HK Ventures, the developer of a proposed 412,000-square-foot industrial park in Calverton, has sued the Riverhead Planning Board over a requirement that the State DOT must complete the reconstruction of the Edwards Avenue/Middle Country Road intersection before any town permits will be issued.
The requirement was incorporated into a document called a “findings statement,” which was adopted by the Planning Board on April 20. A findings statement is required by the State Environmental Quality Review Act for any application that is subject to full review in an environmental impact statement. It provides the legal basis for an agency’s decision on an action.
The adopted findings statement for the HK Ventures proposal states that the project will not have significant negative environmental impacts, as long as certain conditions are met. Among those conditions is the completion of the intersection reconstruction at Edwards Avenue.
The Planning Board knows of “significant congestion” existing at the intersection, according to the findings statement, and development of the HK Ventures project prior to the completion of intersection improvements would “further exacerbate the existing traffic congestion at the intersection” and will have negative impacts to levels of service at the intersection.
It was the only condition in the findings statement that drew stiff opposition from the applicant’s attorney, Keith Brown, who argued to the Planning Board that it is unfair to tie up his client’s project in the unpredictable work schedule of a “behemoth” state agency like the State DOT.
The board voted 3-2 to adopt the findings statement over Brown’s objections.
The lawsuit asks the court to annul the findings statement Planning Board’s decision as “arbitrary and capricious” because it “lacks any rational basis.” The suit claims the board ignored all of the traffic data presented in the developer’s studies and relied instead on “anecdotal experiences” of board members concerning intersection conditions.
The suit also seeks a judgment that the board’s actions resulted in a taking of property without “just compensation” in violation of the developer’s rights under the federal and state constitutions.
The condition regarding intersection improvement planned by the State DOT is an “insurmountable obstacle,” the developer argues in the petition to the court. The actions of the State DOT are beyond the developer’s control and place its land rights in limbo, being “held hostage” indefinitely waiting for the DOT to act, according to the lawsuit. The condition effectively places an “unlawful moratorium” on the project, the petition states.
The Planning Board has not yet made a decision on the HK Ventures application for site plan approval.
Riverhead Town Attorney Erik Howard said the lawsuit “seems premature,” but referred questions to the Planning Board’s legal counsel, Eileen Powers. Powers has not returned a call seeking comment.
HK Ventures, based in Great Neck, is seeking site plan approval for the development of a 30-acre property on the south side of Middle Country Road, just east of Fresh Pond Avenue, with eight buildings providing a total 412,629 square feet of of floor area.
The plaintiff/petitioner is represented by James Catterson of Pillsbury Winthrop Shaw Pittman LLP of New York City.
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