Town of Brookhaven

Town of Huntington, Northport-East Northport and Port Jeff school districts lose third-party lawsuits

Port Jefferson Superintendent Paul Casciano and Northport-East Northport Superintendent Robert Banzer. The two districts had legal challenges shot down by a judge Aug. 16 pertaining to property tax assessment claims made by LIPA. File photos

By Sara-Megan Walsh & Alex Petroski

A New York State Supreme Court judge has ruled Long Island Power Authority “made no promises” to the Town of Huntington, Northport-East Northport school district and Port Jefferson School District not to challenge the taxes levied on its power stations.

Judge Elizabeth Emerson dismissed the lawsuits brought forth by the Town of Huntington and the two school districts Aug. 16 which alleged LIPA broke a promise by seeking to reduce the power plant’s taxes by 90 percent.

“The court’s decision affirms our customers’ right to pay reasonable taxes on the power plants,” LIPA said in a statement from spokesman Sid Nathan. “We remain committed to reaching a fair settlement for both the local communities and our 1.1 million customers to put an unsustainable situation back on a sustainable path.”

Port Jefferson Power Station. File photo by Alex Petroski

The judge’s ruling is a big victory for LIPA as it allows tax certiorari cases to continue to trial, rather than being dismissed, and could have a widespread impact across Long Island for other municipalities with similar disputes against the utility.

“Obviously, we disagree with this decision and plan to appeal,” Northport Superintendent Robert Banzer wrote in a letter to district residents. “Please understand that Justice Emerson’s decision is not the end of our fight in this case.”

Port Jeff school district also responded to the development.

“While this decision is not the outcome the district was hoping for, we vow to continue to explore our options as we work to protect our school district’s financial future and the needs of our community,” the district said in part in a statement. “The district will work to keep the community apprised of any updates on the matter.”

In her 24-page decision, Emerson denied any notion that chapter 21, section 16 of the 1997 Power Supply Agreement signed by LIPA when it took over Long Island Lighting Company — which has been referred to as the 1997 Promise – was intended to benefit the school districts by preventing LIPA from challenging the tax-assessed value of its power plants.

Rather, she found it was to ensure other parties, including LILCO and GENCO, which owned the plants at the time, could not start initiating tax claims during the takeover process.

She also dismisses all claims that town governments or school districts were intended third-party beneficiaries of the contract.

“The Power Supply Agreement is clear and unambiguous and that it does not bestow any enforceable third-party-beneficiary rights on the plaintiff,” Emerson wrote.

The judge pointed to the PSA saying it “does not expressly name” either the town or school districts as a third-party beneficiaries.

“She applied contract law, not third-party beneficiary law,” said John Gross, the attorney representing Northport-East Northport school district. “That’s what we think she the mistake on.”

Gross said New York State law allows entities, like the school districts, to be recognized as third-party beneficiaries based on third-party conversations, letters, and promises. The school districts have filed thousands of pages of documents with the courts, according to Gross, that include official correspondence and records of conversations former LIPA chairman Richard Kessel had with school administrators and Huntington Town officials allegedly promising not to challenge the tax assessment of its power plants.

The judge ruled these “extra-contractual promises” made largely by Kessel “were gratuitious promises for which there was no consideration.” As such, the former chairman’s words “did not contractually bind LIPA.”

Gross said the school’s status as a third-party beneficiary “was wrongly decided.”

This recent decision could have large and profound impact not only on Huntington, Northport-East Northport and Port Jeff schools, but for all other municipal government and school districts that are LIPA’s power plants.

On Page 18 of her decision, Emerson wrote not only did the PSA contract not protect the Town of Huntington, Northport or Port Jeff school district taxpayers but “other similar situated school districts and municipalities.”

“This result was to a very large extent expected by the village, and that’s why the mayor and the board of trustees very early, initiated and drove settlement discussions with LIPA to resolve the issue,” Port Jefferson Village Attorney Brian Egan said.

The village board of trustees and Mayor Margot Garant in April passed a resolution approving “settlement concepts,” and the two sides are exchanging details of terms, expected to reach conclusion “at any time,” Egan said.

“When we’re a taxing jurisdiction and we’re going to subject ourselves to the back taxes on a longshot, that is not what we do with taxpayer dollars,” Garant said. “We have an obligation to not gamble, so to speak.”

