State’s high court rejects challenge to Riverhead’s 2003 master plan — but Calverton Manor’s quest is not yet ended

A Hauppauge-based developer has exhausted its legal recourse in a 16-year challenge to Riverhead’s 2003 master plan.

The state’s highest court has declined to hear Calverton Manor’s appeal of a lower court decision dismissing the developer’s challenge to the master plan.

But the developer’s quest to restore its rights under pre-master plan zoning is not yet ended. There are still three other actions pending on the property at the northwest corner of Middle Country Road in Calverton.

Two suits challenge the adoption of Rural Corridor, Agricultural Protection Zone and Transfer of Development Rights codes. The third, which would compel the town to process the developer’s 2003 application, has been stayed by the court pending disposition of the other actions.

The actions challenging the Rural Corridor and APZ codes remain on the trial court’s calendar for a decision on the developer’s claim that the town acted in bad faith in processing its application.

Prior to the implementation of the master plan, Calverton Manor proposed a complex of seven buildings totaling 152,275 square feet of retail uses — including a 125,000-square-foot “big box” store — on 41 vacant acres then zoned Business C-Rural, Agriculture A and Residence A. The Business C-Rural zone allowed the development of “campus style” commercial uses.

Calverton Manor’s commercial site plan application, filed in 2001, was pending when the town board adopted the master plan in 2003 and new zoning codes in 2004 and 2005, the culmination of a planning process begun in 1998.

The trial court in 2014 upheld the master plan and the zoning codes. The Appellate Division in April 2018 affirmed three of the lower court’s decisions — upholding the master plan and the re-zoning of the site. But it annulled a 2005 town board resolution implementing the transfer of development rights program, ruling that the town failed to give proper notice of the measure to the Suffolk County Planning Commission as required by state law. The town has since re-adopted the TDR legislation to correct the error.

But the “bad faith” claim remains unresolved. Calverton Manor claims town officials intentionally delayed review of a site plan application completed two months before the adoption of the master plan in November 2003. The court noted that the record on this question contains “inconsistencies.”

If the court determines in a trial that the town acted in bad faith to delay processing Calverton Manor’s application — in order to finalize and adopt the master plan —  the court could rule that “special facts” allow it to apply the law in effect when a landowner’s application was made, rather than the law in effect at the time when the court renders its decision.

The lawsuits remains on the trial court’s conference calendar, with a virtual appearance scheduled for Thursday before State Supreme Court Justice George Nolan — the eighth judge assigned to the cases since 2004.

The Town Board on June 16 retained the law firm of Siegel and Sitler of Hauppauge to defend the two remaining actions. The town attorney’s office had most recently been the attorney of record for the town, but the Riverhead firm of Twomey, Latham, Shea, Kelley, Dubin & Quartararo previously represented the town and was the law firm of record in the proceedings through the appeals to the appellate division, according to court records.

Town officials were 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. The deal thereafter stalled, as civic groups came out in opposition, urging the town board to defend the town’s zoning in court.

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 to the Appellate Division, which in April 2018 affirmed the trial court’s decisions. But the Appellate Division remanded the two zoning code cases to the trial court to determine the “bad faith” issue.

In February 2019, Calverton Manor gained approval of a three-lot minor subdivision of the site, creating an 11-acre lot in the RLC zone, and two lots in the APZ zone, one 6.7 acres and the other 17.8 acres. The company has since sold land within the Agricultural Protection Zone to a lavender grower.

Last year, Calverton Manor member Vincent DiCanio presented a revised plan for Calverton Manor’s remaining property at the site: a 22,000-square-foot, 135-unit assisted living facility. The use would require the town board to change the zoning from Rural Corridor to Retirement Community. It would also require a town board special permit.

At a June 12, 2019 Calverton Civic Association meeting, DiCanio said Calverton Manor would pursue commercial development of the site if the assisted living plan doesn’t fly.

The Rural Corridor zoning use district allows for very limited commercial development as of right: agricultural production, antique stores, craft stores, nurseries, museums and libraries. Special permit uses are limited to professional offices, country inns and funeral homes — if within 1/4 mile of Hamlet Center of Village Center zoning use districts — bistros, cafes, bed-and-breakfast establishments, professional offices of attorneys, architects, medical doctors or dentists on property improved with a single-family dwelling when the zoning was adopted.