Prior Application Approved. The developers initially sought approval for a 64 single family home clustered subdivision. They applied to the Pine Barrens Commission for a hardship exemption for the project and a hearing was held. The transcript of the 11/16/05 hearing shows their arguments and the Commission's minutes of the 11/16/05 meeting summarize some aspects of the hearing. The Commission granted the exemption in a 1/18/06 resolution.

An application for the project was also made to the Town. The developers sought and obtained relief from the moratorium for the CR 51 Land Use Plan. Their application for the single-family project was approved by the Planning Board with conditions as shown in its May 24 2007 letter. In connection with this plan, the owner gave and recorded covenants and easements to the Town, the County and the Pine Barrens Commission (see DoH covenants, Town covenants, Pine Barrens covenants and Town easements). The Suffolk County Planning Commission had disapproved the proposal.

Now Seek Doubling Density. Now, however, the owner wants to double its yield, and seek a change of zone from A-1 (1 acre per single family house) to B-Residence (15,000 sq. ft. per unit) to permit the doubling of the density. They propose to use the same layout of buildings as in the approved 64-unit plan, but make most of the houses duplexes.

According to their current application, filed 7/16/09, they want

• 119 units--30 first time home buyer units and 86 duplex unit--with lot sizes averaging about 14,700 SF
• a recreational building, pool and other recreational amenities including a system of trails
• a surface water feature occupying approximately 6.77 acres
• 327 parking spaces including 178 garages and 128 driveway spaces
• 29 acres of open space.

Environmental Impacts? The owner submitted a Full Environmental Assessment Statement with its application, as well as a Fiscal and Economic Impact Analysis (both have been updated, see below). By August 26, the Town had concluded that the project had "possible significant environmental impacts" and started the SEQRA investigation process. In a September 3 letter, the Town's Environmental Protection Division requested additional information from the owner. The owner has filed an EXPANDED Environmental Assessment Report on October 6, 2009. It includes appendices with approvals for the prior 1-acre/house plan, a Fiscal and Economic Analysis which addresses school taxes and other issues, and a traffic assessment.

In a 9/23/09 memo, The Town's Division of Traffic Safety has stated that the requested downzoning "could have an adverse traffic impact." It estimated that "the proposed development will generate more than 1.4 times the vehicle trip-ends (1480 vehicle trip-ends in a 24 hour period) than if the site were developed under the existing zoning (832 vehicle trip-ends in a 24 hour period)." In a 10/13/09 letter, the NYS Transportation said that "a revised Traffic Impact Study is warranted" given the additional traffic that would be generated by increased density. Traffic Safety reiterated its concerns in a 11/16/09 memo.

On 12/8/09, the Town Board approved a pos dec requiring the applicant to file an Environmental Impact Statement that would be supplemental to the CR 51 Land Use Plan. With record speed, the applicant filed a draft EIS and on 12/22/09 the Town Board decided that it was" deemed to be satisfactory with respect to its scope and content". It scheduled a hearing for the first meeting in April (no specific date yet) on the EIS and on the application to change the zoning of the site from A-1 to B Residence. The DEIS is available for viewing in several parts (due to its size): the main text, a part of the CR51 Land Use Plan, various prior Town approval documents, an updated Fiscal and Economic Impact Analysis, and a Traffic Assessment.

As part of the SEQRA process, the Town asked Suffolk County Planning if it had any objection to the Town's being the lead agency under SEQRA. In a 4/30/10 letter, the County said it had no objection, and added:

"It would appear that there is no basis for a Change of Zone to higher density. Moreover, the subject site is remotely situated for attached housing and posses limited amenities desired for multi-residence purposes."

Pine Barrens Hardship Exemption.

A Pine Barrens hardship exemption would be required for this project to proceed. This was stated in a letter from the Commission staff. It raised other issues, including the need for a sewage treatment plant rather than individual backyard septic systems.

An application for the exemption has been filed and may be viewed on the Commission's website. The hearing on the application was started on March 17 and testimony from residents, environmentalists and civics was heard. The hearing transcript may be viewed, as well as the Commission's minutes of the meeting. The Commission decided to adjourn the hearing once it learned from Suffolk County's representative that the County would not agree to the plan for acquiring another property without certain sanitary credits--which credits would then have be used for increased sanitary density on this property. The application is now on the Commission's agenda for June 16 at 2 pm at the Brookhaven Town Hall.

4/20/10 Town Board Hearing on the COZ application

A large crowd, estimated at 100, came to the Town Board hearing on the proposed downzoning. From Supervisor Mark Lesko's initial comments, it seemed the hearing might not be held, despite the number of people who had come. After a brief executive session, Councilman Dan Panico came out with thumbs up, indicating that the hearing would proceed.

