October 15, 2019
Town Board of the
Town of Riverhead
200 Howell Avenue
Riverhead, NY 11901
Riverhead, NY 11901
Re: EPCAL
Subdivision and SEQRA
Dear Supervisor
Jens-Smith and Members of the Town Board:
The Greater Calverton
Civic Association (“GCCA”) joined by our neighboring Civics, are writing to
urge the Town Board to reconsider its contract of sale, subdivision and any
other agreements related to the EPCAL property.
We are opposed to the subdivision and sale at this time because of the
gross misrepresentations and lack of information that is known or required to
make an informed decision and balance the economic, social and environmental
considerations that are required to fund, approve or undertake any action
pursuant to the State Environmental Quality Review Act (SEQRA). We are writing to bring to light the
inconsistencies that are associated with the preliminary plat and how we feel the
Town is unresponsive to our collective concerns and therefore not representing
our interests as a community.
Since the Planning Board’s Public
Hearing of January 5, 2017, the CDA and Town Board have entered into an
Agreement of Sale with a private entity (i.e. Calverton Aviation and Technology
aka CAT), which “requires” amendment of the 50-Lot subdivision Map produced as
part of the GEIS to a proposed 8 Lot Major Subdivision Map. As part of this action CDA proposes to sell
proposed Lots 6, 7 and 8 totaling 1,643.8 acres of land; this includes habitat
of approximately 1,000 acres that was intended as protected public lands as
part of the original SEQRA assessment[1].
The initial GEIS was done in a generic way with many specifics left unknown.
Notwithstanding all the unresolved
environmental issues related to the initial 50-lot subdivision, this 8 lot
subdivision is now being undertaken without any rational projection for a scope
of development on the resulting lots so that the magnitude of individual
impacts as well as cumulative impacts is not made part of the review. This means that mitigation measures and
alternatives cannot be properly assessed before committing to the current
subdivision layout and subsequent sale. This is known as segmentation.
Segmentation:
Regulations under the SEQRA recognize
that “actions commonly consist of a set of activities or steps” (6 N.Y.C.R.R.
§617.3(g)). Therefore, “considering only
a part or segment of an action is contrary to the intent of SEQR.” 6
N.Y.C.R.R. §617.3(g)(1) SEQRA generally prohibits “segmentation,” which is
defined as “the division of the environmental review of an action such that
various activities or stages are addressed under this Part as though they were
independent, unrelated activities, needing individual determinations of
significance.”
The reason for this rule is that if a
proposal is broken into enough pieces, each piece may not seem significant,
although the impact from the sum of the pieces might be significant. Moreover,
determination of an initial application may be “practically determinative” of
later decision making. Accordingly, “environmental review of the entire
project is required before ‘any significant authorization is granted for a
specific proposal.[2]”
According to the NYSDEC SEQRA Handbook,
reviewing the "whole action" is an important principal in SEQR;
interrelated or phased decisions should not be made without consideration of
their consequences for the whole action, even if several agencies are involved
in such decisions. Each agency should consider the environmental impacts of the
entire action before approving, funding or undertaking any specific element of
the action (see subdivision 617.3(g) regarding
"Actions"). When trying to determine if
segmentation is occurring, agencies should consider the following factors. If
the answer to one or more of these questions is yes, an agency should be
concerned that segmentation is taking place.
•Purpose: Is there a common purpose or goal for each
segment?
• Time: Is there a
common reason for each segment being completed at or about the same time?
• Location: Is there a common geographic location
involved?
• Impacts: Do any
of the activities being considered for segmentation share a common impact that
may, if the activities are reviewed as one project, result in a potentially
significant adverse impact, even if the impacts of single activities are not
necessarily significant by themselves.
• Ownership: Are the different segments under the same or
common ownership or control?
• Common Plan: Is
a given segment a component of an identifiable overall plan? Will the initial
phase direct the development of subsequent phases or will it preclude or limit
the consideration of alternatives in subsequent phases?
• Utility: Can any
of the interrelated phases of various projects be considered functionally
dependent on each other?
•
Inducement: Does the approval of one phase or segment commit the agency to
approve other phases?
The most recent instances
of segmentation that have been determined by GCCA in the SEQRA Consistency
Review[3]
prepared by Jeffrey L. Seeman, CGCS/CEP/REM dated April 1, 2019 on behalf of
the Town are italicized in his
comments below:
·
Development at the EPCAL Property cannot
collectively demand more than 1,990,000 gpd (1,382 gpm) of potable water until additional well capacity is permitted
and developed.
·
Due to the environmental constraints on Lot # 8,
development may be difficult and one solution might be a transfer or assignment
of development rights to Lot # 6. However this not an issue that must be
resolved as part of this subdivision review process and would be subject to
review, if necessary, at the time specific development plans are submitted in
the future.
