Riverhead’s 2003 master plan and key zoning codes aimed at protecting agricultural lands and preventing commercial sprawl have been upheld by a state appeals court.
In three separate decisions dated April 18, the Appellate Division panel upheld a July 2014 trial court decision in favor of the town, upholding the 2003 master plan and the Rural Corridor and Agricultural Preservation Zone codes.
In a fourth decision, the court annulled a 2005 town board resolution implementing the transfer of development rights program. The court ruled that the town failed to give proper notice of the measure to the Suffolk County Planning Commission as required by state law.
Overall, the decisions represent a major victory for the town’s land use plan, which sought to preserve agricultural land and prevent large-scale retail development outside the Route 58 corridor.
The TDR program will be re-adopted by the town board after full compliance with requirements for notice to the county planning commission, Riverhead Supervisor Laura Jens Smith said.
While both the trial court and the appellate court upheld the master plan and the adoption of the APZ and Rural Corridor zoning codes, neither court ruled on the plaintiff’s claim of bad faith by the town. Developer Calverton Manor argued that town officials intentionally delayed review of its site plan application before adopting the master plan in November 2003 and changing the zoning of its property on the corner of Manor and Middle Country roads in Calverton. The appellate court, noting that the record on this question contains “inconsistencies,” left the door open to a new lawsuit on that question. Calverton Manor attorney John Wagner of the Hauppauge law firm Certilman Balin did not return a phone call seeking comment.
Calverton Manor in 2004 brought three separate actions challenging the adoption of the master plan, the APZ code and the TDR code. It brought a fourth action in 2005 challenging the Rural Corridor code. The trial court rejected Calverton Manor’s arguments. In a seven-page decision signed July 15, 2014, State Supreme Court Justice William Rebolini ruled that the developer failed to meet the “heavy burden of proof” required to set aside the town’s master plan zoning. 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 judge wrote.
Town officials had been poised to settle the actions in 2012 in an agreement that would have reinstated the pre-master plan zoning and granted the developer the right to build a “campus style” retail shopping center and 40 rental apartments — and also dispense with full-blown environmental review. The pending settlement was first reported by RiverheadLOCAL on Jan. 20, 2012.
Former supervisor Sean Walter initially endorsed the settlement deal. “We need to wrap this stuff up,” Walter told RiverheadLOCAL on Jan. 20, 2012. “The master plan was adopted seven years ago. It’s time to move on with these things,” he said. The town needs to “spur some development to put people to work,” Walter said. “We can’t just sit on our hands and say no to everything.”
Three days later, Walter changed his position, saying that the proposed settlement agreement was not what he thought it was.
“I’m not having big box stores come down off Route 58,” Walter told RiverheadLOCAL on Jan. 23, 2012. “I’d rather litigate than deal with this.” He said he was willing to come to some settlement agreement with the developer, but he was not willing to revert the site’s zoning to what existed before the master plan.
As settlement talks continued, Walter publicly expressed his worries that, if the case was 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 warned.
A public settlement discussion in November 2012 with Calverton Manor principal Charles Mancini failed to produce an agreement, though a majority of the town board at the meeting initially favored settlement. After civic groups rallied against any deal, demanding that the town proceed with the litigation and defend its zoning code, town board support for a settlement evaporated.
In July 2014, the trial court denied the developer’s motions for summary judgment and upheld the master plan and zoning codes. The developer appealed that decision.
As that appeal was pending, Calverton Manor principal Vincent DiCanio pitched a new plan for the site: a 135-unit senior/assisted living residential facility. About 100 of those units would be independent living rental apartments for “active seniors,” DiCanio said to a meeting of the Greater Calverton Civic Association. After a less-than-enthusiastic reception by the civic group, the company did not press forward with the plan.
Lavender by the Bay, an East Marion lavender farm, is now in contract to buy 30 acres of the 41.7-acre site, according to Lavender by the Bay co-owner Chanan Rozenbaum. They have already begun to plant the acreage with lavender.
Before the master plan zoning was adopted, the site was zoned Business Country-Rural and Residence A and Agriculture A. Calverton Manor in 2001 filed a three-phase site plan. Phase one consisted of “campus style” retail development on about 10 acres of the Business CR-zoned portion of the property. Phases two and three would consist of further commercial development on the remaining Business CR-zoned property and a residential subdivision on the portion zoned Residential A and Agriculture A, which both allowed a development yield of one dwelling unit per two acres.
As-of-right development under the old zoning would allow commercial development of as much as 176,000-square-feet, the developer’s attorney John Wagner said in November 2012.
Pre-master plan zoning remains in place on another large parcel in Calverton under a stipulation of settlement with a different property owner. A 10-acre portion of the 51-acre site on the south side of Middle Country Road opposite Fresh Pond Avenue is going to be developed with a 19,000-square-foot Tractor Supply Co. store, plus three additional retail buildings totaling 17,450 square feet.
The property retained its pre-master plan zoning — old Business CR and old Industrial B — under a stipulation of settlement between the town and Calverton Industries that ended a years-long court battle over the company’s sand-mining operation.
The town is represented in the Calverton Manor litigation by the Riverhead law firm of Twomey, Latham, Shea, Kelley, Dubin & Quartararo.
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