Board ready to settle lawsuit, paving the way for commercial uses, apartments in Calverton

A settlement agreement that will allow a Smithtown company to develop 41 acres in Calverton under the zoning that existed prior to the adoption of the 2003 master plan is expected to be approved tomorrow by the Riverhead Town Board.

The stipulation of settlement would end five lawsuits brought by Calverton Manor LLC in 2004 and 2005 that seek to have the town’s 2003 master plan and subsequent zoning code amendments implementing the plan set aside by a court, compelling the town to review and approve the company’s 2001 site plan application.

The consensus of a majority of the board to approve the stipulation came after an unusual public discussion with the developer and its attorney at the town board work session Thursday, Nov. 29.

John Wagner, the Hauppauge attorney representing Calverton Manor LLC, appeared with company principal Charles Mancini to pitch the settlement to board members. Deputy Town Attorney William Duffy and outside counsel Lisa Kombrink of the Riverhead law firm Twomey Latham et al. were also present.

Wagner outlined the history of the site plan application, which was filed in March 2001.
He accuses the town of purposely stalling the application so it could complete and adopt new zoning affecting his client’s property.

“The application was filed in 2001 for development of this site in full accordance with the zoning in effect at that time. It was processed by the town for a period of time,” Wagner told the board.

“Then the town began exploring the possibility of doing a comprehensive plan to basically rezone the core of the town, while the application was pending,” Wagner said.

Not so, says former councilwoman Barbara Blass, who was a member of the Riverhead Planning Board for 19 years and its chairman for six years.

“Contrary to their attorney’s representations, the master plan process was well underway before Calverton Manor’s site plan was filed and I’m surprised no one corrected him at the meeting,” she said. (The former councilwoman was not present at the work session but watched the a video recording of the meeting on RiverheadLOCAL.)

“The master plan process got started at the direction of then-supervisor Jim Stark in 1997, the contract with the planning consultants was negotiated by Vinny [Villella] in 1998 and they got started with the study, including extensive community outreach in 1998. We had the first meetings of the citizens advisory committees in spring of 1999,” Blass said. (The time frame for those meetings is also stated in the introductory paragraph of the adopted master plan document.)

Calverton Manor LLC did not actually take title to the property, located on the northwest corner of Route 25 and Manor Road, until Aug. 12, 2003, according to Suffolk County land records, which show Calverton Manor LLC bought the two parcels in question from Jamshid Noghrei for $2.4 million.

At Thursday’s meeting, Wagner claimed his client “was assured by the town that [the master plan process] would not affect the processing of this fully compliant application. All fees were paid,” he said.

“And we even had correspondence from the town attorney at one point as to when the application would be approved and it would be approved before any comp plan or zoning changes were effectuated,” Wagner told the board.

In an interview immediately following the work session discussion, Wagner said the town attorney who wrote the letter giving assurance of approval was a Zoe Zollo. Later that afternoon, Wagner called RiverheadLOCAL to say what he told the town board was wrong.

“I checked my file and I misremembered,” Wagner said. “Zollo was the attorney for the applicant at the time, not the town attorney. The letter was written to her not by her,” Wagner said. The actual author of the letter was Riverhead planning director Rick Hanley, Wagner said. “It was dated Oct. 28, 2001 and said he [Hanley] expects the town board to reach a final site plan decision by the end of December,” Wagner said.

The town’s lawyers did not respond to Wagner’s presentation in the open session, though Kombrick said “unfortunately we believe there are weaknesses on the town’s side, maybe not to the extent John’s presented them to you, but we do believe there are significant weaknesses and the town is at risk of losing the litigation.” She did not elaborate.

“They’re not going to give legal advice to the board publicly,” Supervisor Sean Walter said. “The board has to be equally reticent and not say too much,” he said.

That riled Mancini. “If there’s not going to be any response from the other side, is this whole thing a sham here? What’s the purpose,” he said. Mancini said he told board members if there was no settlement before the next court date of Dec. 5, he had instructed his lawyer to proceed with the litigation.

Wagner said he is prepared to go forward and expects to win the case, which he said would give his client the right to a building footprint of 176,000 square feet.

“I purposely lobbied this board to have this meeting under the understanding that we would come to an agreement to settle or not,” Mancini said.

“The previous administration was completely disingenuous as far as I was concerned,” Mancini said. “One of the things that I felt is that the new administration was business-friendly and they would cooperate, and to a great extent I think I wasn’t disappointed — until maybe last week,” Mancini said, to laughter among board members.