“Please understand that Justice Emerson’s decision is not the end of our fight in this case.”

— Robert Banzer

Huntington town attorney Nick Ciappetta said the town plans to file an appeal of the judge’s decision.

“We believe there’s only one logical and legal way to interpret that provision,” he said. “That provision was there for the benefit of the taxpayers of Huntington.”

The town, Northport and Port Jefferson school districts will have 30 days to file an appeal once the decision is officially entered into court records, according to Ciappetta. He estimated an appeal of the decision could take 18 to 24 months.

“The decision does not affect the pending tax certiorari case between the Town of Huntington and LIPA scheduled for trial in December, nor do we expect it will impact the parties’ willingness to proceed with mediation,” Banzer wrote to the community.

Gross confirmed that Northport school district is still looking forward to sitting down for the first mediation session with the Town of Huntington, LIPA, National Grid  and third-party neutral attorney Marty Scheinman slated for Sept. 26.

Officials in Brookhaven’s Town Attorney’s office could not be immediately reached for comment, though the town has also said it is nearing a settlement in its case. Egan speculated settlements for municipalities attempting to resolve cases out of court might be held up by mediation in Northport and Huntington Town’s case.

This post was updated Aug. 17 to include a statement from Port Jefferson School District, and to attribute LIPA’s statement to Sid Nathan.

Brookhaven is looking to increase it's cyber security through a state grant, but the town is not saying how. Stock photo

The Town of Brookhaven is looking to beef up its cyber security.

At the Aug. 2 Brookhaven Town board meeting councilmembers voted unanimously to apply for a $50,000 grant under the New York State Division of Homeland Security and Emergency Services Cyber Security Grant Program. If the town attains the grant, Brookhaven will use town funds under specified cyber security initiatives and seek reimbursement through the grant.

The grant will make $500,000 available for any county, town or village in the state at a maximum of $50,000 per entity. Other municipalities in Suffolk County such as the Town of Smithtown are applying for the grant.

According to the state grant application, the money can be used for a number of items, including hiring a cyber security consultant, software packages for items such as firewalls and encryption, new equipment such as servers or hardware used against cyber threats, and for staff training involving cyber security awareness.

Jack Krieger, communications director for Brookhaven Town, said the town does not comment on current or future cyber security measures when asked what the money might be used for.

In June 2017, the Town of Brookhaven’s website, among 76 other municipalities, was successfully hacked by what was described as a “pro-ISIS group.” ISIS is referring to the Islamic State of Iraq and the Levant, the group that took over parts of Iraq and Syria in 2014 and is now being pushed back by U.S.-backed Iraqi forces and the Syrian army.

The group, Team System DZ, created a static webpage using the Town of Brookhaven servers, but it did not affect the official Brookhaven website. A link was set up through town servers to a static, look-alike webpage.

Deputy Town Supervisor Dan Panico (R-Manorville) said at the time they did not see any information extracted from the servers. The town’s website was taken down temporarily but was restored within a few days.

Much emphasis has been put on cyber security by government officials of late, as it was revealed that Russia had made efforts to hack into Democratic National Convention servers during the run-up to the 2016 presidential election, taking information which was later released via several outlets including WikiLeaks, an international whistleblower organization. U.S. intelligence officials have warned that Russia is already attempting to influence the 2018 midterm elections through multiple electronic means including phishing scams that target people’s passwords and by setting up fake accounts on social media, according to Bloomberg News recently.

Meanwhile, the Suffolk County Board of Elections is also keeping tight-lipped about cyber security measures as Long Island and the rest of the country heads toward a heated midterm election taking place Nov. 6.

“The board generally doesn’t comment on its security measures because we understand that doing so could aid nefarious individuals in their attempts to exploit our voting processes,” said Republican board of elections commissioner, Nick LaLota, when asked about the board’s preparedness to ward off security threats.

The site of McCarrick's Dairy in Rocky Point, which closed its doors in 2017, will become a 7-Eleven. Photo by Kyle Barr

The shuttered McCarrick’s Dairy, a fixture in Rocky Point for 71 years, might soon be bearing the green, white and orange colors of the ubiquitous 7-Eleven logo.

The Brookhaven Town planning board approved the plans for the new 7-Eleven at its July 30 meeting. The half-acre property, owned by Rocky Point based Dairy Farm LLC, at the northwest corner of North Country Road and Harding Street will be renovated to have 43 parking spots in front and behind the main building. Plans for the 3,800 square foot renovated structure are prohibited from including neon signage, and outdoor sales and storage in an effort to stay true to the residential nature of the area, according to recommendations by the planning board.

