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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Planning Commission Denies Request For Gas Station in Belknap Neighborhood  Posted: August 20, 2010


Chairman Carlson, Commissioners, my name is Tom FitzGerald, and I reside at 1600 Dundee Way in the Belknap Neighborhood, 40205. I am here representing the Belknap Neighborhood Association, and have provided Ms. Senninger with a list of the witnesses that will follow my brief outline of the oppposition.

Mr. Price...Glenn, is correct that this is a disagreement among friends. Krogers has been an important part of the retail fabric of this neighborhood, and whether you approve or deny this request, the Belknap Neighborhood Association will continue to work with Krogers to maintain and improve the quality of life for our residents. Yet even friends have disagreements, and in this case, we respectfully DO disagree with the wisdom of the proposed land use and of the request to amend several Binding Elements in order to accommodate it.

This case comes to you on a request to amend several binding elements that attached to the site and were negotiated and agreed to by the Applicant in the case of 9-96-99 with the neighborhood and the Commission.

The Land Development Code at Chapter 11 Part 4 7E outlines the procedures and scope of your review of such requests.

E2 outlines factors that you MUST consider, but is not exclusive of other factors that you MAY take into consideration. Among them is one factor that is key here – 2e, which provides in full that you are to consider

“The compatibility of the overall site design (location of building, parking lots, screening, landscaping) and land use or uses with the existing and projected future development of the area.”

If for no other reason, this request should be denied because it increases the intensity of the land use in a manner not compatible with the residential uses on adjoining and nearby properties.

Among the facets (policies) of compatibility outlined in the Land Development Code at Guideline 3 particularly key to this case are odor and air quality emissions, traffic impacts on nearby existing communities, noise, lighting, and handling of hazardous materials.

There are several factors that I would ask that you consider in your decision:

1. The precedential effect of altering Binding Elements that were previously negotiated by the landowner with neighbors, without the consent of all parties;

2. The lack of a full traffic study and the possibility that actual impacts on traffic flow and Levels of Service at the various signalized and unsignalized intersections and on the property may be greater than predicted; and

3. The incompatibility of the proposed removal of selected Binding Elements and installation of a gas fueling station with the surrounding land uses.

As to the first issue, it is true that this applicant, Kroger, was not the applicant in the case in which the Binding Elements were negotiated, but that is unimportant. The Binding Elements run with the land, and any subsequent tenant leasing that land, such as Krogers, takes the lease with full knowledge of such constraints on land use.

You are being requested here to unravel and pluck out selected strands of a package of carefully negotiated binding elements. As you know, Binding Elements are very important tools for assuring compatibility of new developments with existing land uses, particularly where you have different intensities of land uses next to each other, such as residential and commercial, or residential and industrial.

As the Staff Report notes, the 20 Binding Elements in Case 9-96-99 were negotiated between the applicant in that case, the neighbors, and the Commission.

If you allow a tenant of a property that was rezoned by the landowner contingent on 20 Binding Elements to selectively eliminate those binding elements that are considered inconvenient, you will send a message that will reverberate throughout this community that no neighborhood association, and no neighbor, should ever place faith in or rely on Binding Elements, since they can be swept aside at a future date when a new tenant or landowner finds them inconvenient.

With respect to the traffic report that was developed, the report raises several concerns.

The first is that, according to the report, the number of trips per day that will be added by the fueling station is 198, two less than would have triggered a full traffic study. Yet the Report does not address both scenarios – with and without the opening of a cut through to Trevilian through the Walgreen’s lot, and the possibility of changes in the number and routing of trips to the property, as well as impacts on the level of service and queueing at the various intersections.

The second is that the report assumed on page 3 that the pass-by traffic, which are those folks already driving by, will be 58%, yet according to the ITE Trip Generation Manual, 58% of the AM trips will be pass-by, but only 42% of the PSM trips should be assumed to be pass-by as opposed to mixed use or new trips.

With respect to the number of Kroger customers who are “mixed use,” that is people who come to the property to shop at Krogers, CVS, or the other stores in this complex and then purchase fuel, as opposed to new trips or pass-by traffic, the URS report relied on internal Kroger data which is nowhere in the record, to conclude that 25% of the gas station customers would be mixed use – the ITE Trip Generation Manual suggests that the number assumed should be 20%.

Using the data from a 4 MPD Kroger Center to predict the trips for this proposed 5 MPD gas station, URS came up with 198 trips. Using the recommended ITE numbers of 20% mixed use and the lower 42% pass-by, it is quite possible hat the number of new trips may be in excess of that anticipated. A full-blown traffic study would answer some of these key issues that are left unaddressed; particularly the impact on level of service both with and without the cut through, on Trevilian, Wrocklage, Taylorsville and Bardstown Roads.

The final issue is that of compatibility. I have previously submitted a letter dated July 22, 2010 highlighting several concern, those being the potential for groundwater contamination with gasoline constituents, particularly benzene, from the development of a retention basin that will catch runoff from the gas pump area that will include oil, grease and gasoline. Use of a compacted clay liner for the basin will not resolve the problem since even compacted clay does not attenuate the migration of certain constituents in gasoline, such as benzene. Contamination of the vadose zone or groundwater at the site is of particular concern because leakage or infiltration of benzene into the soil adjacent to residential properties may cause contamination of any PVC plastics service lines inasmuch as benzene can permeate any connecting lines that for any residences that are constructed of PVC or other plastic piping, despite those lines being fully pressurized. Siting of such a facility, with the potential for surface and underground spillage, in such close proximity to residential properties should be avoided.

Additionally, emissions from refueling (from idling vehicles, gas cap removal and spillage) may adversely affect nearby residential properties, and should be assessed to assure that ambient concentrations of any STAR-regulated toxics and criteria pollutants do not exceed health-based concentrations. While the prevailing winds may be to the northeast, we are a community prone to thermal inversions and to stagnant are, which will cause localized increases in ambient concentrations of particulates and volatile organic compounds that may elevate existing risks posed by the proximity to the heavy traffic of the Bardstown Road corridor.

Finally, there is the question of compatibility of the handling and storage of flammable materials at a gas station in such close proximity to residential properties and to an already congested intersection. If a stack of VCR tapes or DVDs fell from the shelves at the former video store, the public's health or safety interest was not seriously implicated. By contrast, a spill of gasoline from the unloading of fuel from tankers to the underground atorage tanks, or from drive-offs where the nozzle has not been removed, could have serious local impacts in terms of health and safety.

For each and all of these reasons, I would ask, on behalf of my client, the Belknap Neighborhood Association, that you deny the request to amend Binding Element 18 and reject the proposal to construct a gas station on the property in question.

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