The hearing took up most of the evening's meeting. Applicant's professionals presented their reasons for the COZ, which were summarized in a Powerpoint presentation. 28 residents spoke on the project, nearly all against the change of zone. The exhibits submitted to the Board at the hearing, including letters from EMPOA and residents, may be viewed (the pdf has bookmarks viewable only if you download them). An article in the Press of Manorville & the Moriches covers other aspects of the hearing. In an editorial in the same issue, the Press came out strongly against downzoning.

The hearing on the change of zone was not closed, and will be resumed later. The announced reason for this unusual procedure was that the Suffolk County Planning Commission still needs to review the COZ application. (In fact, for reasons not yet clear, the Town had not referred the issue to the Commission prior to the hearing.)

At the hearing, references were made to the status of Encore Atlantic Shores, a PRC on 75 acres just to the west of the Hamptons Club site (in the rest of the triangle formed by the Riverhead Road (CR 51), Route 111 and the Sunrise Highway). Information on Encore's zoning history has been uploaded as background.

4/20/10 Town Board Hearing on the draft EIS

Simultaneously with the COZ hearing, a hearing was being held on the Draft Environmental Impact Statement (DEIS) that the applicant had prepared. An EIS is supposed to accurately describe the impacts the proposed project would have if allowed. Here is a brief summary of what SEQRA regulations say is supposed to happen procedurally:

When a public agency (like the Town Board) is considering an action (like a re-zoning) that might have one or more significant adverse environmental impacts, it issues a "positive declaration" requiring that an Environmental Impact Statement be completed. The applicant drafts the DEIS, and it is reviewed by Town staff. When done, it is presented to the Board to decide whether to accept it as adequate for public review and whether to hold a public hearing on it. After the public hearing is held, revisions shown necessary by the hearing are made, and a final EIS is filed. All of the comments received from the public and other agencies on the DEIS are to be part of the final EIS.

You can review the regs on our website (click for online info) or see more on DEC's website (click for DEC).\

In this case, the Board issued a "Pos Dec" requiring an EIS on December 9. On December 22, it accepted applicant's DEIS as ready for public review, and set the hearing date. On March 23, the Board by resolution also set the COZ hearing for the same date, April 20. The hearing on the DEIS was held and closed except for written comments on the DEIS received by April 30.

The applicant and the Town are now reviewing the DEIS comments and preparing a Final Draft Environmental Impact Statement.

6/16/10 Pine Barrens Commission Hearing

A Commission staff member had drafted a report for the Commission dated May 17, 2010. It recommended denial of the hardship exemption application. The reasons included:

"a. Competent financial evidence not submitted to demonstrate hardship.

b. The hardship is not unique to the property.

c. A project for increased density would alter the essential character of the neighborhood.

d. The hardship is self-created.

. . . .

c. No sanitary wastewater credits or development rights generated outside of the Central Pine Barrens shall be used within the Central Pine Barrens."

On the Friday prior to the continued exemption hearing, the applicant filed 230 pages of argument and exhibits. They were responses by applicant's attorney and its engineer to a staff report. Four attachments to the engineer's letter lay out real estate data intended to show that there is demand for the type of condos and houses to be offered under the B-Residence plan (Attachments A-1 and A-2), the features of units being offered in the proposed price range (Attachment B) and the infeasibility of selling homes under the approved A-1 Residence plan (Attachment C). The applicant was ready at the hearing to make an oral presentation as well.

However, the Chairman noted that the applicant's papers had just been received, and the Commission adjourned the hearing to its next meeting, Wednesday, July 21 at 2 pm.

7/20/10, EIS Accepted

On July 20, Brookhaven's Town Board passed a resolution approving the final Environmental Impact Statement. It includes comments made by the public on it, and responses to those comments prepared by the applicant. It was reviewed by the Town's Environmental Protection Division. The comments were made on the draft EIS, which is available for viewing in several parts (due to its size): the main text, a part of the CR51 Land Use Plan, various prior Town approval documents, an updated Fiscal and Economic Impact Analysis, and a Traffic Assessment. The Final EIS may be downloaded from the Town's website (with pages is the wrong order) or viewed on this website in a searchable version with bookmarks and pages in the right order.

9/1/10 S.C. Planning Commission Meeting

As required by NY's General Municipal Law §239-m and Suffolk County Administrative Code §A14-14, the Town referred the application to the County Planning Commission under General Municipal Law §239-l. On such a referral, it may consider land use compatibility, traffic generation, nearby impact on county or state uses, community character (including uses and density), drainage, community facilities, and official municipal and county development policies. It looks at the application from a County and inter-Town perspective.

