The 41.7-acre site on the corner of Manor Road and Route 25 in Calverton, where a Smithtown developer sought to build a 170,000-square-foot retail/rental apartment complex. (File photo: Peter Blasl)

A developer’s plan to build a 170,000-square-foot retail and rental apartment complex on the corner of Manor Road and Route 25 in Calverton has hit a wall in State Supreme Court.

Calverton Manor’s 10-year-old legal challenge to the Riverhead master plan — a lawsuit the town came close to settling in 2012 — has been thrown out by a State Supreme Court Justice.

The developer of a mixed-use retail and residential project proposed for the vacant 41.7-acre site failed to meet the “heavy burden of proof” required to set aside the town’s master plan zoning, which severely restricted the density of allowed development on the site.

Rejecting the developer’s arguments that the town failed to follow proper procedure under the State Environmental Quality Review Act in adopting the comprehensive plan and zoning regulations based on the plan, Justice William Rebolini ruled that the 2003 comprehensive plan “is a legal, constitutional and valid exercise of the police and zoning powers of the Town Board of the Town of Riverhead.” The decision was signed July 15 and filed July 21.

In January 2012, the town was poised to sign off on a stipulation settling five separate cases brought by Calverton Manor LLC. The settlement agreement would have reinstated the pre-master plan zoning and required the town to dispense with full-blown environmental review for the project.

Supervisor Sean Walter initially endorsed the settlement deal. “We need to wrap this stuff up,” Walter said in a January 2012 interview. “The master plan was adopted seven years ago. It’s time to move on with these things,” he told RiverheadLOCAL.

Negotiations of the terms of the stipulation continued, even as Walter publicly expressed his worry that, if the matter were not settled, the town would lose and the master plan would be set aside by a court because of flaws in its adoption.

“This lawsuit has the potential to tear the master plan to shreds,” Walter said, advocating a settlement.

The town’s own planning consultant — Theresa Elkowitz, hired in 2011 to develop a plan for the Calverton Enterprise Park — was Calverton Manor’s expert witness, who in a 36-page affidavit in support of the developer’s complaint/petition, cited “egregious deficiencies” in the town’s SEQRA documents and process — deficiencies which, she said, justify setting aside the entire comprehensive plan. Elkowitz in her affidavit — made prior to being hired by Riverhead Town — called the plan’s environmental impact analyses “self-serving” “propaganda.”

But the deal failed to garner and sustain support from a majority of town board members, despite four members saying they supported a settlement after a public meeting with Calverton Manor principal Charles Mancini and his attorney in November 2012. Councilman James Wooten was the lone holdout, though Councilwoman Jodi Giglio said her support was conditioned upon the developer presenting documentation of his claim that the Riverhead town attorney wrote a letter stating that the application would be approved prior to the adoption of the master plan — a statement made by the developer’s attorney at the Nov. 29, 2012 work session. Mancini’s attorney, John Wagner, later said he was mistaken in that statement.

Civic groups rallied against the proposed settlement and demanded the town proceed with the litigation.

No settlement agreement was forthcoming and the litigation remained open until decided by the court this month.

Wagner could not be reached for comment on the decision and whether the developer would pursue an appeal. 

Under the zoning regulations implementing the master plan the Calverton Manor site is zoned Rural Corridor in part and Agricultural Protection Zone in part.

“I’m thrilled that the court upheld the town’s right to enforce its own zoning,” said Riverhead Neighborhood Preservation Coalition president Dominique Mendez, who led the charge against the proposed settlement.

“It’s a critical decision because of the potential for this to not only cause overdevelopment on this parcel but on other parcels where developers have with similar lawsuits pending,” Mendez said.

“We felt very strongly that the town should not settle this case and roll back the zoning to what it was before the master plan,” Mendez said. Civic group members lobbied hard against the settlement, she said, and they got their message across to board members

“But with all litigation, you’re always taking a risk. This is great news. It’s a happy day for the community.

Calverton Manor LLC v. Town of Riverhead decision: July 15, 2014

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Denise is a veteran local reporter, editor, attorney and former Riverhead Town councilwoman. Her work has been recognized with numerous awards, including investigative reporting and writer of the year awards from the N.Y. Press Association. She is a founder, owner and co-publisher of this website.Email Denise.