A number of residents view the new 7-Eleven as a major change from the old McCarrick’s Dairy, which they considered a small grocery store more so than a typical convenience store.

“A convenience store is something that is a grab-and-go,” Rocky Point resident Anita LoPiccolo said at the July 9 planning board meeting. “McCarrick’s was a family run, community supported business that encouraged community closeness.”

Charles Bevington, the president of the Rocky Point Civic Association, said he is concerned with how many convenience stores already existing in downtown Rocky Point. There are already two other 7-Elevens in the hamlet; one on the corner of Route 25A and Rocky Point Yaphank Road and another next to Westchester Drive.

“Rocky point is apparently drinking a lot of coffee,” Bevington said. “We will soon have 10 to 12 convenience stores in a matter of two miles.”

Kevin McCarrick, co-owner of McCarrick’s Dairy before it closed in 2017, said before they received an offer from 7-Eleven, they had been searching for another local business to take their place, but they could not find any potential buyers.

“We started out seeking those operators who had shops like ours, but unfortunately they are a dying off breed.”

— Kevin McCarrick

“We started out seeking those operators who had shops like ours, but unfortunately they are a dying off breed,” McCarrick said. “All kinds of stores sell all kinds of products now and it’s really diluting the product mix. It becomes very difficult to maintain margins.”

He said by not opening another shop similar to the old McCarrick’s, ultimately he was protecting the business of shops like Shop With Us in Shoreham and the Handy Pantry further down from McCarrick’s in Rocky Point.

“There is a difference between a 7-Eleven customer and a customer of those types of shops, and both those stores are doing better and will continue to do better with a 7-Eleven than even if we remained there,” McCarrick said. “It will probably do more business than our store used to do.”

Some residents were concerned about the safety and lighting at the location, citing the potential for crime and litter. McCarrick said the location already has two spotlights that light up the property as well as the adjoining residential park. The 7-Eleven will also have a 10- by 20-foot garbage enclosure and surrounding bushes and fences to prevent trash from blowing onto neighboring yards.

Some in the community are excited for the new 7-Eleven. Nancy Hoffman, a direct support professional at the Association for Habilitation and Residential Care Rocky Point residential group home facility located off Harding Street, said she and other workers at the home were looking forward to the opening of the new convenience store.

“We will be take some of the residents there, and it will just be more convenient,” Hoffman said.

McCarrick said they plan to start renovations on the store in about a month. Representatives from 7-Eleven said the location would be operated by corporate for an unspecified amount of time until they could find a person who would wish to franchise the store.

Brookhaven Town Supervisor Ed Romaine. File photo by Erika Karp

Although politicians in Brookhaven Town are not up for election this cycle, voters will be asked a question with long-term implications for town government in November.

Brookhaven Town board voted unanimously to establish a referendum on the ballot Nov. 6 asking town residents to weigh in on changes to terms in office for elected officials, specifically increasing terms from two years, as is currently the law, to four years for councilmembers, the supervisor and highway superintendent. The referendum will have a second component as part of the same yea or nay question: limiting officials to three terms in office. That component would impact the above positions, as well as town clerk and receiver of taxes. Both components will appear as part of a single proposition, according to Town Attorney Annette Eaderesto. Putting the issue up to a vote was established as a result of an Aug. 2 public hearing. If passed the law would go into effect for terms beginning Jan. 1, 2020.

“[The voters] have, in the past weighed in, and whatever they weighed in to is not being listened to now,” Supervisor Ed Romaine (R) said during the hearing. “Maybe that’s fine with them, maybe it’s not, but I would like to go back and ask them, ‘what do you think?’”

In 1993, residents voted to implement a limit of three, four-year terms on elected officials, though that law was no longer applicable following a 2002 public vote to establish council districts, as state law dictates councilmembers in towns with council districts serve two-year terms, according to Emily Pines, Romaine’s chief of staff and a former New York State Supreme Court justice, who spoke during the hearing.

Several members of the public commented in opposition of various aspects of the referendum, saying the two components should be separated to be voted on individually; there’s not enough time to untangle issues with the language of the law, like what to do with an individual who served as a councilperson for 12 years and then is elected to another position such as supervisor; and how to handle time already served by current members. Others cited shorter terms as fostering more accountability for elected representatives.

