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HomeMy WebLinkAboutHeritage Stipulation of Settlement N RESOLUTION 2014-755 ADOPTED DOC ID: 10095 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2014-755 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON SEPTEMBER 9, 2014: RESOLVED that the Town Board of the Town of Southold hereby ratifies and approves the Stipulation of Settlement in the New York State Supreme Court hybrid proceeding/action entitled Nocro, Ltd., et al. v. Russell, et al., Suffolk County Index No. 09-19101, in which the Town Board and the Planning Board are named as respondents/defendants and hereby authorizes Supervisor Scott A. Russell to execute said Stipulation on behalf of the Town of Southold and the Town Board respondents/defendants. Elizabeth A. Neville Southold Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: William P. Ruland, Councilman SECONDER:Louisa P. Evans, Justice AYES: Ghosio, Dinizio Jr, Ruland, Doherty, Evans, Russell r 1 7 f SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ------------------------------------------ ------------------------- NOCRO, LTD. and THE HERITAGE AT STIPULATION OF CUTCHOGUE, LLC, SETTLEMENT Petitioners/Plaintiffs, Index No. 09-19101 - against - SCOTT A. RUSSELL, LOUISA P. EVANS, THOMAS H. WICKHAM, ALBERT J. KRUPSKI, JR., WILLIAM P. RULAND, and VINCENT M. ORLANDO, individually and as members of the TOWN BOARD OF THE TOWN OF SOUTHOLD; TOWN BOARD OF THE TOWN OF SOUTHOLD; JERILYN B. WOODHOUSE, GEORGE SOLOMON, JOSEPH L. TOWNSEND, KENNETH L. EDWARDS, MARTIN H. SIDOR, individually and as members of the PLANNING BOARD OF THE TOWN OF SOUTHOLD; PLANNING BOARD OF THE TOWN OF SOUTHOLD; and TOWN OF SOUTHOLD, Suffolk County, New York, Respondents/Defendants. -------------------------------------------------------------------X WHEREAS;-NOCRO, Ltd. (hereinafter"NOCRO") is the owner of a certain parcel of vacant real property, approximately 45.99 acres in area, located on the northerly side of School House Lane, at the intersection of School House Lane and Griffing Street, in the Hamlet of Cutchogue, Town of Southold, Suffolk County, New York, which parcel is currently designated as Parcel No. 1000-102.00-01.00-133.003 on the Suffolk County Tax Map (hereinafter the "Subject Property"); and WHEREAS, The Heritage at Cutchogue, LLC (hereinafter"The Heritage"), is a contract vendee, by assignment, from NOCRO, with respect to the Subject Property; and 2859438.1 r 1 1 WHEREAS, the Subject Property is classified in the "Hamlet Density(HD) Residential"zoning district of the Town of Southold(hereinafter the "Town") under Chapter 280 ("Zoning") of the Code of the Town of Southold (hereinafter the"Town Code") and the "Zoning Map" incorporated in Chapter 280 of the Town Code; and WHEREAS, The Heritage has had pending before the Town and Planning Board of the Town of Southold (hereinafter the "Planning Board"), since June 15, 2005, an application for site plan approval for the proposed development of residential units and related facilities on the Subject Property (hereinafter the "Site Plan Application"), and has paid to the Town a $70,050.00 application fee in connection with such Site Plan Application; and WHEREAS, the Site Plan Application has been amended since its initial submission and, in its last iteration, proposes development of 139 residential units and related facilities on the Subject Property; and WHEREAS, on July 16, 2007, the Planning Board (1) established itself as "lead agency," under the State Environmental Quality Review Act ("SEQRA" --Article 8 of the Environmental Conservation Law) and the SEQRA implementing regulations at 6 NYCRR Part 617, for review of the environmental impacts of the development proposed in the Site Plan Application, (2) designated the Site Plan Application as a"Type P' action under the SEQRA regulations, and (3) issued a "positive declaration" for the Site Plan Application under the SEQRA regulations, which required preparation of an Environmental Impact Statement("EIS") for the Site Plan Application; and -2- 2859438.1 1 WHEREAS, subsequently, the Town Planning Department issued a report that the Draft Environmental Impact Statement ("DEIS")prepared by The Heritage and last revised January 16, 2009 (hereinafter the "1/09 revised DEIS"), was acceptable for public review; and WHEREAS, on January 20, 2009, the Town Board of the Town of Southold (hereinafter the "Town Board")purported to enact three local laws (Local Law 1-2009, Local Law 2-2009, and Local Law 3-2009) that made amendments to Chapter 280 ("Zoning") of the Town Code, which amendments, if valid, would render the Site Plan Application non- approvable; and WHEREAS, NOCRO and The Heritage, on May 15, 2009, commenced this proceeding/action challenging the aforesaid purported local laws, and asserting other claims, by filing of a"Verified Petition/Complaint" dated and verified May 15, 2009 (hereinafter the "Petition/Complaint"); and WHEREAS, all claims asserted in this proceeding/action against the individual Respondents/Defendants, in their individual capacities, have heretofore been dismissed by the Court, leaving the Town Board, the Planning Board, and the Town of Southold (hereinafter the "remaining Respondents/Defendants") as the remaining Respondents/ Defendants in this proceeding/action, but appeals from such dismissal have not been exhausted; and -3- 2859438.1 WHEREAS, the Petitioners/Plaintiffs and