RICHARD A. EHLERS, ESQ. 486 Griffing Avenue Riverhead, NY 11901 (631-727-4100 h 31,2021 ‘Town of Riverhead Planning Board ‘Attn: Stanley Carey, Chairman 200 Howell Avenue Riverhead, NY 11901 Dear Chairman Carey and Members: Please accept this leter from me in my capacity of Counsel to the Planning Board, The Board has requested a writen opinion regarding SEQR compliance forthe site plan application of Calverton Solar Energy Center (Nextera). This mate is curently under ste plan review by the Planning Board and is an adjourned agenda item for pubic hearing. The use ofthe property in question has been determined by Special Permit of the Town Board granted December 1, 2020, The Town Boar, in reviewing the Special Permit, requested and assumed lead agency status. As lead agency, the Town Board issued a Negative Declaration by resolution dated February 4, 2020. No court challenge to ether the Negative Declaration or Special Permit have been brought by Article 78 of the CPLR. It is my understanding thatthe Environmental Assessment Form prepared by the applicant, which was relied upon by the Town Board in the issuance of the negative declaration, stated that the height of the project would not exceed eleven (11) feet. The site plan submitted by the applicant for Planning Board review depicts an eletricalsub- station with mast structures of forty (40) feet and transformers of approximately twenty (20 fet, in excess of eleven (11) feet. These structures ate located adjacent to Edwards ‘Avenue, a town road. ‘These structures comply withthe Zoning Code of the Town of Riverhead regarding height. During site plan review of the location of the sub-station adjacent to Edwards “Avenue the diserepancy between the height ofthe substation structures with the Town Board SEQR record was discussed ata meeting of the Planning Board, Asa result ofthis discussion, the Planning Board requested clarification of the situation from the Town ‘Board, By letter dated March 30, 2021 three ofthe five Town Board members wrote that this difference in height would not have altered their decision to issue the Negative Declaration and grant the Special Permit and that no further action would be taken by the ‘Town Board. Therefor, the Planning Board is confronted with a SEQR record which is seemingly at variance withthe site plan as presented for Planning Board review. This ‘resents two issues to the Planning Board. First, may the Planning Bostd open the SEOR record and require further environmental review of the height of structures beforeproceeding with the public hearing. Second, how may the Planning Board evaluate the Propriety and location ofthese structures asa function of site plan review. A negative declaration issued by a lead agency may not be reviewed or altered by an involved agency where coordinated review has properly been conducted and the negative declaration properly disseminated tothe involved ageney by the lead agency. ‘The only avenue of review is litigation by the involved agency. In this case, the lead agency issued the Special Permit and completed the permiting process. The Town Board no longer has jurisdiction over the SEQR record. As a duly noticed involved agency, the SSEQR record is closed as egards the Planning Board at this time, ‘As regards the second issue, the Planing Board retains decision making authority ‘over all site plan review decisions within its organic site plan review authority inrespective of the negative declaration. Said another way, the negative declaration sued by the Town Board does not proserbe or limit the Planning Boards ability to require changes to a submitted site plan for matters within its site plan jusdicton ‘Therefor, the Planning Board may review and consider changes inthe site plan required by the height of structures and their proximity to @ town road and other aesthetic ‘considerations related tothe placement of structures as would be attendant to site plan review. The Town Board negative declaration does nat curtail proper site plan review considerations. ely Richard A. Ehlers ce Robert Kozakiewicz, Esq