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Solar power company withdraws lawsuit over proposed EPCAL land sale

Attorney Jason Stern of the Weber Law Group announces on Jan. 17 the desire of sPower to bid on the EPCAL site. Photo: Denise Civiletti

The solar energy company that sued to block the pending sale of EPCAL has withdrawn its action.

Attorneys for sPower notified the court yesterday that their client had “voluntarily discontinued” the action and withdrew its motion fot a preliminary injunction to stop a sale.

But that doesn’t mean sPower is no longer interested in buying the site.

It’s just that the defendants conceded what the plaintiff sought, according to sPower’s attorney today: the April 2017 letter of intent between Luminati and the Town of Riverhead Community Development Agency is moot.

“We are pleased that Luminati and the defendants conceded that the LOI is no longer valid,” sPower attorney Jason Stern of the Weber Law Group said today in a statement.

“We believe the CDA is in a postion to evaluate a better proposal and make their decision,” Stern said.

According to Stern, the Utah-based power company wants to make Riverhead Town a better offer than the pending $40 million bid for the site. At the Jan. 17 town board meeting, Stern publicly informed the town board his client wanted to make a more attractive offer. According to the lawsuit sPower subsequently filed, the power company had attempted to submit an offer to the town as early as October 2017.

But the town, citing an exclusivity clause in its letter of intent with Luminati, maintained that it could not entertain any other offers for the property unless and until it first ended the deal with the proposed purchaser, Calverton Aviation and Technology LLC.

The town board on Dec. 19, 2017 “accepted” a proposed contract with Calverton Aviation and Technology LLC, which is owned by Luminati Aerospace LLC and Triple Five Realty-I LLC. The contract is subject to the town’s determination that Calverton Aviation and Technology is a “qualified and eligible sponsor” for purposes of the state urban renewal law. A hearing on whether Calverton Aviation and Technology is a “qualified and eligible sponsor” is scheduled to take place on Tuesday, Feb. 27 at 7 p.m.

sPower challenged the continuing obligation of the town under the letter of intent, because the letter of intent, by its terms, obligated the town only to sell to Luminati Aerospace LLC or a new company wholly owned by Luminati Aerospace LLC. Calverton Aviation and Technology is not wholly owned by Luminati Aerospace, sPower argued, so the letter of intent is no longer binding on the town and the town should entertain other offers.

According to the complaint filed in State Supreme Court, sPower’s attorneys made that argument to the town’s lawyers prior to the town board voting to accept the contract with Calverton Aviation and Technology on Dec. 19. But counsel to the town responded that the letter of intent remained in full force and effect, saying, according to the complaint, “We have advised the Town to strictly adhere to the terms of the exclusivity provision of the letter of intent to avoid the possibility of litigation by Luminati under the LOI.”

In a memorandum of law filed Feb. 15, the attorney for defendants Calverton Aviation and Technology, Luminati Aerospace and Triple Five Realty-I, states that “the LOI [letter of intent] has at this point been superseded by a definitive agreement which has been in substance approved by the CDA. Any challenge to the LOI is too little too late and an academic exercise doomed by laches.”

Stern said yesterday in his letter to the court that the lawsuit “primarily sought a declaration from the Court that the LOI is no longer in effect” and, with the concession by defendants that the LOI has been superseded, “plaintiffs’ need for judicial intervention at this time has been obviated.”

Denise Civiletti
Denise is a veteran local reporter and editor, an attorney and former Riverhead Town councilwoman. Her work has been recognized with numerous awards, including a “writer of the year” award from the N.Y. Press Association in 2015. She is a founder, owner and co-publisher of this website. Email Denise.