The Riverhead Town Board remains divided on whether to impose a moratorium on industrial development in Calverton and is considering holding public hearings for two different versions of a six-month long moratorium pending further analysis on the future of the hamlet’s development.
During the work session on Thursday, Town Board members agreed to vote to hold hearings for two moratorium laws. One would be a blanket pause on all industrial development in the area, as supported by council members Tim Hubbard and Frank Beyrodt, with an option to renew the moratorium as the future of the hamlet is studied by the comprehensive plan.
The other would include exemptions for certain projects, although which projects may be exempt — and whether the exemptions would be both effective and protect the town legally — has yet to be determined. This version was supported by Council Member Bob Kern, who said the town should exempt projects and uses that won’t have traffic impacts, to mitigate a moratorium’s potential to halt economic development in the town. Supervisor Yvette Aguiar also appeared to favor a moratorium with some sort of exemptions.
The decision comes after almost two years of residents and civic groups urging the board to pause industrial development to finish the comprehensive plan update and decide if and how to change its zoning the town’s zoning code in areas of the hamlet. There are currently 11 applications for different projects in industrial districts in Calverton, including development projects like large-scale “high cube” warehousing and distribution centers totaling more than 3.3 million square feet.
The Town Board started to seriously discuss the matter during work sessions after the planning board discussed and passed a resolution recommending a blanket moratorium be implemented. A year-long moratorium on building solar energy production facilities, which “grandfathered” applications already being processed by the town planning department, was passed by the board in October 2021 and then extended for another year last month, since the comprehensive plan update is in progress.
Hubbard began the discussion by saying he supports a year-long, blanket moratorium on projects in industrial zoning districts A, B and C in Calverton. The moratorium would not include development in the Planned Industrial Park district, the zoning that applies to the “industrial core” of the Calverton Enterprise Park, or the Planned Development district, adopted in 2016 to govern development in the remaining vacant acreage in EPCAL.
“We as a town have been inundated with numerous applications for warehouse-type buildings — the majority of them are warehouse-type buildings,” Hubbard said. “And due to the fact that we’ve been overwhelmed with so many applications, I happen to agree with the planning board that we need to pump the brakes here,” he said. “And we’re paying hundreds of thousands of dollars for our comp plan, which is just about to get started. And I favor letting the comp plan help us decide and help us guide the path of Riverhead for the next 20 years.”
The Town Board started the process of updating its 2003 comprehensive plan in 2020. Progress on the plan has stalled the last two years, culminating in the firing of the consultants leading the plan, AKRF, in July. After a search led by Building and Planning Administrator Jefferson Murphree, the board agreed in early October to hire BFJ Planning to finish the update, although a contract with the firm has yet to be authorized by the board. BJF representatives estimated the plan would take roughly 14 months to complete.
“And I favor letting the comp plan do its job and assist us in getting this right. If we don’t get it right and we allow some of these warehouses — huge, huge buildings — the landscape will forever be changed in the Calverton area,” Hubbard said. “And we’ve heard from our residents time and time again, the past three meetings. We’ve had a full house of residents that are telling us they don’t want this.”
Council Member Ken Rothwell asked why the town would implement a year-long moratorium when the comprehensive plan is estimated to take roughly 14 months to complete. Hubbard said the new planning consultants will prioritize Calverton in their analysis for the comprehensive plan update. The board can renew the moratorium if necessary, he said.
Council Member Frank Beyrodt said he prefers a six-month moratorium that can be renewed for six more months as many times as needed. Hubbard said that if a shorter moratorium is necessary to gain the rest of the board’s support, he would support it.
“My only concern is that this is economic development, ultimately, and if we can identify through the comp plan, which is our hope, more quickly than 14 months, then we should move ahead on it,” Beyrodt said.
Aguiar said she would support a “moratorium on the saturation, the amount of projects that are covered. However, I think we should look at some of these projects independently and possibly create some type of exemptions,” she said.
At a previous work session on Oct. 27, Town Attorney Erik Howard and Building said the town could risk litigation with developers if it exempts certain projects with a moratorium and not others, and urged the board to be cautious of implementing any exemptions.
Howard also advised the board previously that it would be on solid legal ground to impose a moratorium that halts progress on all industrial projects in Calverton, even those already under review, since none of the projects would be vested under New York law.
For a property owner to be vested, a property owner would have to have undertaken “substantial construction and made substantial expenditures prior to the effective date” of the newly enacted zoning restrictions, Howard told the board Thursday.
Aguiar rejected Howard’s assessment of the law surrounding moratoriums and vested projects expressed in the previous work session discussion. “I know that we talked about vested; anything can be considered vested,” she said. “I know that you stated it has to have a site plan — I’m sorry, I checked with other entities and attorneys and people in public office and they said we can decide what we want.”