“I think it’s too complex to be one resolution,” said Jeff Kagan, a resident and representative from Affiliated Brookhaven Civic Organization. “I think you’re asking the voters to vote on somethings they like and somethings they may not like.”

Anthony Portesy, the Democrat candidate for town highway superintendent in 2017 and a private attorney, spoke against extending terms to four years, but said he would be in favor of three years because having to campaign every two years can be “arduous.”

“While I’m not opposed to the extension of terms per se, four-year terms is an eternity in politics, too long for hyperlocal town races,” he said. “We don’t want to create electoral feudalism in Brookhaven through the coercive powers of incumbency.”

Patchogue Village Mayor Paul Pontieri spoke in favor of going to four-year terms during the hearing about having to run for office every two years, saying it can get in the way of accomplishing goals set forth at the beginning of a term. Romaine and councilmembers Valerie Cartright (D-Port Jefferson Station), Jane Bonner (C-Rocky Point) and Kevin LaValle (R-Selden) each expressed similar sentiments when asked if they intend to support the idea in early July when the public hearing was set.

“You don’t have the constant churning in politics that can sometimes undermine the system,” Romaine said. “It allows for long-range planning and programs. It takes the politics out of local government.”

Eaderesto said the town’s law department will draft the wording as it will appear on the ballot in November and share it with the town board prior to submitting it to the Suffolk County Board of Elections by Oct. 1.

Brookhaven Town presented its vision for Port Jefferson Station between the train tracks and Route 347 at civic association meeting July 24. Photo by Alex Petroski

Port Jefferson Station’s future is still blurry, but the vision is beginning to come into focus.

Members of the Town of Brookhaven Planning Department were on hand at a Port Jefferson Station/Terryville Civic Association meeting July 24 to share a preliminary look and float recommendations for the revitalization of the area of Port Jeff Station between the train tracks and Route 347. Representatives of the department announced, as a result of examining both the 2008 Comsewogue Hamlet Comprehensive Plan and the 2014 Port Jefferson Station Commercial Hub Study, which were largely the product of community input in the form of mailed surveys, demand exists to create a walkable, downtown hub with buildings zoned for retail and/or restaurant use on the first floor and residential use on potentially up to a fourth floor.

The announcement also served to lay out a timeline for the next steps in the process, which will require the formation of a citizens advisory committee, the conducting of a blight study and drafting of an actual land use plan to be brought before the town as a final stage, among many others. Completion of the preliminary steps is expected to occur in 2020, at which point the town would need to approve zoning changes necessary to precede shovels entering the ground.

Town of Brookhaven, as part of its presentation July 24, laid out some of the important dates upcoming for its revitalization plans, most of which will take place in 2019. Graphic by TBR News Media.

“Patience is not a virtue, it’s a necessity for these kinds of matters,” town planning commissioner Tullio Bertoli said. “We did visioning. This is the implementation of that visioning into a full-blown land-use plan.”

The announced timeline and plans come as several violent crimes have garnered media attention, including a July incident in which a 27-year-old man from Selden was shot to death inside a billiards hall in upper Port, as well as what locals would likely characterize as an increase in delinquent activities perpetrated by the homeless population in the area.

“We want to clean the area up, this is the most efficient way right now to try to clean that area up,” civic association President Sal Pitti said during the meeting.

He and other officials in attendance stressed simply building and developing cannot be expected to alleviate all of the area’s ills.

“There are some issues that cannot be solved by building structures,” Bertoli said.

Still, Thomas Chawner, a senior planner with the town who conducted the presentation, said the community’s desire to improve public safety and decrease blight were taken into account in making the plans.

“There’s a need for better enforcement for derelict properties in the hub area,” he said. “Affordable housing — we heard loud and clear in both studies people are feeling that their children cannot afford housing. They don’t want their children to leave Long Island. They need affordable housing.”

Brookhaven Supervisor Ed Romaine (R) was also at the meeting and threw his support behind the proposal.

“I’m with the civic on this, because this community is a great community and really deserves all of our effort to make sure that it’s always going in the right direction, not the wrong direction,” he said.

A map identifying the areas set for revitalization and included in subsequent studies, taken from the July 24 presentation by the planning department.