the remaining Respondents/Defendants (hereinafter collectively"the parties") desire to settle this proceeding/action, and the claims therein, upon the following terms and conditions; NOW, THEREFORE, the parties and their undersigned attorneys, stipulate and agree as follows: 1. Upon the execution of this stipulation by all parties, the parties shall immediately suspend the prosecution/defense of this proceeding/action and all appellate proceedings, such proceeding/action shall be stayed upon "so ordering" of this stipulation as provided later in this stipulation, and such suspension and stay shall continue until 60 days after the issuance and filing with the Town Clerk of site plan approval for the modified development proposed for the Subject Property under this stipulation,unless such suspension and stay shall be sooner terminated pursuant to the further terms of this stipulation. At the end of the 60-day period specified in the first sentence of this paragraph, the parties shall discontinue this proceeding/action, subject to recommencement of this proceeding/action in the event that any of the events specified in Paragraph 33 of this stipulation occur. If this proceeding/action is dismissed for inactivity or any other reason during the period of its suspension and stay, as set forth in this paragraph, this proceeding/action may thereafter be recommenced by NOCRO and/or The Heritage against the remaining Respondents/ Defendants, and the remaining Respondents/Defendants agree not to assert, individually or jointly, any and all claims and/or defenses involving standing, the statute of limitations, laches, other timeliness arguments, and/or collateral estoppel or res judicata arguments based -4- 2859438.1 on dismissal otthis proceeding/action during its suspension and stay in or with respect to such recommenced proceeding/action and/or any or all of the recommenced claims. 2. Within one year after the "so ordering" of this stipulation, The Heritage shall submit to the Planning Board an amended Site Plan Application that proposes development of the Subject Property (hereinafter the "Contemplated Development") substantially consistent with the conceptual development plan annexed hereto as Exhibit"A" (hereinafter the "Conceptual Development Plan"), includes the following elements, and is subject to the following restrictions: (a) the Contemplated Development will include, after completion of all development phases, no more than 130 residential units, each comprised of one or more stories, all of which units shall be condominium units; (b) the Contemplated Development shall not include more than 245,000 square feet of"floor area, livable," as such term is defined in Section 280-4 of the Town Code as of the date of first execution of this stipulation, and the parties expressly acknowledge and agree that such"floor area, livable" shall not be deemed to include community facilities, garages, breezeways, unheated porches, cellars, heater rooms, and approved basements having a window area of less than 10% of the square foot area of the room, all of which are specifically excluded from "floor area, livable"; (c) the Contemplated Development shall include the setting aside of at least 50% of the Subject Property as "open space," and the parties expressly -5- 2859438.1 acknowledge and agree that the open space shown on the Conceptual Development Plan, and the setbacks shown therefor, satisfy all open space requirements; (d) the Subject Property shall be made subject to a covenant and restriction limiting occupancy of all the residential units to persons of the age of 55 years or older; a spouse of any age, provided the spouse of such person resides in the unit and is the age of 55 years or older; children or grandchildren residing with a permissible occupant, provided such children or grandchildren are 19 years of age or older; and individuals, regardless of age, residing with and providing physical support to a permissible occupant; and (e) the Subject Property will be developed in one or more phases and in accordance with the use, area, dimensional, parking, drainage, and other regulations applicable to the Town's "Hamlet Density(HD)Residential"zoning district, and proposed development therein, as provided by this stipulation. The parties shall discontinue this proceeding/action if The Heritage fails to submit an amended Site Plan Application to the Planning Board within one year after the "so ordering" of this stipulation. 3. Also within one year after the "so ordering" of this stipulation, The Heritage shall submit to the Planning Board a revised DEIS for the Site Plan Application that evaluates the potential adverse environmental impacts of the Contemplated Development. 