With clock ticking on contract deadline, fate of EPCAL subdivision rests with N.Y. State DEC

Riverhead Town has an important deadline coming up: the contract of sale with Calverton Aviation and Technology requires the town to obtain final approval for an eight-lot subdivision of the EPCAL site and file the subdivision map in the county clerk’s office by mid-May. That’s one year from the date the purchaser gave the town its “notice to proceed” to closing, ending its “due diligence” period and finalizing the contract.

If the town fails to meet that deadline, the contract says either party can terminate the $40 million deal.

CAT gave the town notice to proceed by letter sent May 15, 2019. The Riverhead Community Development Agency, which holds title to the property, gained preliminary approval from the Riverhead Town Planning Board June 20. Final approval by the planning board is contingent on the town obtaining subdivision approval by the Suffolk County Department of Health Services and the New York State Department of Environmental Conservation.

And that’s the rub.

Riverhead needs to get the DEC’s approval of a Wild, Scenic and Recreational Rivers System permit for the subdivision because a portion of the EPCAL site lies within the Peconic River corridor. The town filed an application for the permit with the DEC on Sept. 3, 2019.

Two weeks later, the DEC, by letter dated Sept. 17, notified the town that it considered the application incomplete. The Notice of Incomplete Application is a hard stop — the DEC will not process the town’s application until it deems the town’s application “complete.”

Read Notice of Incomplete Application below.

The DEC said in the Sept. 17 notice that “a number of the required components and informational details” prescribed by the Wild, Scenic and Recreational Rivers Act regulations were missing from the town’s application.

The DEC wrote “it is clearly essential” that the town “provide a detailed narrative and site plans describing the planned use of the subject property once the land has been subdivided as proposed.”

The agency said the town must provide specific details of the proposed development so that the impacts of the development to threatened or endangered species on the site. That kind of assessment must be done before the property is divided and sold, the DEC said. Delaying environmental review until after the subdivision is complete would constitute “segmentation,” of review, which the law prohibits.

The DEC also said the town must update its previously prepared Comprehensive Habitat Protection Plan “in light of the new development proposal” and to “reflect the current status of the ecological communities of concern” at the site.

“Once the planned use of the subject property has been described in sufficient detail, the department (DEC) will determine whether a Part 182 Incidental Take permit will also be required for this action,” the notice stated.

But details of the purchasers intended development are not yet available.

The town’s argument is that it is not building any infrastructure — it is simply drawing lines on a map. When the land is sold, the purchaser will have to comply with DEC regulations for wildlife and habitat protection and further environmental review.

Former supervisor Laura Jens-Smith said today she, along with special counsel Frank Isler and deputy town attorney Ann Marie Prudenti met with DEC officials in October to discuss the Notice of Incomplete Application.

Those discussions included the town doing some additional research and documentation, according to town officials.

The town has not yet made any formal response to the Notice of Incomplete Application, according to documents provided to RiverheadLOCAL by the DEC and the Town of Riverhead in response to a Freedom of Information Law request.

Discussions with the DEC are continuing, Supervisor Yvette Aguiar said, expressing optimism that the issues can be worked out.

Aguiar said she is committed to ensuring that the environmentally sensitive areas of the site are protected from development.

The town is in contract to sell three of the proposed lots, totaling 1,643.8 acres, including the site’s two runways, to Calverton Aviation and Technology, a limited liability company owned by Triple Five Ventures and Luminati Aerospace.

The town will retain the five lots not being sold to Calverton Aviation and Technology for public purposes, including pine barrens core preservation, a municipal park and potential construction of an emergency services facility.

The federal government deeded the former Navy site to the Riverhead Community Development Agency in 1998. The town sold the 491-acre “industrial core” of the site to developer Jan Burman for $17 million in 2001, but it retained the undeveloped more than 2,100 acres surrounding the land sold to Burman.