Community members present at the meeting expressed both support and concerns relating to the presented possibilities for redevelopment. Some are worried about coordination between the interested parties — namely the community, the town’s planning department and the private developers — from the planning stage to the actual implementation stage. Others conveyed opposition to increased population density in the area and the possibility of more traffic. Those in support stressed that the combination of residential, retail and restaurant spaces would provide for the desired outcome — a vibrant, walkable downtown with feet on the streets, fostering an environment intolerant of the drug use and violence garnering the headlines in the area at present.

The plan, in addition to the physical building options, also laid out suggestions for aesthetic “streetscape” fixes that could also help to foster that desired environment, like crosswalks decorated with commissioned art and plantings hanging from light poles. Strategically placed pocket parks or passive green spaces, as well as a community center, were also listed as possible addendums to the larger plans.

Charlie Lefkowitz, who owns much of the real estate in the hub study area, said in a phone interview he has worked with the town in visioning improvement in the area and intends to continue to do so.

A blight study is expected to begin and be concluded by early 2019, which will trigger the next steps of the revitalization plan.

File photo

Town of Brookhaven is harnessing the power of the sun.

Tara McLaughlin, Brookhaven’s deputy commissioner of planning, announced at the July 12 board meeting the town had received the bronze designation from SolSmart, an organization funded by the U.S. Department of Energy Solar Energy Technologies Office, which helps municipalities across the country expand solar energy options and recognizes the ones that do so. Brookhaven applied for the designation in 2017, according to McLaughlin.

“As I am a competitive person always striving to achieve more, I am confident with small changes and installation of solar panels on several town buildings, next year we will at least attain the silver award,” she said.

The deputy commissioner said the town processed about 2,000 permits for solar power installation last year and expects to process at least that many in 2018.

“The world is changing, people are realizing, why not use the sun,” Supervisor Ed Romaine (R) said.

In addition, the town is planning to install solar panels at Town Hall, the Pennysaver Amphitheater and Brookhaven Calabro Airport. The Brookhaven Industrial Development Agency, a government department that selects projects to provide financial assistance in the form of tax reducing agreements, announced July 9 it had accepted applications for economic incentives for the airport and Town Hall installations, pledging to provide $4.6 million in assistance.

A rendering of the proposed Heatherwood rental units in South Setauket. Rendering from Heatherwood

The Town of Brookhaven is in the final stages of deciding whether to allow a controversial retirement community to be constructed. 

Commack-based Heatherwood Luxury Rentals has proposed plans to build on nearly 26 acres of its more than 70-acre golf course on the southeast corner of Arrowhead Lane and Route 347. It was put on the planning board’s decision calendar at its July 9 meeting, and now they have 62 days from July 9 to render a decision.

The property at the intersection of Arrowhead Lane and Route 347 is currently a golf course. Photo by Andrea Paldy

If approved, the company would construct Heatherwood Golf at Setauket, a 55 and over community with 200 rental housing units, 403 parking stalls and additional garages. Heatherwood also plans to redesign the golf course, reducing it from 18 holes to nine. The property falls in both the Comsewogue and Three Village school districts.

John Gobler, a 48-year homeowner in Heatherwood Village South in South Setauket, attended the July 9 meeting objecting to plans for the new development having only one entryway to exit and enter, which would dump traffic onto Arrowhead Lane. He said the intersection of Arrowhead Lane and Route 347 has been a problem for several years due to the number of cars exiting onto Arrowhead and the timing of lights at the corner, where he has witnessed only four or five cars being able to go through a green light.

He questioned a traffic engineering study by Stonefield Engineering & Design, LLC conducted June 13 of the traffic volume count of cars exiting Arrowhead to Route 347. He said the company found a total of 183 cars during 7 to 9 a.m. and 141 vehicles 4 to 7 p.m. Gobler said he sat at the intersection and monitored traffic for a 20-minute period, 8:55 to 9:15 a.m. three separate days when school wasn’t in session and counted exiting cars from Arrowhead. His average was 89 for the 20-minute intervals, which would be 266 cars during the morning rush hour. He said Stonefield’s count of 183 cars over a two-hour period would mean only 31 cars every 20 minutes.