4. The Planning Board has reviewed the Conceptual Development Plan and finds it to be generally acceptable. However, the parties expressly acknowledge that the Conceptual -6- 2859438.1 Development Plan is subject to both substantive and SEQRA review, public hearings, and adoption of requisite findings at the conclusion of that process. As such, the parties expressly recognize that this stipulation does not constitute a formal approval of the Conceptual Development Plan nor obligate the Planning Board to grant formal approval of the Conceptual Development Plan. 5. The Planning Board shall make, within the required time period(s) and in the required manner(s), all required referrals and notifications to the Suffolk County Planning Commission, the Suffolk County Superintendent of Highways, the Suffolk County Commissioner of Public Works, and other relevant Suffolk County officials with respect to the amended Site Plan Application. The Planning Board shall also schedule, notice, and hold a preliminary hearing on the amended Site Plan Application, as required by Section 280- 137(D) of the Town Code, and shall otherwise comply with the site plan application procedures of Chapter 280, Article XXIV of the Town Code. 6. Within ten (10) business days after its receipt of the amended Site Plan Application, the Planning Board or its staff shall notify The Heritage, or its successors or assigns, in writing, whether the amended application is complete, and, if it is not complete, what additional information or submission(s) is/are required to complete it. 7. The Planning Board shall, within 60 days after its receipt of the aforesaid revised DEIS, review the revised DEIS and determine whether it is adequate with respect to its scope and content for the purpose of commencing public review. In the event the Planning Board determines that the revised DEIS is not adequate with respect to its scope -7- 2859438.1 and content, the Planning Board shall, within the aforesaid 60-day period,provide to The Heritage or its successors or assigns a complete and detailed list of required revisions to the revised DEIS. Following receipt of the list described in the preceding sentence, The Heritage shall, within 180 days of its receipt of such list, submit a further revised DEIS to the Planning Board, and the Planning Board shall, within 60 days after its receipt of the further revised DEIS, (a) review the further revised DEIS, (b) determine whether the further revised DEIS is adequate with respect to its scope and content for the purpose of commencing public review, and (c) if the Planning Board determines the further revised DEIS is not adequate with respect to its scope and content, provide to The Heritage or its successors or assigns, within such 60-day period, a complete and detailed list of required revisions to the further revised DEIS. The procedure set forth in the preceding sentence may continue as many times as necessary to achieve a DEIS that the Planning Board deems adequate with respect to its scope and content for the purpose of commencing public review. However, if the Planning Board shall require more than two revisions to the amended DEIS,NOCRO and/or The Heritage may petition the Court to review the propriety of the Planning Board's requests for revisions and make such orders as may be appropriate with regard thereto. 8. The Planning Board shall, within 30 days after its receipt of a DEIS that is adequate with respect to its scope and content, or that adequately responds to the Planning Board's aforesaid requests for revisions, as the case may be, adopt a resolution that (a) determines that the DEIS is adequate with respect to its scope and content for the purpose of -8- 2859438.1 commencing public review, and (b) sets a date for a combined public hearing on the DEIS and the amended Site Plan Application. 9. Within five (5) business days after the Planning Board's adoption of the aforesaid resolution deeming that the DEIS is adequate with respect to its scope and content for the purpose of commencing public review, the Planning Board shall (a) issue a Combined Notice of Completion of DEISINotice of Combined Hearing on SEQRA and Site Plan Application (the"Combined Notice"), which Combined Notice shall provide for the holding of a public hearing on the earliest date, allowed by law,that is a regularly scheduled meeting of the Planning Board, (b) publish and file the Combined Notice, and (c) distribute copies of the Combined Notice and DEIS, all in accordance with 6 NYCRR §617.12. The Combined Notice shall establish a public comment period for the-DEIS, of a duration of no fewer than 30 days and no more than 45 days, commencing from the date of the first filing and circulation of the Combined Notice, and extending to a date no fewer than 10 days and no greater than 14 days after the close of the public hearing. 10. The aforesaid combined public hearing on SEQRA and the amended Site Plan Application shall be closed not more than 60 days after the hearing is opened. 11. Within 20 days after the close of the aforesaid combined public hearing, the Planning Board shall forward to The Heritage,by letter, the substantive comments received on the DEIS during the public hearing and the associated public comment period and the transcripts of the public hearing. -9- 2859438.1 12. Within 15 days after its receipt of the letter, list, transcripts, and substantive comments referred to in the preceding paragraph, The Heritage may advise the Town, in writing, whether it wishes to prepare a proposed Final Environmental Impact Statement ("FEIS") for the amended Site Plan Application. 13. If, within the 15-day period set forth in the preceding paragraph, the Planning Board either receives a writing from The Heritage declining to submit a proposed FEIS for the amended Site Plan Application, or, alternatively, does not receive written notice from The Heritage that The Heritage wishes to prepare an FEIS for the amended Site Plan Application, the Planning Board shall, within 45 days after the expiration of such 15-day period,prepare or cause to be prepared and file an FEIS for the amended Site Plan Application. 