“With whom did you check?” Howard asked.
Aguiar did not answer Howard and deflected: “It’s not a matter of — we know that you support it,” she said, appearing to refer to the moratorium. “If I consult with an attorney, I don’t have…”
“I gave you my advice based on the case law and supplementary material,” Howard said.
“We’re not disagreeing, by any means,” Aguiar said. “I just want to say that — to have a blanket on everything that might take two years to complete. I think you should look at some of these projects and research them, look at them.”
“That’s not a legal analysis,” Howard said.
Howard advised the board that if a moratorium was imposed for six months, the town would have to conduct another public hearing to consider another local law extending the moratorium four-and-a-half to five months after the moratorium was first imposed.
“So my concern with that would be, does it give our consultants enough time to give us direction once they come once they come into town and start doing work on updating the plan?” Howard said.
Aguiar responded that the moratorium could result in the town losing “the creation of jobs and economic development that affect our tax base.”
“And at the same time, some of these projects…they’re not going to draw children to our schools,” she added.
“If we were to look at it, I agree with the moratorium, but I think that the projects that are in process, that we should look at them closely, see if they are considered what everybody calls ‘vested.’ Some say that it has to have a site plan to be vested,” Aguiar said, ignoring the town attorney’s legal advice. “I think anytime that we accept a project when we’re doing a comprehensive plan may make it difficult for us — and again everybody says ‘don’t worry about getting sued’ — we accept the project and we have a comprehensive plan already in progress.”
Kern said he would “not accept a blanket moratorium on industrial land.”
“That means we are going to ignore any projects that may be benign, that may not have traffic effects, etc, etc,” he said, expressing support for a six-month long moratorium, with exemptions.
He also raised concerns about the moratorium halting economic development and that putting a moratorium on industrial development would be “shooting the taxpayers in the foot by ignoring the potential for taxes.”
Kern asked for a resolution to be prepared with exemptions in place. Howard repeated his warning and said the board needs to have a “very clearly articulated rationale” for the exemptions, or it would invite litigation from developers not exempted.
“I’m not necessarily referring to the progression of the project,” Kern said. He used battery storage facilities — a use currently not allowed by the Riverhead Town zoning code — as an example of one he said was “benign,” due to having no traffic impacts. He asked Howard if he could provide advice on how the board can legally exempt those kinds of projects.
Aguiar said that she supports not doing a blanket moratorium and instead stopping project applications — as the Town Board did with its solar moratorium. She said Kern “brought up some really interesting points.”
Hubbard reiterated his support for a full moratorium without exemptions. “I prefer to go by the letter of the law. You’re either vested, or you’re not,” he said.
Hubbard asked for a resolution setting a public hearing on a six-month blanket moratorium on industrial development, while Kern asked for a resolution for a moratorium with as-yet undetermined exemptions.
Howard recommended that the board either adopt a blanket moratorium for a six-month period or a moratorium with exemptions for a longer period.
“You have the six-month moratorium, which is a relatively short period of time, does it make sense to clutter that with exemptions? And then how long does it take for an application to come in and for us to make a determination as to whether it qualifies for an exemption?” Howard said.
“I think that if it’s going to be six months, I think including everything is reasonable. I think those two things accommodate each other very well,” he said. “If you were going to go longer on the moratorium, I would be more inclined to suggest or recommend certain exemptions for benign uses — whatever those are — because that would be a separate determination that you’d have to research and come up with something.”
Rothwell did not express an opinion on whether he would support either version of a moratorium. He asked whether any of the projects currently applying for approvals will be vested in six months.
“No,” Murphree said.
Rothwell asked why the board would implement a moratorium for six months if the projects would not yet be vested.
Murphree responded: ”One risk, and it would be at their [the developer’s] risk — and again, I’m not speaking as a lawyer — is that they would have to proceed, invest a large amount of money in the DEIS process or the site plan review, and there are more than one of these products that probably would get site plan approval by the end of next year. They’re running that risk that in 12 months, 14 months, we’re gonna change the zoning on them, and their project is no longer viable,” he said.
“But that can happen anyway with the comprehensive plan,” Rothwell said.
“So, the moratorium signals to anybody considering that area for development. It puts them on notice that zoning may change,” Howard said.
“I think that discussion alone and a comprehensive plan in progress alone sends that message to them,” Rothwell said.
“And I guarantee you that if we don’t do the moratorium there will be a mad rush for applicants to come to the planning board, the floodgates will open, and we’re gonna get a plethora of push by applicants to get their applications approved,” Murphree said.
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