Brookhaven Rail Terminal
closes on adjacent property


Refrigerated, dry bulk storage targeted for Yaphank site;
environmental measures not yet addressed

THE LONG ISLAND ADVANCE - January 26, 2012

By LINDA LEUZZI 

Brookhaven Rail Terminal spokesperson Judy White confirmed it closed on property adjacent to their 28- acre site off Sills Road and the Long Island Expressway at the end of last year, bringing the total up to 88 acres. They may also still be in the running to purchase the former Legacy Village 95-acre parcel. The adjacent property could serve as a possible repository for refrigerated and dry warehousing, said White. “We’re in negotiations with people in the baking industry to bring in bulk flour; we’re looking to reduce their transportation costs,” she said. “There’s a major electric component company of electrical parts looking to store those parts in large containers, and people in the construction industry looking into bringing their supplies in by rail.” 

White was asked how much land would be cleared. “I can’t really give you a specific number,” she answered. “Of the current site, I understand 33 percent will be re-vegetated with trees. “We will continue to work with the Town of Brookhaven to meet their site requirements and needs.” Brookhaven Deputy Chief of Staff Stacy Epifane Sykes said that the town hadn’t formally received any plans from Brookhaven Rail Terminal regarding the new property. While the clearance remains a dangling question,  the Legacy Village parcel made to the county last year that was never solidified. 

Deputy County Executive Jon Schneider said BRT didn’t make the offer. “It is being reviewed,” Schneider said. “We’re looking to get the best sense of the property. The 2011 budget had included $15 million for land sales in Yaphank. It does include some amount of the Legacy Village property but doesn’t specify how much. That means it takes a while to close the books from the previous fiscal year. If everything else worked out, you’d still be $15 million in deficit for selling some portion of the Yaphank property and that did not happen. In 2012 the budget included $18.1 million for land in Yaphank and Selden. We’ve been approached by a third party, but technically speaking, we don’t have an offer from BRT.” 

“I don’t want to sell it on the backs of the people who live in Yaphank, especially when there are environmental issues,” Legis. Kate Browning told the Advance. “Whatever they plan to do with the Legacy Village parcels, in my opinion, anything that needs to be done should be in concert with the Carmans River Protection Plan.” The BRT was touted as a boon to the area last September in its mission to reduce the number of long-haul trucks off the road via the terminal, a 3.4- mile spur off the Long Island Railroad. The principal commodity shipped in is crushed stone aggregate. White said about 25 construction jobs are underway; there are 10 to 15 permanent jobs and the company is committed to hiring locals and veterans, including BRT’s new assistant facilities director, U.S. Marine Veteran Christopher Flynn. 

But civic groups like the Yaphank Taxpayers & Civic Association and Affiliated Brookhaven Civic Organization say BRT’s initial segue into the community wasn’t properly vetted from the start, pointing to a legal tug-of-war that began in Oct. 2007. According to news accounts, the state Department of Environmental Conservation halted work at the site after 18 acres of land had been cleared and sand had been excavated as a precursor for building a rail-to-truck transfer site, without government approvals, by U.S. Rail Corp. of Toledo, Ohio, the lessee, who was working in concert with Sills Road Realty, the lessor, a group of local asphalt plant and construction business owners. U.S. Rail’s defense was that federal law allows such projects without state and local permits. “Fran Hurley, the president at the time, received calls when the trees starting coming down,” said Sharon Weismann, Yaphank Taxpayers Civic Association treasurer, of the 2007 tree clearing.

“I received dozens of calls after the BRT opening last September saying that the Yaphank Taxpayers Association supported them. We did not.” “This is a fundamental question of whether the communities will plan what they want in their communities, or is this the deal on the table, to create 400 acres of railroad in Yaphank,” said ABCO president MaryAnn Johnston. “It’s in the heart of the Carmans River watershed. We’re not against jobs. We need a public hearing and a real good look at the environment.” 

A July 18, 2008 U.S. District Court Report and Recommendation by Sills Road Realty, LLC, U.S. Rail Corporation, Watral Brothers, Inc., Pratt Brothers, Inc., ADJO Contracting Corp and Suffolk & Southern Rail LLC asks for a preliminary injunction against the Town of Brookhaven from taking action to prosecute appearance tickets issued Oct. 4, 2007, or from issuing new appearance tickets in connection with the construction or operation of a rail terminal plaintiffs sought to build in Yaphank and taking any other acts to interfere with or obstruct the construction and operation of BRT. The town had ammunition, according to a Nov. 5, 2007 verified statement from town attorney Robert Quinlan. In support to the town’s reply for petition for stay, Quinlan states: “Petitioners had pulled what could be characterized as a ‘classic developer’s trick’: build now and beg forgiveness later.