14. If, however, The Heritage advises the Planning Board, in writing, during the 15- day period set forth in Paragraph 12, above, that The Heritage wishes to submit a proposed FEIS for the amended Site Plan Application, then, within 30 days after its receipt, from The Heritage, of a proposed FEIS for the amended Site Plan Application, the Planning Board shall (a)review the proposed FEIS, (b) determine whether the proposed FEIS adequately responds to the substantive comments on the DEIS, and (c) advise The Heritage, in writing, of such determination. 15. If the Planning Board determines that the proposed FEIS does not adequately respond to the substantive comments on the DEIS, the Planning Board shall, within the 30- day period set forth in the preceding paragraph, provide to The Heritage a complete and -10- 2859438.1 detailed list of required revisions to the proposed FEIS. Thereafter, The Heritage shall, within 120 days of its receipt of such list, submit to the Planning Board a proposed revised FEIS or advise the Planning Board, in writing, that it declines to submit a further proposed FEIS. 16. The procedure for submission and review of proposed FEISs set forth in Paragraphs 14-15, above, may be repeated, within the same time frames, until either(a) the Planning Board advises The Heritage, in writing, that the proposed FEIS adequately responds to the substantive comments on the DEIS, in which case the Planning Board shall, within 10 days after such written notice to The Heritage or at the first scheduled Planning Board meeting after such written notice, adopt a resolution accepting the FEIS for filing; or (b) The Heritage advises the Planning Board, in writing, that it declines to submit a further proposed FEIS, in which case the Planning Board shall, within 45 days after the Planning Board receives such written notice from The Heritage, prepare or cause to be prepared and file an FEIS for the amended Site Plan Application. 17. Within five (5) business days after the Planning Board's adoption of a resolution accepting, for filing, an FEIS for the amended Site Plan Application, the Planning Board shall (a) issue a Notice of Completion of FEIS, (b)publish and file the Notice of Completion of FEIS, and (c) distribute copies of the Notice of Completion of FEIS and FEIS, all in accordance with 6 NYCRR §617.12. The aforesaid Notice of Completion of FEIS shall establish a public consideration period for the FEIS that extends to a date no fewer than 10 -11- 2859438.1 days and no greater than 14 days after the date of the first filing and circulation of the Notice of Completion of FEIS. 18. Notwithstanding 6 NYCRR §617.13, the Planning Board agrees that any additional fees or costs to be charged to The Heritage with respect to the SEQRA processes undertaken pursuant to this stipulation (other than fees for preparation of an FEIS by the Planning Board in the event that The Heritage declines to prepare the FEIS) shall not exceed $20,000.00. Pursuant to 6 NYCRR §617.13, if the Planning Board charges The Heritage for preparation of the FEIS, it will not charge The Heritage for review of the FEIS. 19. At the next Planning Board meeting after the expiration of the aforesaid public consideration period for the FEIS, but in no case more than 30 days after the filing of the FEIS, the Planning Board shall issue a findings statement, in accordance with 6 NYCRR §617.11, and shall file and distribute the findings statement, in accordance with 6 NYCRR §617.12, within five (5) business days after the issuance of the findings statement. At the same meeting at which it issues the aforesaid findings statement,but subsequent to issuance of the findings statement, the Planning Board shall render a determination on the amended Site Plan Application and any initial approval of the amended Site Plan Application shall be for a minimum of three (3) years' duration. 20. Within thirty(30) days after The Heritage's receipt of the Planning Board's determination on the amended Site Plan Application, The Heritage shall advise the Planning Board, in writing, whether it accepts or rejects the Planning Board's determination on the amended Site Plan Application or the conditions of such -12- 2859438.1 determination (hereinafter a"Notice of Acceptance" or"Notice of Rejection," as the case may be). 21. After the Planning Board has issued its findings statement and final decision, any project modification which was not addressed in the FEIS but which may have significant adverse environmental impacts, may be subject to a supplemental EIS (or a new EIS, if the modification is so substantial as to be essentially anew project). 22. In the event The Heritage issues a "Notice of Rejection"with regard to the Planning Board's determination of the amended Site Plan Application, The Heritage shall have, in addition to whatever other rights or remedies it may have, the right to continue or recommence this proceeding/action upon thirty (30) days advance notice to the remaining Respondents/Defendants. 