Frank Filiciotto, a traffic consultant with Stonefield, said there are always spikes in traffic, which could account for Gobler’s observation. He also said the 183 and 141 numbers represent one-hour volumes within the periods of time specified and not the entire time specified. He said the company has been monitoring traffic in the area for four years. One observation of cars entering and exiting nearby Fairfield Knolls North by the company showed a daily total of 218 cars observed during 7 to 9 a.m., 2 to 4 p.m. and 4 to 7 p.m. Stonefield broke the figures down to 60 in the morning period, 80 from 2 to 4 p.m., and 78 during the evening period. The monitored development is 0.65 miles northeast of the proposed apartments and is also age restricted. The company prorated the numbers since Fairfield Knolls has 91 more units than what is proposed for Heatherwood. He said the amount of traffic was similar to what they originally projected and should not negatively impact the area.

“The overpacking of the site with housing, adjacent to a residential neighborhood, and built on an already highly trafficked Route 347 demonstrates poor planning.”

— Herb Mones

“This isn’t assumption,” Filiciotto said. “This isn’t opinions. This is fact. We went out, and we calculated the amount of traffic Fairfield North was generating during peak hours.”

In 2014, Councilman Dan Panico (R-Manorville) sponsored the resolution for a zone change for the property from A Residence 5, which allows one housing unit for every 5 acres, to Planned Retirement Community, which would allow a 55 and over community. On Dec. 16, 2014, the town board approved by a 4-3 vote. Councilwomen Valerie Cartright (D-Port Jefferson Station) and Connie Kepert (D-Middle Island) as well as Supervisor Ed Romaine (R) dissented. 

The town board placed conditions on its zone change approval, including requiring Heatherwood owner Doug Partrick to donate 40 acres of land to the Manorville Farm Protection Area, removing a billboard at the golf course and constructing a sidewalk on the east side of Arrowhead Lane. Panico’s office confirmed the town accepted the 40 acres of property in 2015 in lieu of the Pine Barrens Credit redemption required under the Planned Retirement Community code.

Development of the golf course has faced opposition from elected officials and local civic associations since it was first presented in 2014. Cartright remains opposed to the project as it stands, according to her legislative aide Jennifer Martin. 

Herb Mones, chair of the Three Village Civic Association’s land use committee, said the civic group opposed the initial zone change for the golf course, and he said many felt it was controversial due to the town board approving it over the objections of Cartright.

“The overpacking of the site with housing, adjacent to a residential neighborhood, and built on an already highly trafficked Route 347 demonstrates poor planning,” he said.

Sal Pitti, president of the Port Jefferson Station/Terryville Civic Association, said the group still stands opposed to the development.

“The community spoke in force back when the project was proposed, and they said we don’t want it,” Pitti said. “The aspect that bothered us the most for the acceptance of the project was that a donation of land went to another council district instead of ours.”

Brookhaven Supervisor Ed Romaine and the town board have taken steps that would allow the construction of a power plant in Yaphank, complicating the status of Port Jefferson's LIPA-run plant. File photos by Alex Petroski

It’s one step forward, two steps back for Caithness Energy, LLC in Brookhaven.

After securing a win in its efforts to advance the construction of a 600-megawatt power plant in Yaphank earlier this month, Caithness Energy LLC, an independent, privately held power producer informed by Brookhaven Town its special use permit for the site expired July 15.

The special use permit, initially approved in 2014,  granted Caithness permission to build a power plant on the site, according to Town Attorney Annette Eaderesto. It was granted for two years and  one-year extensions were approved twice, which is the limit under town law.

“We’re looking into it, but believe it has no bearing and we look forward to the next steps before the Planning Board,” Caithness President Ross Ain said in a statement.

The possibility that the permit might have expired was first raised by Councilwoman Valerie Cartright (D-Port Jefferson Station) during a July 12 meeting. She abstained from voting on a motion to lift a restrictive covenant preventing the project’s advancement due to amendments made to Caithness’ original 2014 plans, which included a reduction to the plant’s output capacity and updated technology. The other five councilmembers and Supervisor Ed Romaine (R) voted to remove the covenant.

“They’ll have to file a new application for the special permit and we’ll certainly accept it,” Eaderesto said.
The town attorney noted Caithness still has a pending site plan application before the Planning Board, which would remain as such as a new special use permit is sought.

The proposed project has drawn opposition for its potential environmental impact from groups like Sierra Club Long Island and state Assemblyman Steve Englebright (D-Setauket).

In addition, Port Jefferson Village Mayor Margot Garant has spoken out against the proposal, warning the construction of a second Caithness plant could push her community “off the economic cliff.”