Here, however, forgiveness should not be forthcoming. Eighteen acres of land have been clearcut and hundreds of cubic yards of materials have been mined without any environmental study as to its impacts as required by both NEPA (National Environmental Protection Act) and SEQRA (New York State Environmental Quality Review Act) and what, if any, measures that could have been taken in mitigation. Additionally, such clearing was done in violation of town codes relating to clearing, site plan review, construction activities and sand mining.” 

In a Nov. 21, 2007 U.S. Court of Appeals declaration by John Turner, then Brookhaven’s director of the Division of Environmental Protection, in opposition to Sills Road Realty, LLC, Suffolk & Southern Rail Road LLC and U.S. Rail Corporation’s motion for a preliminary injunction, Turner stated that, if the project was submitted to his division for review, a positive declaration under SEQRA would be required.

He stated, “The need for a positive declaration stems from, among other things, the fact that this property is in a deep flow recharge zone and is ecologically part of the Long Island Pine Barrens and therefore development of the property may cause significant hydrological and ecological impacts.” His comments also included the following: “Prior to the preparation of an EIS, a scoping session typically takes place with notice to the public. At that session, public input would be solicited as to the relevant topics that would be considered in the EIS.” 

A March 23, 2010 town board resolution changed the game plan. According to Resolution 2010-312, a SEQRA Negative Declaration — authorization to settle certain matters between the Town of Brookhaven, Sills Road Realty LLC, U.S. Rail Corporation, Watral Brothers, Inc., Pratt Brothers, Inc., ADJO Contracting Corp. and Suffolk & Southern Railroad LLC — was passed unanimously. As part of the settlement, the resolution stated, Sills Road Realty, et al, agreed to mitigation measures, including the installation of dust control measures; retention of five inches of storm water; establishing a vegetated buffer around the perimeter of the site to reduce noise and visual impacts, as well as a 50-foot landscape buffer along the site frontage to reduce noise and visual impacts; and re-vegetating 30 percent of the site.

The rail freight terminal would have the capability of handling the unloading and temporary storage of bulk commodities consisting principally of crushed stone aggregate, merchandise freight, and intermodal shipping containers. No collection, sorting, separation, processing, incineration, treatment, management, disposal or transport of solid waste and construction and demolition debris unless required under federal law. 

The proposed project was marked “no” in a number of categories, including affecting the quantity or quality of existing or future open spaces or recreational opportunities, and impact on critical environmental areas. A letter to Cynthia Brown, chief, section of administration for the Surface Transportation Board, from the Washington, D.C. law offices of John D. Heffner, PLLC on April 26, 2010, supplemented a joint letter petition filed April 23, 2010 on behalf of U.S. Rail Corporation and the Town of Brookhaven to provide a Stipulation of Settlement which resolved the Brookhaven Rail Terminal litigation. It stipulated that the town was to receive $1 million, in one installment of $200,000 payable on March 1, 2011 and in nine installments of $88,888.88 payable on each Jan. 1 thereafter. 

Appearance tickets were made null and void, as well as taking any other action that interfered with the construction or operation of the rail terminal. Additional town site plan approval was nixed. Quinlan told the Advance that when the town initially became aware of the project and the clearing, they issued summonses. 

“We believed we had authority over land use matters at that time, that it was not something the Surface Transportation Board had sole control over,” Quinlan said. As proceedings developed with the application, it appeared to the town that the ultimate decision of the STB would be in favor of the Sills Road Group.

“We tried to alleviate as best we could with some of the clearing and other concerns. And because we were advised we’d be unsuccessful in the lawsuit in federal court with Sills Road Realty and before the Federal Transportation Board, we entered into a settlement that gave us the $1 million as well as some assurances as to what the facility would be used for and some ability to review their site plan.”

Quinlan said that would be for the initial 28-acre site. As for the additional property, “If they’re expanding and purchasing other properties, the town will look at the uses and if they are not railroad uses covered by the STB, the town’s position is that we would require a normal compliance with our land use procedures,” he said. “On the other hand, if we are preempted by federal regulations and statutes, the rail facility would have to comply with the National Environmental Policy Act, which is similar to our SEQRA.”