23. If The Heritage issues a "Notice of Acceptance" with regard to the Planning Board's determination of the amended Site Plan Application, the Town and its various boards, departments, agencies, and officials shall issue: (a) all building permits (1) after issuance of site plan approval for the amended Site Plan Application and (2) within 10 business days after submission to the Town's Building Department of a complete application for such a permit; and (b) all certificates of occupancy within 30 days after (1) satisfaction of all requirements and conditions of(i) this stipulation that must be met prior to issuance of a certificate of occupancy, (ii) the site plan approval, and (iii) the building permit for the unit, building, or structure in question, and (2) submission to the Town's -13- 2859438.1 Building Department of a complete application for such certificate, sewage or wastewater approval of the Suffolk County Department of Health Services (hereinafter the "SCDHS"), an approved stormwater management control plan, pursuant to Chapter 236 of the Town Code, a plumber's certification, and an electrical certification. 24. The parties contemplate that, within the seven (7)-year period following the "so ordering" of this stipulation, the Planning Board shall grant, pursuant to Section 280-132 of the Town Code or otherwise, all reasonable requests for extension of any site plan approval and/or the time for completion of work proposed on the approved site plan, provided that The Heritage has substantially completed any work required to be completed by the time of such request(s). 25. The parties acknowledge and agree that the application fee for the amended Site Plan Application has been previously paid in full, and no additional application fee will be required. The parties further agree that(a) a total of$2,000,000.00 shall be payable by NOCRO and/or The Heritage for all park, recreation area, affordable housing,professional, and other fees associated with the Contemplated Development and the amended Site Plan Application, other than post-site plan building permit and inspection fees; (b) the Town Board and Planning Board shall issue all waivers (e.g., pursuant to Section 280-137[E] of the Town Code) as are or may be required to establish the foregoing $2,000,000.00 combined fee; (c) 1/130 of the aforesaid $2,000,000.00 total fees shall be paid to the Town upon issuance of each certificate of occupancy for the 130 residential units included in the -14- 2859438.1 Contemplated Development; and (d) the Planning Board may, if appropriate, require, as a condition of site plan approval, that a guarantee of performance be provided pursuant to Section 280-131(K) of the Town Code. Notwithstanding the foregoing, any balance of the $2,000,000.00 in total fees that is not paid as of the seven (7)-year anniversary of the "so ordering" of this stipulation shall be paid in full on or before such seven (7)-year anniversary date. 26. The parties acknowledge that (a) water supply mains and related facilities, owned or operated by the Suffolk County Water Authority, currently exist in the area of the Subject Property, and (b) the Town Board, by Resolution 2007-603 adopted July 3, 2007, adopted a map entitled "Southold Water Supply Plan Map," dated June 1, 2006, that, among other things, provides for public water service to the Subject Property. The Town and Town Board agree to, without any fee or charge to the Petitioners/Plaintiffs or their successors in interest, (a) allow the physical extension of the foregoing water supply mains and related facilities, as necessary, to the Subject Property, and (b)provide consent, if required, to allow the connection of the Subject Property to such water supply mains and related facilities. 27. NOCRO and The Heritage agree, for themselves and their successors and assigns, that, upon issuance of final site plan approval for the Contemplated Development, which approval is entirely beyond judicial challenge or review, the then owner of the Subject Property shall execute and record against the Subject Property, in the Office of the Suffolk County Clerk, a"Declaration of Covenants and Restrictions,"running with the land and enforceable by the Town, which shall set forth the obligations of NOCRO and The Heritage, -15- 2859438.1 and their respective successors, for payment of fees set forth in Paragraph 25 of this stipulation, the restrictions on occupancy set forth in Paragraph 2(d) of this stipulation, and the restriction on sale or transfer set forth in Paragraph 34(d) of this stipulation. The parties agree that any final site plan approval shall be contingent upon the recording of such Declaration in a form acceptable to the Town Attorney. Nothing in this paragraph shall be deemed to preclude the Planning Board from requiring, as a condition of site plan approval, such covenants and restrictions as the Planning Board typically requires in residential site plan approvals. 28. No site plan approval or other approval, authorization, or permit, or any extension thereof, with respect to the amended Site Plan Application or the Contemplated Development or any portion thereof shall require (a) dedication of any portion of the Subject Property, (b) establishment of any park, playground, recreational facility, conservation easement (other than such conservation easement as the Planning Board typically requires for the protection and/or maintenance of open space), and/or public right of access or use on any portion of the Subject Property, and/or (c)provision of public water supply to any lands other than the Subject Property. 