The village has argued a way to make good with Long Island Power Authority over its decreasingly needed plant — and LIPA’s legal contention its Port Jeff plant’s property tax value is over-assessed and has been for years — could be to increase its output capacity. If constructed, the Caithness II plant, which would be built nearby the company’s first Yaphank plant opened in 2009, could theoretically kill plans to repower the Port Jefferson plan, according to the village.

Port Jeff Village and the town have said a settlement is nearing in an eight-year-long legal fight with LIPA, that will likely result in a gradual decrease in revenue from the plant’s property taxes, which help fund budgets for the village, Port Jefferson School District, the fire department and the public library.

Brightview Senior Living is looking to construct a 170-unit facility on about nine acres of land off Route 112 in Port Jeff Station, illustrated above within the red box. Image from Google Maps

Another large-scale development project is in the works for the Port Jefferson Station area.

Brookhaven Town approved a zone change at its July 12 meeting paving the way for the construction of a 170-unit assisted living facility on Route 112 in Port Jefferson Station on a parcel near The Meadow Club banquet hall. With plans already progressing in recent months to construct a 244-unit residential complex for senior citizens on North Bicycle Path just off of Route 112 and New York Gov. Andrew Cuomo’s allocating of $8 million in funds for a roughly 100-unit project for affordable and homeless housing on Route 112 near East Grove Street, this will be the third property set for massive development in a roughly mile and a half stretch of the state highway.

Baltimore-based developer Brightview Senior Living will be building and operating the assisted living facility, as it does with each of its 35 properties, according to Vice President of Development David Holland, who spoke during a town public hearing on the zone change July 12.

“We intend to be long-term citizens of Brookhaven and strive to be good neighbors to all who are around us,” Holland said.

The VP said the company expects the majority of its tenants to be in their 80s and 90s and in need of regular, daily care. Brightview’s current site plan for the approximately nine-acre plot of land includes a three-story building with dining venues, a theater, a pub, a library, indoor and outdoor lounges, as well as its own sewage treatment facility for the site.

The property was previously owned by area resident Jeff Kito and his family dating back to the 1950s, he said during the hearing. Kito is the former president of the Port Jefferson Station/Terryville Civic Association and lives on the nearby Canal Road currently. He said he and his brother decided to sell the property about three years ago and sought to find a developer interested in building something along the lines of what Brightview proposed. He said he has met with neighbors in the vicinity to discuss the plans.

“I think we’ll have a great facility for the community,” he said.

Kito’s former colleagues in the civic association submitted a letter to Brightview dated Jan. 25, 2017, stating the members had no objections to the project.

“We look forward to working with your firm as this assisted living facility proposal is further developed in our Port Jefferson Station Terryville Hamlet,” said the letter, signed by then-President Ed Garboski, who is now the vice president.

Current President Sal Pitti said in an email the civic association still has no objections related to the project. Town Councilwoman Valerie Cartright (D-Port Jefferson Station) and Anthony Guardino, an attorney representing the applicant at the July 12 hearing, each said they had received a single letter from a community member in opposition of the development in addition to several in favor, including one signed by all homeowners on Patty Ann Court, which is also nearby the boundaries of the parcel. The property is expected to have a significant buffer from other residential properties that will include sizable evergreen trees.

Holland indicated a demand for such a facility exists in the area, as Brightview determined about 1,500 assisted living beds are currently available in the town.

About 16 percent of Suffolk County’s population is 65 or older, according to the website www.censusreporter.org, which is slightly higher than the New York state and United States rates. Port Jefferson Station’s 80-plus population is substantially larger — about 20 percent — than that of the state and surrounding region, according to the site.

Hurdles remain for project, which could have environmental and economic implications

Brookhaven Town Supervisor Ed Romaine. File photo by Erika Karp

They’ve got the power.

Brookhaven Town voted 6-0 with one abstention in favor of lifting a restrictive covenant on an application by Caithness Energy LLC to construct a new, 600-megawatt energy generation plant in Yaphank at a July 12 meeting. When the board approved the independent power producer’s initial 2014 application, when it sought to construct a 750-megawatt facility, it imposed strict regulations aimed at preventing Caithness from making any changes to its plans, or face starting over from square one getting approvals. The power company asked town officials to lift the covenant for its present-day plans that feature newly available technology — which is what required the second vote, preceded by a June 26 public hearing.

