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Updated: 6/27/2008 - 3:02 PM

More owls spotted at EPCAL
Meanwhile, DEC criticizes lack of cooperation from town
  0 comments below

News-Review photo by Barbaraellen Koch
Supervisor Phil Cardinale looks out his car window at a short-eared owl near the EPCAL runway last Tuesday afternoon.
Supervisor Phil Cardinale is no longer an agnostic when it comes to the presence of endangered short-eared owls at Enterprise Park in Calverton on property where Riverhead Resorts wants to build a mega vacation complex.

"I guess they really are here," he told News-Review photographer Barbarellen Koch, who had accompanied him on a visit to the former Grumman compound last week.

Mr. Cardinale, who had earlier questioned whether owls were there at all, spotted two of them up close during his visit. And as many as 10 have been spotted and documented, according to Peter Scully, Long Island regional director of the state's Department of Environmental Conservation.

Many of the sightings have been in the vast grasslands that flank the two runways at EPCAL, which the owls use to forage. Riverhead Resorts plans to demolish the 7,000-foot runway and replace it with a 92-acre man-made lake. So the presence of short-eared owls, a DEC-listed endangered species, prompts several questions:

* Could the owls and other environmental concerns force Riverhead Resorts to alter drastically its plans on the 755 acres it is in contract to buy from the town for $155 million?

* Or, in the extreme, might Riverhead Resorts decide to back out of the project altogether if it concludes that environmental impacts would either be impossible to mitigate or that the cost of mitigation would render the venture unprofitable?

The latter is only a remote possibility and unlikely to happen, insists Mitch Pally of Weber Law Group, which represents Riverhead Resorts. Nevertheless, he says the task of carefully examining environmental impacts is very much part of the due diligence process his clients are currently engaged in. They have even hired their own outside consultants, including ornithologists and other experts, to survey the site in concert with wildlife biologists from the DEC.

Mr. Pally said its contract with the town gives Riverhead Resorts until July 15 to decide whether or not to move forward.

"That's what a due diligence period is for," Mr. Pally explained. "It's a common occurrence in all real estate matters because nobody knows what you're going to find until you find it. So technically, the answer is 'yes' as to whether we can get out." But he said he certainly doesn't expect that to happen.

According to Mr. Pally, if the developers were to decide not to proceed, they would leave on the table a portion of the down payment they have already made to the town.

He said Riverhead Resorts has paid Riverhead $4.5 million, $2.5. million of which the town keeps regardless of what happens on July 15. He said an additional $2 million would be due on July 15 if his client proceeds with the project, "which we assume we will do," he said.

Dick Amper, executive director of the Pine Barrens Society and a veteran of environmental challenges, said Friday he doubts the owls can block development.

"In almost every case I know," he said, "it may require a redesign of the project, but everything at EPCAL is not stopped by tiger salamanders, short-eared owls and northern harriers."

Depending on the foraging area that is mapped out and other habitat factors, he said, "it's not unimaginable that the project could proceed very much as planned with some mitigating measures." He added that "the owls might be wise enough to move 150 yards to the west for their food."

Mr. Amper warned, however, that the biggest issue he sees, and one that could encourage lawsuits, would be the manner is which the project is reviewed.

"Riverhead appears to be trying to limit the involvement of outside agencies, which will flaw the process and probably will compromise even the sponsors of the project," Mr. Amper said.

He pointed to the battle he and others in the environmental community waged five years ago over Friar's Head Golf Course along Sound Avenue.

"There was no question from beginning to end that the town was going to give the developers what they wanted. But because they didn't do it procedurally right, it was in court for years," Mr. Amper said. "Ultimately, the developers lost and, as a result, agreed to make major modifications to their project to avoid further delays.

"The last thing Riverhead Resorts or anybody else needs is five years of litigation," he said. "So environmentalists, the town and the developers all benefit from making sure that the review process goes right."

But apparently what isn't going right at the moment -- at least if you talk to Mr. Scully -- is the town's relationship with the DEC.

He said the town had set a number of conditions that had to be met before DEC staff would be allowed access to the property Riverhead Resorts is in contract to purchase. The same conditions also applied to Rechler Equity Partners, which is in contract to buy 300 acres at EPCAL for a light industrial and office park complex.

Mr. Scully has accused the town of stonewalling. He said the town was insisting that DEC provide an insurance certificate listing Riverhead as additionally insured, which he called an odd requirement. The town was also insisting, he said, that all reports generated by DEC visits be shared with the town and that any access by the DEC would first have to be approved by the Town Board. Mr. Scully said that these conditions were unacceptable.

Under pressure from Riverhead Resorts and Rechler, he said, the town finally permitted DEC access under the developers' due diligence agreement as spelled out in their contracts. But, he said, DEC access to other parts of EPCAL -- those not involving Riverhead Resorts or Rechler -- remains held up by the town.

"The series of conditions that have prevented DEC from accessing the entire EPCAL site still stand," Mr. Scully said Monday. "We see that as unfortunate since a comprehensive review of the entire property is required. The fact is that wildlife does not respect property lines that only exist on tax maps."

Riverhead town attorney Dawn Thomas, who has been communicating with the DEC's attorney in Albany, expressed surprise Tuesday at Mr. Scully's complaint. She said all Riverhead was looking for was the kind of intergovernmental agreement that is normal in such circumstances. Besides, she said, the DEC has had access to the entire EPCAL property for years and has filed reports with the town.

Reached in California, where he is visiting his daughter, who just gave birth to a baby girl, Mr. Cardinale said, "I'm anxious to give them access to the entire site, and the only provisions that concern me are the ones I heard from our town attorney."

He said he planned to bring the matter up at today's Town Board work session and that it could well be that the board would agree to drop all conditions.

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