29. The parties contemplate that the Town and its various boards, departments, agencies, employees, and consultants will, at all times after the date of"so ordering" of this stipulation, acknowledge and take into consideration the existence of this stipulation in all comprehensive plans, land use and zoning studies, and proposed and adopted changes in land use and zoning laws, ordinances, and other regulations that are prepared, considered, or -16- 2859438.1 adopted by the Town or its various boards, departments, and agencies. The parties further contemplate that, for a period of seven (7) years after the date of"so ordering" of this stipulation, any and all changes to Town laws, ordinances, and other regulations that affect the land use requirements or restrictions applicable to the Subject Property shall exempt the amended Site Plan Application, any site plan approved for the Subject Property, and development and use of the Subject Property in accordance with this stipulation and a site plan approval for the Subject Property. Notwithstanding the foregoing, this paragraph shall not be applicable to any changes in laws, ordinances, or other regulations that are adopted by the Town and/or its various boards, departments, or agencies more than three (3) years after the date of"so ordering" of this stipulation unless, within such three (3)-year period, building permits shall have been issued or applied for with respect to at least 20% of the residential units approved through the Site Plan Application and certificates of occupancy shall have been issued or applied for with respect to at least 10% of the residential units approved through the Site Plan Application. 30. Notwithstanding any other provision of this stipulation, any and all dates and time periods set forth in this stipulation for the holding of hearings, the taking of actions upon petitions and applications, and other actions and procedures may be modified or extended, without need for amendment of this stipulation or any further order of the Court, upon the mutual consent, in writing, of the Petitioners/Plaintiffs or their respective successors and assigns and the applicable board, agency, or official of the Town. -17- 2859438.1 31. The Town and its various boards, agencies, and officials (a) shall not oppose the Contemplated Development and the amended Site Plan Application before the Suffolk County Planning Commission and in connection with any report or recommendation issued by the Commission, and (b) shall not object to any applications of NOCRO, The Heritage, and/or their successors or assigns, for or in connection with the Contemplated Development or development pursuant to any site plan approval issued for the Subject Property, to non- Town agencies and officials, including, but not limited to, applications to the SCDHS for approval of water supply and/or sewage and wastewater disposal facilities, applications to the New York State Department of Environmental Conservation and/or the SCDHS for State Pollutant Discharge Elimination System ("SPDES")permits, and applications to the Suffolk County Water Authority or any other water purveyor for water service or for construction or extension of, or connection to, any and all water mains and/or other facilities to provide such service, so long as any such application is consistent with the Planning Board's SEQRA findings and the Planning Board's final site plan approval. 32. The parties contemplate that, except as otherwise provided in this stipulation, any and all applications for approvals, permits, authorizations, certifications, and extensions in connection with the amended Site Plan Application or the Contemplated Development will be reviewed, processed, and determined by the Town and its various boards, departments, agencies, officials, employees, and consultants in accordance with the site plan review procedures of the Town Code, as such procedures exist or are in effect on the date of first signing of this stipulation, notwithstanding any subsequent changes to, or additions to, such -18- 2859438.1 procedures, and the parties further contemplate that the Town Board and Planning Board will ensure that any subsequent changes to such procedures recognize and provide that development of the Subject Property in accordance with either the Contemplated Development or any site plan approval is exempt from such changes. Notwithstanding the foregoing, any such application shall be subject to the fees applicable at the time of the filing of the application. In addition, this paragraph shall not be applicable to any such changes adopted by the Town and/or its various boards, departments, or agencies more than three (3) years after the date of"so ordering" of this stipulation unless, within such three (3)-year period, building permits shall have been issued or applied for with respect to at least 20% of the residential units approved through the Site Plan Application and certificates of occupancy shall have been issued or applied for with respect to at least 10% of the residential units approved through the Site Plan Application. 