Councilwoman Valerie Cartright (D-Port Jefferson Station) abstained from the July 12 vote after voting against the application in 2014, which passed 5-2. Supervisor Ed Romaine (R) voted “no” in 2014, but approved the lifting of the restrictive covenant this time around.

Councilwoman Valerie Cartright voted against Caithness’ application in 2014, and abstained from the vote to remove a restrictive covenant on the application July 12. File photo by Erika Karp

“In requiring such covenant proposed in 2015, the town board did not intend to require the applicant return for covenant amendments when technology changes or improves, or to construct a less impactful energy generating facility,” Brookhaven Town Attorney Annette Eaderesto read from her office’s findings on the matter. “In fact, the town board finds that in consideration of the health, safety and welfare of the residents of the town, the town shall not regulate or restrict the technology that may be used by the applicant.”

Caithness President Ross Ain said in a statement the company was pleased to hear the town had repealed the restriction.

“We now look forward to consideration and approval of the site plan filed with the Planning Board for what will be the region’s cleanest, most fuel-efficient, and most water-conserving power plant,” Ain said.

Cartright explained she was abstaining from the vote to repeal the restrictive covenant because she thought a vote to either approve or disapprove of Caithness’ entire application would be more appropriate. She also raised a concern about the special use permit issued to Caithness in 2014, which according to her interpretation of town law, expired July 15, 2018.

“That’s under consideration,” Eaderesto said of Cartright’s concern in a phone interview.
The town attorney said she expected the Planning Board to decide if Caithness will be required to reapply for the special use permit for the Yaphank site this week.

Don Miller, a spokesman for Caithness Energy, did not respond to a question raised by email regarding Cartright’s suggestion the company’s special use permit expired Sunday.

Caitness’ renewed request comes as Port Jefferson Village and the town have said a settlement is nearing in an eight-year-long legal fight with Long Island Power Authority over the utility company’s contention its Port Jeff plant’s property taxes are over assessed based on the decreasing energy demand. The settlement would smooth the impact of a potential substantial loss of revenue for the village, Port Jefferson School District, Port Jefferson Free Library and Port Jefferson Fire Department based on a reduced assessment of the plant. It would also prevent the village from being held liable for years of back pay should it have chosen to play out the legal battle in court and lost rather than settling the case. The village has argued a way to make good with LIPA over its decreasingly needed plant could be to increase its output capacity. If constructed, the Caithness II plant, which would be built nearby the company’s first Yaphank plant opened in 2009, could theoretically kill plans to repower the Port Jefferson plant.

However, according to Ain, as of June 26 LIPA has made no commitment to purchase power from the company should a second facility be constructed in Yaphank. It does purchase power from the first Caithness plant.

“The construction of a Caithness II facility will have the inevitable effect of pushing our community off the economic cliff.”

— Margot Garant

The June 26 public hearing drew comments from those in favor of the proposal, many of whom being Longwood school district residents who would likely see a reduction in property taxes, similar to what Port Jeff residents enjoy currently for housing the Port Jefferson Power Station. Environmental groups and other residents opposed the plan, as did Port Jefferson Village Mayor Margot Garant and state Assemblyman Steve Englebright (D-Setauket), who each submitted statements to be read into the record by Cartright against the proposal and urging the board to vote it down June 26.

“The construction of a Caithness II facility will have the inevitable effect of pushing our community off the economic cliff at the end of the proposed period of gradual reductions, while leaving us to deal with an enormous, closed, unusable industrial site which will need serious environmental remediation,” Garant said in her letter read by Cartright. The mayor said she has sent a similar inquiry to the town board as was raised by Cartright regarding the life of the applicant’s special use permit, though has yet to hear back from Brookhaven.

A representative from Sierra Club Long Island, a local chapter of the national nonprofit dedicated to environmental advocacy, spoke out against Caithness II during the June 26 hearing.

“The Sierra Club strongly opposes any attempt to construct a new gas plant on Long Island, and we oppose the Caithness II proposal regardless of the technology involved,” said Shay O’Reilly, an organizer for the nonprofit. “It is absurd to argue that building more fracked gas infrastructure will allow us to meet our clean energy and pollution reduction goals.”

This post was updated July 17 to include comment from Port Jefferson Village Mayor Margot Garant.

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