These comments were developed by the Kentucky Resources Council, Inc., (KRC) on behalf of the Floyds Fork Environmental Association, for consideration by the Oldham County Fiscal Court during deliberations on the proposed ordinance relating to wastewater treatment capacity assurance.
KRC supports adoption of an ordinance that requires consideration of the adequacy of wastewater treatment capacity in approval of rezoning and subdivision development, and believes that the Fiscal Court, Oldham County Planning Commission and Sewer Ordinance Committee are acting prudently in adopting an ordinance to make wastewater treatment capacity availability a pivotal consideration. The historic failure of communities to link essential infrastructure development with land use changes and subdivision development has resulted in unnecessary economic and ecological costs that could be avoided through the approach proposed in this ordinance.
While KRC supports strongly the adoption of this ordinance, there are several changes that we would recommend be made prior to approval of the ordinance, in order that the ordinance might better serve the goal of linking capacity development to land development. Specific comments follow, referenced by Part and Section:
Part One Section 1
A. Remove the phrase “that, to the maximum extent practical,” since it weakens the requirement that capacity be available for the development, and provides no standard for judging “practicality,” potentially opening a decision approving or denying a rezoning to challenge.
B. Remove “can reasonably be expected” and substitute “it is demonstrated” since the intent here is to require a showing that capacity will be available to meet the demand. “Reasonably be expected” is an unnecessarily vague standard.
Part One Section 2
A. Revise the first sentence to read:
“As part of the consideration of any request to rezone property, the adequacy of available wastewater treatment facilities and capacity to support the zoning change and proposed development shall be considered.”
This language clarifies the goal of the review.
B. Change “may be considered” in the second sentence to “shall be considered,” since the purpose of the ordinance is severely compromised if a rezoning could be approved notwithstanding the lack of available wastewater treatment capacity.
Part One Section 3
In the third paragraph, some allowance should be made for developments proposed to be constructed using innovative measures to lower wastewater treatment demand, by including after “applicable sanitary sewer service provider” the phrase “or the applicant for rezoning”.
Part One Section 4
In the first sentence, replace “shall be” with “is”.
Part One Section 5
The mitigation section provides an opportunity for developer to avoid a denial of rezoning in cases where the already-approved, proposed and existing average flows would exceed the available treatment capacity. In order to satisfy the mitigation requirements, the applicant must demonstrate that plans (preliminarily approved by the state DOW) and funding are in place for a new or improved facility which will be completed within two years after the rezoning approval, and that the new capacity will be sufficient to serve the proposed development.
KRC is very concerned with the effect of this section for several reasons.
First, allowing approval of a rezoning where the capacity to properly treat average wastewater flows is lacking undercuts the laudable goal of the ordinance by allowing wastewater discharges which the community knows will at full build-out cause exceedances of the capacity of the system under average flow conditions for up to two years.
Second, the responsibility of the developer is limited to making a demonstration at the time of rezoning that there is proposed capacity under development. Delays in final approval, shortfalls in funding, or other impediments could lengthen the gap between the rezoning approval and creation of appropriate capacity, and there is no mechanism to assure concurrency of the demand and creation of capacity to serve the demand.
In order to prevent this structural gap of up to two years between development approvals and creation of appropriate capacity, the mitigation section should be revised to allow rezoning approval but to restrict and phase, if necessary, approval of occupancy until the capacity becomes available.
Thank you for the opportunity to submit these comments.