·
The Lead Agency’s Findings Statement stated, for
Lot # 47 – “Western Area to be preserved and managed in accordance with a
Habitat Protection Plan (to be approved by the NYSDEC) (276.3 acres),” However
it is noted that the previously submitted
HPP is not required for the 8-Lot Major Subdivision because there is no
proposed development for the 8-Lot plan.
Until a development scenario is submitted and evaluated, the need for a
HPP can be determined.
·
In its SEQRA Findings Statement, to avoid
complications, the Planning Board should acknowledge that there is currently no proposed development plan (or site plan) and thus
no yield can be determined or development transfer required during the
subdivision review process.
·
There are two additional parcels, shown on the
Subdivision Map as Navy “Parcel A” and Navy “Parcel B,” which are still owned
by the U.S. Navy and comprise approximately 200 acres. These
parcels are in the process of being remediated by the U.S. Navy. Upon completion of the remediation, and in
accordance with the U.S. Navy’s finding of suitability to transfer (FOST),
outlining the environmental suitability of a parcel for transfer to non-federal
agencies or to the public, the parcels will be transferred to the Town of
Riverhead Community Development Agency (CDA). These parcels will then be preserved as open
space and would be managed in accordance with the Habitat Protection Plan.
(Note: The Habitat Protection Plan (HPP)
is at this time, not required for this subdivision map because there is no
proposed development submitted with the revised map).
·
The Calverton Sewer District and Wastewater
Treatment Plant upgrades should include an evaluation of adding industrial
wastewater to the plant. It is
recommended the Planning Board request additional information regarding
industrial wastewater pre-treatment requirements, proposed wastewater discharge
standards, industrial wastewater pre-treatment monitoring program(s) and method
of enforcement. General protocols to address what occurs if pre-treated
industrial wastewater fails to meet the required standards, and actions taken by responsible parties (the
Calverton Sewer District and/or the industrial user) should be identified
during the subdivision review process.
·
It is recommended the revised subdivision map
include the location of the groundwater divide for the wastewater recharge area
comprised of 35.1 acres and identified as Lot # 4. The location of the groundwater divide and the directional flow of
groundwater together with a reference as to the source of the information
should be depicted on the 8-Lot Major Subdivision Map. The Riverhead Water
District maintains and operates drinking water wells in the vicinity north of
Fresh Pond Avenue (north of Lot # 4). It is recommended the Planning Board seek
additional information regarding
any water supply well head protection program(s) prepared for the EPCAL site,
to avoid potential adverse impacts from the wastewater recharge area.
·
The Town has gone to bid on the upgrade of the
sewer plant and will award during month of April and that the Town’s engineers, H2M shall have map and plan also completed
in April.
·
The
revised 8-Lot Major Subdivision creates large acre vacant lots without
directing where future development will occur within the subdivided parcels. Therefore the Planning Board’s Findings
Statement may be based on the nature of potential environmental impacts that
were fully identified and studied in the completed SEQRA process. Under
the amended 8-Lot Major Subdivision Map, site specific study will occur when
the owner of the large acre lots determines how it wishes to proceed with
development.
Cumulative impacts
must be assessed when actions are proposed to or will foreseeably take place
simultaneously or sequentially in a way that their combined impacts may be
significant. Considering the cumulative effects of related actions insures
against stratagems to avoid the required environmental review by breaking up a
proposed development into component parts which, individually, may not have
sufficient environmental significance.
All of the italicized components cited
above have the potential for cumulative impacts, yet they are purposely
segmented out of the review. It appears that the review of these critical
issues is being kicked down the road to some future time. This is unacceptable.
With the sale of
parcel dependent on the subdivision, it is understandable that the Town would
seek to defer controversy until the lands are no longer public; however, that
does not work for us- the public. As for
the Qualified & Eligible (Q&E) process and pending sale to CAT, we
understand that the State statute does not define what makes an applicant
qualified and eligible- this is left to the local Urban Renewal Agency, namely
the Town of Riverhead. The Rules and
Procedures state that the CDA shall ascertain whether the applicant is
qualified and eligible pursuant to Section 507(2) (c) of Article 15 of NYSGML
in accordance with the following criteria: the experience of the individual,
firm or corporation with development, construction, management and financing of
similar projects in size and scope to the proposed project and the
Demonstrated ability to finance the acquisition and development of a
specific proposed project.
