Supervisor, lawyers submit response to DEC’s ‘notice of incomplete application’ on EPCAL subdivision, without review by board

While COVID-19 has derailed much of the regular business of government, Riverhead Town is still pursuing its subdivision of land at the Calverton Enterprise Park, as a big contract deadline looms about a month away.

The town’s special counsel last week submitted documents to the State DEC without town board members having an opportunity to review the submission. Board members say they still have not been given the chance to review what was submitted to the state agency.

Today, the town board held a conference call of more than an hour long to discuss the EPCAL subdivision application with special counsel Frank Isler.

No meeting notice was provided to the press or the public as required by the State Open Meetings Law. The governor’s executive order allowing meetings without public attendance does not dispense with public notice of meetings. Even “executive session” meetings — closed-door meetings allowed by the Open Meetings Law for certain subjects, including contract negotiations — require public notice beforehand.

The town needs to obtain final subdivision approval from the Riverhead Planning Board in order to sell the 1,644 acres that are the subject of its contract of sale with Calverton Aviation & Technology. The contract requires the town to file a final approved subdivision map 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.

While the town obtained preliminary subdivision approval from the planning board a month later, final approval requires the town to first obtain subdivision approval by the Suffolk County Department of Health Services and permits from State Department of Environmental Conservation.

The town’s application at the State DEC, filed on Sept. 3, is stalled. The DEC almost immediately issued a “notice of incomplete application,” seeking a lot of additional information from the town.

Riverhead submitted its response to the DEC last week, Supervisor Yvette Aguiar said in an interview.

The town on Tuesday denied RiverheadLOCAL’s Freedom of Information Law request for a copy of the response to the DEC.

According to deputy town attorney Daniel McCormick, the town’s response is “inter-agency materials” that are exempt from the disclosure requirements of the state Freedom of Information Law.

The denial is “in the interest of maintaining unfettered dialogue with the NYSDEC with the intent and goal of obtaining NYSDEC subdivision approval at EPCAL. The Town is also allowing for the possibility that a further amended response may be necessary in the event the NYSDEC makes further inquiry,” McCormick wrote in an email this week.

“Nobody’s trying to keep information from the public,” Aguiar said in a phone interview today. “It’s still in draft form, according to the deputy town attorney. It is therefore not FOIL-able,” she said. “I can’t speculate what the DEC is going to do with it.”

Members of the town board haven’t seen the response yet either, according to council members Jodi Giglio, Tim Hubbard and Catherine Kent.

“It was handled by the attorneys,” Hubbard said. He said he was comfortable with the town submitting a response without board review because “this was more just supplying information requested by the DEC that was missing from the original application.”

Kent said she requested that the materials be posted on the town website and a copy be put in the town clerk’s office for board members to read. She said she was told it was “premature to post the materials on the website, as they had not been accepted by the DEC and there could be additional changes required by the DEC.”

Giglio said the board and the public “should know what the town is proposing to the DEC.”

The DEC and the town have taken fundamentally different positions on the type and level of environmental review required at this point in the town’s application process, with the DEC requesting environmental review for the ultimate use of the property — something the town previously told the agency it could not provide because it is not yet known.

According to Riverhead Town’s previous submissions to the DEC, provided by the state agency in response to a Freedom of Information Law request, the town maintains that environmental review at this stage should properly be limited to review of the subdivision map alone.

Both Giglio and Kent said the town should obtain “updated financials” from the purchaser, since the pandemic crisis has wrecked the economy and could potentially impact the ability of the purchaser to perform.

Under state Urban Renewal Law, the town was required to determine that the purchaser was a “qualified and eligible sponsor” to buy and develop the site pursuant to the town’s urban renewal plan for the site.