Previously, the Commission considered the A-1 (1 house per acre) plan originally proposed and approved by the Town. On 11/3/04, it disapproved the original proposal because, as the meetings minutes show, "it's felt that a greater effort should be made to preserve open space". Applicant is now proposing near-double density using almost the same layout of houses (now duplexes) as was originally proposed.

The Commission considered the referral on 9/1, and disapproved the proposed downzoning by a vote of 9 to 1. This means an additional vote will be required on Brookhaven's Town Board to pass the change of zone as currently proposed. Five votes for, rather than the simple majority of 4 will be required. S.C. Admin. Code §14-16.

The Commission adopted the recommendation of disapproval in the Staff Report it received at its meeting. The Staff Report recommended disapproval because 1) the proposal called for using sanitary credits from outside the Pine Barrens and moving density from outside the Pine Barrens into it is contrary to the intent of the Pine Barrens Act and threatens groundwater and 2) increasing residential density on this site is not consistent with policies that increased residential density should be in close proximity to hamlet centers, community services and transportation.

9/7 and 9/21/10--Town Board Findings Resolution

EMPOA learned only on 9/3 that a resolution would likely be moved at the Town Board's 9/7 meeting to adopt SEQRA Findings for the proposed downzoning--maybe early in the meeting. Findings under SEQRA are supposed to provide the factual support for the action to be taken, here a downzoning from A-1 Residential to nearly twice the density of B-Residential zoning.

Here is how NYS's Department of Environmental Conservation describes "Findings":

"A findings statement is a written document, prepared following acceptance of a final EIS, which declares that all SEQR requirements for making decisions on an action have been met. The findings statement identifies the social and economic, as well as environmental, considerations that have been weighed in making a decision to approve or disapprove an action. A positive findings statement means that, after consideration of the final EIS, the project or action can be approved, and the action chosen is the one that minimizes or avoids environmental impacts to the maximum extent practicable. For an action which can be approved, an agency's findings statement must articulate that agency's balancing of adverse environmental impacts against the needs for and benefits of the action. If the action cannot be approved based on analyses in the final EIS, a negative findings statement must be prepared, documenting the reasons for the denial." DEC's SEQRA Handbook, §5I (online) (emphasis added).

This means that adoption of positive findings statement is a prelude to a downzoning. DEC's SEQRA Handbook is here.

The Findings have yet to be adopted. The resolution for them was taken off the agenda late in the afternoon of 9/7. They were expected to be proposed at the 9/21 Town Board meeting, but were not because of litigation commenced against the Town by the owners of the Oaks and Heritage Square properties. The Oaks was the site from which the sanitary credits were supposed to have come to allow sanitary flow from near-double density.

9/15/10 Pine Barrens Commission Hearing.

At the July 21 meeting, staff announced that the applicant had decided not to speak (as had been expected), so no stenographic report was present. The hearing was adjourned to September 15 at 2 pm.

At the June 16 hearing, Commission members had raised various questions, which were set forth in a 7/20/10 letter to the applicant. The applicant was expected to have responded to the questions prior to the 9/15 hearing, but had not. In fact, although its engineer was present, applicant did not have anyone make a presentation at the hearing. Members of the public did speak, reiterated opposition to the project, and responded to contentions made in 6/11/10 letters by applicant's attorney and its engineer . Their testimony and the rest of the proceedings are in the transcript of the hearing.

The Commission said it expected a response from applicant to its questions, and directed that it be delivered by October 6 and be posted on the Commission's web. The response is to be posted on the Commission's website and the public may comment on it in writing by October 27. The hearing is to be continued on November 17.

Applicant's additional information filed 10/6/10.

Applicant's attorney and engineer submitted written responses to the Pine Barrens Commission's staff's 7/20/10 letter on 10/6/10. In their letters, they address specific issues raised by the Commission. The attorney also submitted a lengthy and detailed "Feasibility Analysis" by a real estate appraisal firm. As described by the attorney, the report

"describe[s] the market conditions and marketing activities which were undertaken by the applicant and which have led to a conclusion that the approved project will not produce a reasonable return and that the proposed plan is marketable under today's conditions and will result in a moderate return for the applicant."

(The 54-page report is 9.6 Mb. View it with Google Docs or download it and get the benefit of added bookmarks.)

EMPOA submitted a response to the additional material filed by applicant.

Request for Hardship Exemption Withdrawn 11/4/10.

By letter to the Pine Barrens Commission dated 11/4/10, applicant withdrew its request for a hardship exemption. The reason given was that its "contract with the owner of the property known as The Oaks has expired and [applicant has] not yet been able to renegotiate the terms for the purchase of the sanitary credits associated with The Oaks property."

The letter stated that applicant might seek to have its application restored to the Commission's calendar. The Commission's resolution accepting withdrawal stated that any resubmission would restart the normal 120-day review period.

Changing ideas