It is inconceivable to
us that the Town does not have knowledge of the specific development plans that
CAT wishes to undertake as part of the totality of the action. Yet somehow the Town and Developer have
decided that 8 lots are preferable, another 1,000 acres is included into the
sale and the specifics regarding protected habitat areas are not indicated on
the amended subdivision map, as required in the SEQRA Findings. How could any of this be determined without
knowledge of a development scheme? We now know that a development concept created
by CAT was recently provided to the NYSDEC depicting over 10 million square feet of floor area along with use of the runways[4]. The SEQRA documentation cited above
repeatedly insists that there is no known development plan. Even if none was
provided to the Town, at no time does the Town make any attempt to consider the
recently enacted zoning, apply setbacks, building envelopes or parking
requirements, contemplate a rational development scenario on the buildable lots
or answer important infrastructure questions that are a pre-requisite to any
subdivision, let alone one of this magnitude and environmental significance. If a development concept can be articulated
to get preliminary feedback from NYSDEC, how is it that the Town cannot either
utilize that plan or insist that CAT create a conceptual development scenario
to assess related impacts to the build out of the subdivision? Are we really being asked to believe that
someone would pay $40 million dollars without any sense of what the development
yield would be?
It is the contention
of the GCCA and our neighboring Civics that the Planning Board has not properly
undertaken the requisite environmental review of the amended 8 lot subdivision
because the impacts of the potential development (build out) that can take
place once the plat is filed have not been considered as part of the total
action. In addition, we don’t think that the Planning Board should be the Lead Agency
on this amendment because this is segmenting the review into discrete parts. Contrary to the 50 lot subdivision plan,
where the theoretical development was considered in a very speculative/generic
way as something that would happen over multiple decades on lots owned by
various people, the contract of sale to a single entity (CAT) has created a
situation where they are more of a master developer who will be submitting a
coordinated development plan to the Town Board for special permits.
We can only conclude
that in the haste to sell off this
property, the Town is engaged in segmentation, which is a violation under SEQRA. In addition, the Town has not considered the
full extent of the proposed action in terms of whether the buyer is actually
able to finance and construct the “project”, since the Board by its own
admission in the review documents does not have any information or projections
as to what the actual development program is.
So again we question the conclusion that CAT and its subsidiaries or
associates are qualified and eligible, when there is no basis for determining
what the actual development program is in terms of its scope and magnitude, how
much it will cost to finance and whether they are capable.
Other questions that
the GCCA has related to this action:
·
How does the amount of square footage proposed
in the concept plan to NYSDEC or as equated to the overall 1,137,000 gpd of
flow apply to the sale of the property and the current real estate value vs.
the contracted sale price? How does the
difference in these numbers affect the residents and taxpayers of the Town? How does the inclusion of an additional 1,000
+/- acres of parcel area into the development scheme affect the overall yield?
If it increases the yield potential, why aren’t we being compensated for it?
·
Related
to the above, how is the Town able to include the 1,000 +/- acres into the sale
without the public’s knowledge or consent? What is the rationale for doing so?
Where is the SEQRA assessment of this component?
·
As described in Mr. Seeman’s consistency review,
if lot 8 is constrained with a limited building envelope, how do you assign any
yield potential to lot 6? If you are creating a buildable lot, this must be
assessed at the time of subdivision- not some later point.
·
What are the growth inducing impacts of
extending the sewer district and the potential to create additional burdens on
the Calverton community and Riverhead School District due to the amount of construction
and projected employment? How can the
Town assure the Calverton Civic that you have assessed the potential for additional
pressures for “supporting services” or additional multi-family development to
serve the workforce of EPCAL? How will this growth inducement not displace our community
character and farmland throughout the Town? What specific protections have you
put in place to ensure that these impacts are mitigated?
·
Was the revised Map & Plan completed? What
is the financial burden on the sewer district?
What is the outreach for adopting the map and plan- is it being done by
permissive referendum? What are the specific impacts of the extension of this
infrastructure? This alone is a subject for the Supplemental SEQRA review, especially
in light of the potential for growth inducement. When will this be done?
·
How did an additional 367.4 +/- acres of the
overall site change from a designated ‘preserved area’ to instead comprise ‘lawn/landscaping’
as part of the development plan? Restricting the amount of fertilizer dependent
vegetation to 15% does not change the fact that the habitat area will be re-graded/developed
and the species present will be displaced.
Where is the additional SEQRA assessment for this? How was the decision
to change the preserved area made in the absence of a conceptual development
plan?
·
How does the contamination of the NAVY parcels
affect the groundwater and what level of clean up is taking place, what is the
status and when will it be completed?
Does the developer share any burden for the clean up if the contaminants
present have migrated onto parcels that the Town currently owns? Are there
monitoring wells currently on any of the parcels designated for development? If
yes, who is assessing the data? If no, why not?
·
What is the plan to address the wastewater in
terms of the groundwater divide? What
additional information and alternatives has the Planning Board sought since the
April 1, 2019 recommendation was made?
