CAT’s EPCAL plan violates the very town ordinance it says it relies on for approval

May 3 was an important night for Riverhead.  Hundreds of concerned residents packed the Hotel Indigo ballroom to hear what CAT thought would be their opportunity to numb the public with more empty marketing.  That hope was not realized. Residents’ questions and opinions came fast and furious.  

One of those questions came from me.  After sharing that under the relevant traffic data, CAT’s proposal to build the equivalent of 13 and ½ new Tanger Mall outlets would likely generate between 35,000 and 66,000 new vehicle trips on Route 25 per day I referenced CAT’s own application for this project, which states that it “complies with the Planned Development (PD) Zoning Use District.”  I then pointed out that according to this same PD ordinance, “any use [of the site] which generates offensive noise, vibration, dust, smoke, gas or other nuisances shall be prohibited.”  Town of Riverhead Code, Part III Zoning and Land Development, Article LXIII Planned Development (PD) Zoning Use District, Section 301-341(A) (last sentence of that subsection). Not “may” be prohibited —  “shall” be prohibited.  

Leading to my question.  I asked CAT attorney Chris Kent whether choking our roads with between 35,000 and 66,000 new vehicle trips per day would generate offensive noise, vibration, dust, smoke, gas or constitute an “other nuisance” in violation of the PD ordinance.  Kent, a former member of the Town Board and now CAT’s lawyer on this project, presumably knows how to read ordinances.  Except, apparently, this one.  Kent declined to answer my simple question.  He said he would need to talk to an “expert” to figure it out.

Tim Hubbard, currently on the same Town Board that is a co-applicant with CAT on this debacle and an announced candidate for Town Supervisor, was also in the room.  He, too, had every opportunity to speak up and answer this simple question.  What did we get from Mr. Hubbard?  Crickets. 

As a former federal prosecutor, I know how to read ordinances.  So let me help them both out now.  

“Nuisance” is a flexible concept.  The basic idea is simple. Property owners have rights, but those rights are not unlimited.  A property owner may not “use his land so unreasonably as to interfere unreasonably with another landowner’s use and enjoyment of his land.”.  Meaning, for example, that CAT cannot do things with the EPCAL tract that “annoys, injures or enangers the comfort, repose, health or safety of others  . . . [or] obstructs or tends to obstruct, or render dangerous for passage, any . . . street or highway; or in any way renders other persons insecure in life, or in the use of property.” Id. 

That is the general concept.  And under it, CAT fails.  

Which is a failure that becomes even more obvious when we look at our actual PD ordinance.  The one CAT says it is adhering to.  By its terms, that PD ordinance defines uses of the tract that “generate[s] offensive noise, vibration, dust, smoke, [or] gas“ as, in effect, prohibited nuisances.

We don’t need an “expert” to tell us that between 35,000 and 66,000 new vehicle trips along one (or several) of our local road(s) that many residents use to get to and from their homes is almost certainly a prohibited nuisance under the PD ordinance.  Which means CAT’s plan is almost certainly prohibited.  That is patently obvious.  Equally obvious is that we need to elect people with enough integrity to say so.   

Andrew Leven is a Riverhead resident and a candidate for Riverhead Town Board.