33. In the event that any one or more of the following occur,NOCRO and/or The Heritage shall have the right to declare this stipulation null and void (upon which declaration the judicial stay set forth in Paragraph 1 of this stipulation shall immediately and automatically dissolve) and thereafter continue or recommence this proceedinglaction, upon thirty(30) days' advance notice to the remaining Respondents/Defendants: (a) any procedure or action that is required or contemplated, by this stipulation, to be followed, taken, or completed by the Town, by the Town Board, by the Planning Board, or by any other board, department, agency, official, employee, or consultant of the Town (1) is not actually followed, taken, or -19- 2859438.1 completed, or (2) is not followed, taken, or completed within or during any time period provided by this stipulation, unless such time period shall have been extended or modified by prior written agreement, as provided for in Paragraph 30 of this stipulation; (b) any procedure, action, or requirement that this stipulation either prohibits or contemplates will not be followed, taken, or imposed by the Town, by the Town Board, by the Planning Board, or by any other board, department, agency, official, employee, or consultant of the Town is actually followed, taken, or imposed; (c) any site plan determination for the Subject Property requires treatment of sanitary waste or wastewater by means other than clustered individual sanitary disposal systems; (d) any site plan determination for the Subject Property requires treatment of sanitary waste or wastewater from outside the Subject Property; (e) NOCRO and/or The Heritage issue a"Notice of Rejection," as set forth in Paragraph 20 of this stipulation; and (f) this stipulation and/or the Planning Board's site plan determination for the Subject Property is/are annulled or modified by any one or more judicial or administrative actions or proceedings. 34. Nothing in this stipulation shall prevent the Petitioners/Plaintiffs (a) from using the Subject Property, at any time, for any purpose that does not require a permit, approval, or other authorization from the Town, (b) from using the Subject Property pursuant to Town -20- 2859438.1 permits, approvals, and/or authorizations, (c) from making applications with respect to the Subject Property or the development and/or use thereof to any jurisdiction, governmental subdivision, board, body, department, agency, or official other than a board, body, department, agency, or official of the Town, and/or(d) from selling or otherwise transferring the Subject Property to any person or entity at any time, provided, however, that (1) the Town Clerk shall be provided written notice of any such sale or transfer of the Subject Property, and (2) any such sale or transfer must be expressly made subject to the terms and provisions of this stipulation. 35. Except to the extent rights are specifically limited by this stipulation, nothing in this stipulation shall be deemed to constitute a waiver of, or to preclude the Petitioners/Plaintiffs from exercising or asserting, any and all causes of action, claims, rights, and remedies that the Petitioners/Plaintiffs may have with respect to a site plan determination, the approved site plan, and/or the subsequent development and use of the Subject Property. Notwithstanding the foregoing, in the event the Petitioners/Plaintiffs issue a Notice of Rejection of a conditional site plan approval, the Petitioners/Plaintiffs' remedies, with respect to such approval, shall be limited to challenging the conditions of such approval, 36. The Court shall retain jurisdiction of the parties to and the issues in this proceeding/action for purposes of interpretation and/or enforcement of the terms and conditions of this stipulation, and the continuance or recommencement of this proceeding/ action, as provided in this stipulation. -21- 2859438.1 1 37. The parties contemplate that, prior to execution of this stipulation by any party, the Town Board, as lead agency, shall have completed review,pursuant to SEQRA and the SEQRA regulations at 6 NYCRR Part 617 of the proposed execution of this stipulation. 38. This stipulation, upon its "so-ordering," shall constitute a judgment of the Court that "special facts" exist, which entitle the Petitioners/Plaintiffs, except as otherwise provided in this stipulation, to develop and use the Subject Property in accordance with the Town Code and other provisions of law and land use regulations that existed prior to adoption of the aforesaid Local Law 1-2009, 2-2009, and 3-2009, and the amended Site Plan Application shall be reviewed based on such preexisting provisions and regulations. This judgment shall be immediately and automatically vacated upon the continuance or recommencement of this proceeding/action pursuant to this stipulation. Such vacatur shall be without prejudice to issuance of a new judgment of"special facts" in the event the Petitioners/Plaintiffs are successful after the continuance or recommencement of this proceeding/action. 39. Nothing in this stipulation shall be deemed to constitute an admission by or against any party to this proceeding/action. 40. Notwithstanding anything in this stipulation to the contrary, this stipulation shall be deemed to have been drafted by all the parties hereto. 41. In the event of any inconsistency between the terms of this stipulation and the terms of the Town Code, the terms of this stipulation shall control. -22- 2859438.1 42. If any provision of this stipulation is invalidated or deemed or adjudged unenforceable, the remaining provisions of this stipulation shall remain in full force and effect. 43. This stipulation shall be binding upon, and enforceable by, the successors and assigns of the parties hereto. 44. This stipulation may be signed in counterparts. 