A State Supreme Court judge in Albany dealt a blow to Riverhead Town’s pursuit of the land subdivision it needs to close its $40 million land deal with Triple Five.
The court on Oct. 21 dismissed the town’s lawsuit against the State Department of Environmental Conservation filed earlier this year.
The suit sought to annul DEC’s July 2020 and November 2020 “Notice of Incomplete Application” in connection with the town’s application for DEC permits required to finalize the subdivision.
Justice James Ferreira ruled the town’s action was not “ripe” for review by the court because DEC’s “Notice of Incomplete Application” is not a final determination of the agency that can be appealed to a court.
In an eight-page decision, the court also held that the town “failed to exhaust administrative remedies before commencing this lawsuit,” as required by well-settled case law.
“The Court upon review finds that the challenged aspects of these notices are not final determinations that inflict an actual, concrete injury upon petitioners,” the judge wrote. “The Notices, by their terms, advise that the application is not complete and, among other things, request revisions and/or corrections to the Agency’s [the town’s] consistency analysis; they do not finally determine the Agency’s permit application.”
The town argued in its papers that, unless the Suffolk County Water Authority rescinds its objection to the Riverhead Water District serving the EPCAL site — a condition of DEC’s Notice of Incomplete Application — the town’s permit application will “will never be deemed complete” by DEC. The court rejected that claim, ruling that the town’s argument “mischaracterizes” the Notice.
“DEC did not require SCWA to withdraw its objection as a condition of its continued processing of the permit application,” the judge wrote.
Since the town’s analysis states “the SCWA doesn’t claim a right or desire to serve the property,” DEC told the town SCWA must formally rescind its objection. The water authority notified the town and DEC it would not rescind its objection.
The judge said there would be not “actual, concrete injury to the town” even if DEC had determined the Riverhead Water District cannot provide water to the EPCAL site, because “the SCWA is able to provide water to the property and the success of the [town’s] application does not depend on RWD being designated as the provider.”
Riverhead Town Attorney Robert Kozakiewicz said in a statement the town sees the judge’s decision “in a positive light” and is “encouraged” that the judge concluded DEC can review the town’s application without SCWA rescinding its objection to Riverhead Water District serving the site.
“We also find it significant that the Justice did not find it necessary to address the question of whether a resolution was needed or whether the executive session discussion sufficed,” Kozakiewicz wrote.
DEC, in its motion to dismiss the town’s action, in addition to arguing that the town did not exhaust its administrative remedies, as the judge ruled, also argued that the town “did not authorize the suit, and therefore did not have capacity to sue, before the limitations period ended.”
That argument turned on the town’s failure to pass a resolution authorizing outside counsel to bring the suit until two weeks after the suit was filed and that its subsequent authorization came after the statute of limitations had passed. Counsel filed the suit on March 17. The statute of limitations period ended on March 19. The town board didn’t approve a resolution authorizing the suit until April 6.
The court did not address that argument, ruling instead that the lawsuit, authorized or not, was premature.
Since the court held “the matter is not final,” Kozakiewicz said, the decision “does not rule out the Town and CDA proceeding at a later time should need arise.”
DEC did not respond to a request for comment by presstime.
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