·
What is
the overall scope and plan for the well capacity and potable water demand? How
does this affect nearby wetlands, the water table, the provision of water
supply to area residents and the likelihood for salt water intrusion? At what point in the build out (equate sq.
footage/building area to projected demand based on likely uses) will the
current capacity be reached?
It is clear to us that most of the questions regarding the significant
environmental impacts remain unanswered since the initial subdivision, the April
1, 2019 ‘consistency review’ that just took place for the preliminary plat does
not take the requisite ‘hard look’, does not uphold the Findings Statement and
defers review of many serious issues to a later date. Today we are no closer to any real information
related to the development plan, although
we know there is one.
Ignoring these important questions leads us to
believe that both segmentation of the
totality of the action and willful ignorance toward cumulative impacts is being
demonstrated. Before the Planning
Board and Town Board can approve, fund or undertake this action (the final 8
lot subdivision and closing on the sale) pursuant to SEQRA, these questions and
significant impacts must be addressed as these actions are now being directly undertaken
to facilitate a development proposal by CAT.
We want to be able to understand the impacts of your actions and
therefore deserve the benefit of a specific and non-generic assessment before
you commit to the final parcel configuration for a development plan and sale of
public property. We are therefore notifying the Town, State, and County agencies that we
insist that a Supplemental SEQRA assessment be done to assess the cumulative
and specific impacts of development PRIOR TO any final plat approval
in order to avoid the very serious issue
of segmentation.
We believe that the
proper entity to review the impacts associated with the conceptual development
plan in a cumulative way is the Town Board as you were the Lead Agency in this
matter all along and should not defer to other Involved Agencies to carry out
your responsibilities under SEQRA. Although we are past the timeframe to
challenge the 8 lot preliminary plat decision, we are notifying you of these
issues so you can resolve them now. It
is unfair that our communities would have to bring a legal challenge and you
would spend our taxpayer dollars to fight against us rather than doing the
necessary review at this time.
The Calverton community
and our neighboring communities of Riverhead require answers to these questions
and an inclusive process. Please be
advised that we plan to hold every
elected and public official accountable. We will use every means and remedy available to us to challenge
unlawful decisions in order to determine our destiny and the fate of these
parcels as our communities are directly affected by what happens here. The
United States Government gave the Grumman property to our Town to use as we
(the people) see fit for economic development- not to create something that potentially
overburdens our community and causes significant environmental impacts. We want to understand what we are truly getting
in exchange for the sale of this property and how it will affect us before it
is too late. You are elected to
represent our interests and your fiduciary responsibility in this is to the
taxpayer and communities of Riverhead, not the developer.
Thank you in advance
for your serious attention,
Members of the Greater Calverton Civic
Association
Signed by:
________________________
Toqui
S. Terchun, President
JOINED
IN SIGNATURE BY:
________________________
Rex Farr, Past Calverton
Civic President
cc: Town of Riverhead Planning Board
Suffolk County Department of Health Services
Suffolk County Planning Commission c/o Sarah Lansdale
Suffolk County Legislator Al Krupski
New York State 2nd District Assemblyman Anthony
H. Palumbo
New York State Senator Kenneth P. Lavalle
NYS Department of Environmental Conservation c/o Carrie Meek
Gallagher
NYS Central Pine Barrens Joint Planning & Policy
Commission c/o John Pavacic
[1] See: “Notice of Completion and Notice of Public hearing for the Draft Supplemental Generic Environmental Impact Statement for the
comprehensive plan for the development (reuse & revitalization plan), including amendment to theTown of Riverhead Comprehensive Plan,
amendment to zoning code
and map, and subdivision of EPCAL property at Calverton” (dated
8/7/2014)
[2]
Kirk-Astor Drive Neighborhood
Ass’n. v. Town Board of Town of Pittsford, 106 A.D.2d 868, 869, 483 N.Y.S.2d
526, 528 (4th Dep’t 1984), app. dis’d 66 N.Y.2d 896, 498 N.Y.S.2d 791 (1985) [citing
Matter of Programming Systems v. New York State Urban Dev. Corp., 61 N.Y.2d
738, 739, 472 N.Y.S.2d 912]. In Sun Company, Inc. v. City of Syracuse
Industrial Development Agency, 209 A.D.2d 34, 625 N.Y.S.2d 371 (4th Dep’t
1995), app. dis’d 86 N.Y.2d 776, 631 N.Y.S.2d 603 (1995), the Appellate
Division, Fourth Department held that the SEQRA review of the Carousel Landing
Project could not be segmented from environmental review of the redevelopment
plans for the entire Onondaga Lakefront Area.
[3]See
full document at http://riverhead.municipalcms.com/files/documents/document957023328040519.pdf
[4] https://riverheadlocal.com/2019/06/30/riverheads-stewardship-of-the-epcal-site-spins-further-out-of-control/