45. The parties.acknowledge and agree that, following its execution by all parties, this stipulation will be submitted for"so ordering"by the Court. The parties further acknowledge and agree that no portion of this stipulation shall be effective unless and until the Court shall have "so ordered"the entirety of the stipulation without modification or redaction. 46. Except as otherwise specifically provided for in this stipulation, no provision of this stipulation may be waived or modified except by a writing signed by all the parties and "so ordered" by a Justice of the Supreme Court, Suffolk County. Dated: Hauppauge, New York , 2014 NOCRO, LTD. "�Y4 , President Date of Signature: / /y -23- 2859438.1 THE HERITAGEA CUTCHOGUE, LLC By: , Managing Member Date of Signatu e: jIN PLANNING BOARD OF THE TO OF SOUTHOLD By: Chairman,pursuant to Resolution of the Planning)Board of the Town of Southold, duly adopted on , 2014 Date of Signature: ( ��� TOWN:4"F THE TOWN OF SOUTHOLD, and TOUTHOLD By: Scll, Town Supervisor,pursuant to Resolution aOt U-`1 5 of the Town Board of the Town of Southold, duly adopted on,�,.00h�2 r 4 , 2014 Date of Signature: __q,/1�Iy SO ORDERED ON , 2014 r Honorable Jerry Garguilo, Justice of the Supreme Court -24- 2859438.1 I I I m-4 I NOW FORMERLY OF Ln NOW/FORMERLY OF 1901 .44' (DEED) 00 ESTATE L BERTHA KURCZEWSKI I W 1904.80' (ACTUTAL) J— — FRANK MACHINCHICK 3 8°3 0'5 0"E (DEED) � .�, ��-� � ... .�.��-- — — ------- -- �. ..r•-- — — ---- .� .�. �.�.— .� ... � � � c�1 S ( u' N ( } CD S38°24'20"E (ACTUAL) I — '� v N_ w O m u V � W C,SJ O ------------------- X Z --- ----- - - - , J - 110 < I 2`L_ N � 1 i----------------------- -- �� � O NOW 2AHAERLY OF � O O O CHARLES L & JEAN T. () :E Ln Ln S37'04'4 0' E_ _ 2 7 3.6 8' 0 —� o z 07 J CJ1 CN U'_ 0 Q0 GAZEBO C7 M CD r\j Q0 = l Y I m = v v C:44A/FORMELY F (n D`SOWN OF SO THO F_ 1 :. ' 95.00' ° °r GOLF CART � 1 ` ° ^ PARKING OD \°/ I 01 r\� � � CA - - o GUARD A o- Y _ 1 B Cil CJI / �E \�Or-r'.� H OOT Gm 5 - I Cy u G ✓ ss ----I NOW/FORMERLY OF LOADIN COMMUNITY ^?, �� ° 021190 `E WILLIAM M. BEEBE , CENTER ' �� 1 -------- ------------- 0 �pF NE W& WILLIAM F. HEANEY W SOP N N / TENNIS COURT TENNIS COURT • / 0 POOL �/ C71 CP 9 in L2 S37°13'30"E (DEED) - Il � °r coxx � 5 S37°04'30"E (ACTUAL 221 .47' 13 30rW 400.00r D 0 Nm / rod \o` �,i +-� D ¢ Z Ln N ,, - ;, NOW/FORMERLY OF m w w M L` I I� ROMAN CATHOLIC I I M O I 136' O CHURCH OF N I i r L �2 - CA C14 PROP ETB CK SACRED HEART o o WSM L N m z I I r r r u Z) w \ I J J J Q IL I \ \ I � acn I \ \ I OW/FORMERLY OF LON SLAND VINEYARDS INC. I I I I^ � \\\\\\ IEMERGENCY AgCESS ROAD C-7 \\\\\\ GRASSED BEARING AREA WITH D SUB SURFACELo _ O I I \\ \\ I L( 0 0 I u C..> } z _ PROPOSE BUILDING I \ \ H SETB93:CK I \ \ � W Nz I I \\ \\ z ¢ o _ I I _ — I I W O I I I ------- — c 1 I --------------------- — O ' --------- Z_ ----------------------------------------------------------Z------------- 9------ --- -------------- _ 9 -------------- -rr ------------------- --- 0 5 \1� \\1 z 0 0 O ¢o o 1-r --EMERGENCY ACCESS ROAD =Y � °'u �I ' GRASSED AREA WITH LOAD m" D0 � Li 8 1,8BEARING SUB-SURFACE I� � ' I U U i I CY a N36'54 20"W 6. 2009,51 ' (DEED) � I I I 2009.22' (ACTUAL) I Q I I �\�R. I I I I I NOW/FORMERLY OF NOW/FORMERLY OF NOW/FORMERLY OF NOW/FORMAERLY OF NOW/FORMERLY OF NOW/FORMERLY OF NOW/FORMERLY OF NOW/FORMERLY OF (� NOW/FORMERLY OF HIGHLAND ROAD CORP, LL1 COOK, DI FRANCIS D ANUEYS JR. STANLEY JR, I ALDOA& LOUISE I PAUL M &LCONCETTA I HENRY & DEBORAH I I JOHN & SABEL I OO JULY 2012 & MOHRING RT. I I DAVID A. I FRANCIS J. I ST I SCaI e: I O © 1" = 80'-0" Q & DONNA M. do MARIE C. I I � I O J I I I q I drawn blq: JU CHARLES KUEHN I I 0 I checked bla: ryti m SANITARY FLOW CALCULATIONS: project no: 210047 ALLOWABLE SITE FLOW 2,011,1655 SF X 75% X 300 GPD/UNIT = 22,625 GPD �� C SITE DATA 20,000 SF/UNIT TOTAL SITE AREA = 2,003,582 S.F. ( 45,9 ACRES ) PROPOSED FLOW SITE DEVELOPMENT PLA N c sheet # 1" GREAT PECONIC ®AY 2,000 S.F. ( 2 ATTACHED ) = 40 UNITS 40 ( 2,000 S.F. ) CONDO UNITS 0 225 GPD/UNIT = 9,000 GPD = 80'-0" � 1,600 S.F. 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N N I wI OOG / NOW/FORMERLY OF �MUNTY Z. / w . wyywwwy / WILLIAM M. BEEBE CENTER ������w�����& WILLIAM F. HEANEY '91 sCW^LMMJUJWmW(�9 TENNIS COURT TENNIS COURT POOL Iw n S37°13'30"E (DEED) w O 4'3O"E (A 400.OO, S37°O13 30„W DM251 , 375 S / rnZw w w w y Z w y O0 WZ ZO 99 //W 4 UJ Ld Z �����������' — -"L-L�� ° oa Ny w y ' — NOW/FORMERLY OFO y —. ---_-- — ROMAN CATHOLIC � � —W————.—r——— rO CHURCH OF SACRED HEART L , 4-1 0 UDUJ Q N M J OW/FORMERLY OF LON SLAND VINEYARDS INC. / y O Wu^O w Ln 8 1,l 0 `lYw0L/V �0 " O Z W// C7 / ZOO L Y------�L---1---Y-r� ----------- O O �0 y582 ♦ 300 U + y y y y y (A w y y N36°54'20"W 009.51 ' (DEED) 2009.22' (ACTUAL) Q da , NOW/FORMERLY OF NOW/FORMERLY OF NOW/FORtMERLY OF NOW/FORMERLY OF NOW FORMERLY OF NOW FORMERLY OF NOW/FORMERLY OF I NOW/FORMERLY OF JULY 2012 NOW/FORMERLY OF COOK, DIMNEY' SOSSHELBY, SIKHIGHLAND ROAD CORP, w I FRANCIS J. STANLEY JR. STANLEY JR, ALDO & LOUISE PAUL M. & CONCETTA HENY & DBORAH JOHN & SABEL scale:& MOHRING RT. DAVID A. I z & DONNA M. MARIE C. Q-i drawn bq; w CHARLES KUES_O~H NQ checked bl+ m project no. SITE DATA � o210047 SITE DATA TOTAL SITE AREA 2,003,582 S.F. 45.9 ACRES TOTAL SITE AREA 2,003,582 S.F. ( 45.9 ACRESTOTAL OPEN SPACE SHADED AREA1 ,011 ,075 S.F. 50.46 % OPEN SPACE PLAN sheet # 2,000 S.F. 2 ATTACHED ) = 40 UNITS 1 80'-0" GREAT PECONIC BAY C 1,600 S.F. 2 ATACHED ) = 90 UNITS I SD - 2I TOTAL UNITS PROPOSED = 130 UNITS KEY MAP drawing tide SCALE: 1” = 0.5 MILE OPEN SPACE PLAN