and lost his bid to regain the position last year.

In an interview last week, Cardinale defended the master plan zoning. Walter’s rationale for settling the case “is not a valid justification,” he said.

“If we’re giving away the store here then if we followed that [rationale] we should have given away the store in virtually every other litigation challenging the new zoning,” Cardinale said.

Cardinale raised the issue of campaign donations from the developer being accepted by Walter, who defeated him in his 2009 re-election bid and again when he mounted a challenge to reclaim the supervisor’s office in 2011.

“It’s awkward,” Cardinale said, “when you’re taking campaign contributions from people the town’s in litigation with, and then you are making a favorable settlement with them.”

According to state board of elections campaign disclosure statements posted online, Walter’s campaign committee has accepted $3,000 in campaign contributions from Calverton Manor LLC, $1,650 in contributions from Elkowitz and $1,060 in contributions from the law firm representing Calverton Manor, since taking office in 2010.

Walter bristled at the suggestion that the donations influenced the town’s strategy on the lawsuit. One thing has nothing to do with the other, he said. The donations have no effect on policy decisions, legal actions or how his administration functions, Walter said.

“Unfortunately, that’s how political campaigns are financed in America,” he said.

Cardinale’s campaign committee also took a $500 contribution from Calverton Manor LLC in 2007.

“The town has a lot to lose if the court agrees with Calverton Manor,” the supervisor said, noting that there are other lawsuits challenging the master plan rezoning that are still pending. The Calverton Manor lawsuit has the potentially greatest impact, he said.

One of the other actions is a suit pertaining to more than 179 acres on Middle Country Road in Calverton, just east of Fresh Pond Avenue. That land, owned by Lizem Associates of Manhasset, was rezoned from Industrial C and Business CR to rural corridor and APZ when the master plan was implemented in 2005.

The action was brought by the same firm that represents Calverton Manor LLC, though court records indicate the current law firm representing the petitioners/plaintiffs is Esseks, Hefter and Angel of Riverhead.

The Lizem action sets forth the same claims regarding insufficiency of SEQRA review and failure to submit the final plan to the county planning commission.

The town, represented by Twomey, Latham, Shea & Kelly in that action, moved to dismiss the petition/complaint. But on Oct. 12, a state Supreme Court Justice Daniel Loughlin denied the town’s motion, ruling that the petition/complaint is sufficient to withstand the challenge. The court did not decide the merits of the case, which is next on the court’s calendar on Nov. 14.

The Calverton Manor LLC case is also on the court’s calendar for Nov. 14, before a different judge, William Rebolini.

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