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Nearly five months after the Riverhead Town Board authorized the supervisor to sign a $1.5 million community benefit agreement with Long Island Solar Generation, the agreement has not yet been signed by the developer.

The solar power company, a joint venture of NextEra Energy Resources and National Grid, is seeking approval for a 22.9 megawatt solar energy production facility on 198 acres off Edwards Avenue in Calverton.

The project needs two approvals from the Town of Riverhead: a special permit, which authorizes the use, and a site plan approval. The town board granted the special permit for the project on Dec. 1. The site plan application is still pending before the planning board.

The town board on Dec. 15 approved a community benefit agreement with L.I. Solar Generation, in which the company agreed to pay $1.5 million to be allocated by the town across six benefit categories: health and welfare; environmental protection; agriculture and open space protection; the provision of wireless internet for Riverhead public school students; and job promotion and training.

According to the terms of the agreement, the funds are to be paid in two installments: $750,000 upon final site plan approval and $750,000 upon issuance of a temporary certificate of occupancy.

It’s not clear why the agreement has not yet been signed. The town board has not discussed the status of the agreement.

Supervisor Yvette Aguiar said in a phone interview Tuesday morning she did not know and would look into it.

Town attorney Robert Kozakiewicz responded Tuesday afternoon to an April 19 Freedom of Information Law request for a copy of the signed agreement — the second FOIL request for the signed document made by RiverheadLOCAL — with an email stating that the town attorney’s office does not have a signed copy. The town clerk’s office previously responded that it does not have a signed copy.

“I hereby certify that the record which the Town of Riverhead would be custodian cannot be found after diligent search,” Kozakiewicz wrote.

Councilman Tim Hubbard said Monday he was unaware the agreement had not been signed. Yesterday, he said he had spoken to Kozakiewicz, who told him there had been a “miscommunication” between himself and L.I. Solar’s attorney, Stephen Losquadro.

“Steve thought it was going to be signed when everything was approved,” Hubbard said.

“Now he’s going to sign it. My understanding is we’ll get it soon,” the councilman said.

The terms of the agreement clearly contemplate that it would be signed in advance of the final approval — binding the developer to make the payments upon the approvals as stated.

Hubbard, who in December voted against granting a special permit for the project, was unfazed by the agreement not being signed.

“I’m fine with it,” he said. “It was just a miscommunication.”

L.I. Solar’s applications have had a less-than-ordinary course of review by Riverhead Town since they were filed in 2018.

The town board and the planning board were initially at odds over which board should have “lead agency” status under the State Environmental Quality Review Act (SEQRA) for reviewing the application.

The planning board had been lead agency for review of other commercial solar projects in Riverhead Town, which have all been located on industrially zoned land in Calverton, in the vicinity of a LIPA substation on Edwards Avenue. Lead agency status confers the ability to control the extent and nature of the review of a particular project. Both the planning board and town board sought lead agency over the L.I. Solar application in the spring of 2019. The planning board later backed down.

Though the action is classified as a “type I” action under SEQRA, which typically triggers a “positive declaration” requiring an environmental impact statement, a split town board in February 2020 determined L.I. Solar’s application would have no significant negative impacts and should receive a negative declaration.

The negative declaration was made on the recommendation of the planning department and over the strong objection of the town’s environmental consultant. The negative declaration had been sought for months by the applicant’s attorney and, according to former council member Jodi Giglio, was “ready” in October 2019.

In an Oct. 16, 2019 email from Losquadro to Giglio, which Giglio provided to RiverheadLOCAL, the attorney said a negative declaration was “essential” to the applicant. Losquadro said planning aide Greg Bergman “assures us that the Neg Dec is ready to be approved.”

Giglio, Hubbard and then-councilman James Wooten called a special meeting on Nov. 13, 2019 to approve the negative declaration, over the objection of former supervisor Laura Jens-Smith and Councilwoman Catherine Kent. But after it came to light during the special meeting, which grew contentious, that the completed full environmental assessment form — on which a determination of significance is based — had not yet been reviewed by the town board, Hubbard had the resolution tabled.

The negative declaration didn’t come again until Feb. 4, 2020. It had the support of three members of the town board: Giglio, Hubbard and newly elected Councilman Frank Beyrodt. Hubbard, though he said he did not support the project, said he felt comfortable with the level of review the application had been given. Aguiar and Kent both voted no.

Then the COVID-19 pandemic struck and a hearing on the special permit application wasn’t held until Oct. 20.

On Dec. 1, the town board voted 3-1 to grant a special permit, with Hubbard voting no and Kent abstaining. Aguiar, Giglio and Beyrodt voted to approve.

At that point, the broad terms of a $1.5 million community benefit agreement had been announced. But the agreement wasn’t put up for approval by the board until Dec. 15.

But the agreement before the board on Dec. 15 was not the same agreement that was reviewed by the board at its work session a week earlier — and it included a termination clause that was not in the agreement previously presented to and reviewed by the board at its Dec. 10 work session. The termination clause required the planning board to grant final site plan approval by Feb. 4 or L.I. Solar could terminate the agreement.

After Kent raised an objection to that provision and questioned why the agreement’s terms were different from the draft presented to the board at its work session the week before, Kozakiewicz said an earlier version of the agreement had somehow made its way into the packet of resolutions for the meeting. He told the board he could not explain how that had happened. He amended the agreement from the floor at the meeting to remove the termination clause and he also made corrections to the resolution authorizing the supervisor to sign the agreement. The board approved the resolution  — and the agreement — with those amendments.

Controversy over the application erupted in February this year after L.I. Solar Generation submitted site plan drawings to the planning board indicating that an electric substation on the site was twice the height of what the applicant had indicated on its environmental assessment form in 2018 — 22 feet rather than 11 feet. It also depicted 45-foot-tall “masts” accompanying the substation, while the EAF stated the tallest structure on the site would be 11 feet tall.

The planning board asked the town board — as lead agency — whether it intended to reconsider its negative declaration and special permit approval, in light of the new information, which affects the project’s visual impacts. Three members of the board — Aguiar, Beyrodt and Ken Rothwell — subsequently signed a letter to the planning board on March 30 stating that the new information would not have changed the negative declaration decision.

The planning board on April 15 denied preliminary approval of L.I. Solar’s site plan, after it asked the applicant to reconfigure the site plan to set the substation installation further back from Edwards Avenue, to limit the visual impacts of the electric substation on the site. The applicant’s representatives told the planning board it could not make the changes requested because it would require changing the entire site plan.

The applicant has since submitted revised site plan drawings with a greater setback from Edwards Avenue. A resolution granting preliminary approval to the revised site plan is on the planning board’s agenda tonight.

The resolution will make execution of the community benefit agreement a condition of a final approval, Planning Board Chairman Stanley Carey said yesterday.

It is not clear what effect, if any, the reconfiguration of the site plan has on the project’s prior environmental review determinations and approvals it has already received, including a wetlands permit and a Wild, Scenic and Recreational Rivers Act permit approved by the State Department of Environmental Conservation in April 2020.

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