The supervisor polled board members. Councilmen John Dunleavy and George Gabrielsen both said they are ready to move forward with the settlement. Councilwoman Jodi Giglio gave her assent as well, though her agreement was conditioned, at least in part, on the letter Wagner said he had from the town attorney assuring approval before the master plan was adopted.

“I personally think that this is a unique situation and could not be precedent-setting because the application was filed long before the comprehensive plan was adopted and the master plan was adopted,” Giglio said. “And the good faith of the town by telling you, by a letter from the town attorney especially, saying that it will be approved prior to the comp plan being adopted or they would move forward in reviewing the application,” Giglio said.

“And I would like to see that letter but from what I’ve been told today and the downsizing of the application and the open space that will be established and the — I think it’s fair to settle with everything that’s been said today,” Giglio said.

Councilman James Wooten seemed to be the only holdout on the agreement. He said he wanted to confer privately with the town’s legal counsel “to get answers to some pointed questions” before making a decision.

The settlement would “stay” five lawsuits filed by Calverton Manor, beginning in March 2004. Four of the actions ask the court to throw out the town’s master plan, commercial zoning code adoptions, and the transfer of development rights program. The fifth asks the court to compel the town to process Calverton Manor’s site plan application.

The settlement would reinstate the zoning on the two parcels owned by Calverton Manor that existed prior to the master plan re-zoning effort: Business C-R, Residence A and Agriculture A. The master plan zoning changed their classification to Rural Corridor Zone, and Agricultural Protection Zone, significantly reducing the development density on both.

In exchange for reinstatement of the old zoning, Calverton Manor would agree to a reduction of development density that the old zoning would have allowed, limiting development on the site to gross floor area of 155,000 square feet maximum, with a total building footprint of 100,000 square feet maximum, in five or six buildings none of which will exceed 35,000. The development includes 40 apartments. The developer would “preserve approximately 50 percent of the … property from residential or commercial development,” according to the stipulation.

Calverton Manor’s original site plan proposed the construction of 152,275 square feet of retail in five buildings, with one being a 125,000-square-foot “big box” store. The residentially zoned portions of the two parcels owned by Calverton Manor could have been developed with single-family residences.

“The last version of the application with all changes requested by planning staff and what-not was in September 2003. All fees were paid and the whole thing was teed up to go at that point,” Wagner told the board Thursday.

The town board approved the final version of the Master plan on Nov. 3, 2003. It adopted new residential zoning use districts in June 2004 and commercial zoning use districts that October. It adopted the TDR law in April 2005.

The developer’s attorney claims the town did not properly follow the state environmental quality review law in adopting the master plan or its new zoning codes. He also claims the town failed to make proper referrals of the plan and codes to the county planning commission as required by state law. Finally, he argues he’s entitled to judgment under the doctrine of “special facts,” which bars a municipality from passing a new law directed at preventing a particular landowner’s use. If a property owner is entitled to an approval as a matter of right, the town cannot delay his application in order to change the zoning and nullify the application, Wagner said.

The supervisor said he supports the settlement. “Having some commercial development at the terminus of the expressway to my mind is not sprawl,” Walter said in a Nov. 17 phone interview. He said he was concerned that it should be “limited to that.” On Thursday he questioned Wagner about whether the Calverton Manor case could be distinguished from other currently pending cases he’s brought on behalf of other clients that effectively make the same claims.

Wagner said the Calverton Manor case is different because it’s the only one where he property owner had a completed, fully compliant site plan application pending that was purposely stalled by the town.

Civic groups have opposed the settlement, asking the town board to proceed instead with the litigation. They argue that if the developer’s case was so strong, the lawsuits would not have lingered unprosecuted for seven or eight years. 

“Have the guts to say we’ll stand behind the master plan,” Calverton Civic Association president Rex Farr told the board Nov. 7.

“You wait it out till you get the right board,” said Riverhead Neighborhood Preservation Coalition president Dominique Mendez Friday. “You talk, you donate, you wait till you have the right five people,” she said. “That’s what they did and it worked.”

Photo captions: (Top) The property at the corner of Manor Road and Route 25 in Calverton slated for a “campus-style” mixed use development of retail space and 40 apartments. (Middle) John Wagner, attorney represengint developer Calverton Manor LLC. (Bottom) Calverton Manor principal Charles Mancini. Both appeared at the town board work session Nov. 29.