Flying J responce at the special meeting to the ZBA

This was created using OCR and may have errors and/or typos that were not in the original document. This was presented to the Preble ZBA on 9/28/2000 by Ken Teeter of Resource Associates along with maps that show water flow towards the south and east. Towards the Knapp farm and Preble. One portion of one of those maps is at the bottom of this page. See the first report.

FLYING J TRAVEL PLAZA

ISSUES AND INFORMATION CONCERNING THE WASTEWATER

TREATMENT SYSTEM IN THE BUFFER ZONE

INTRODUCTION

At present, a portion of the proposed buried wastewater treatment system is located along the southern boundary line of the project site which is within the 100' wide Buffer Zone in that area. This 100'wide strip is so designated due to the fact that the project property is zoned Commercial (C) and the abutting land to the south is zoned Agricultural (AG). The adjacent land owners are Paul and Maureen Knapp.

Upon request from the Town Planning Board, Mr. Doug Staley, the Town of Preble Code Enforcement Officer, issued a letter stating that the placement of the buried wastewater treatment system within the Buffer Zone was not in violation of the Town Zoning Ordinance and is permitted. Subsequent to Mr. Staley's decision, three individual landowners have petitioned the Town Zoning Board of Appeal (ZBA), to overturn Mr. Staley's decision and not permit the buried system to be located within that same 100'wide zone.

As required by law, the ZBA is asking for public comments on this issue so that they can make two distinct determinations. First, the ZBA must strictly review the applicable information presented to determine whether each of the three petitioners have what is called "standing". "Standing" is whether the petitioner is legally entitled to contest the Code Officer's decision and ask that it be reversed. To determine "standing", the petitioner must demonstrate that they in particular have been aggrieved by the Code Officer's decision. As more fully discussed in the Memorandum of Law (September 5, 2000) and submitted to the ZBA on 9/7/00, there is a two part test for what that means. First, the petitioner must demonstrate that they will suffer harm or injury specific to themselves or their property, not the community at large, as a result of the present Code Officer's decision. Second, the petitioner must demonstrate that the interest they have asserted in this particular issue (a buried wastewater system within the Buffer Zone along the south boundary of the site), is in fact within the "zone of interest" that the regulation was designed to protect. In other words, does the Town Ordinance regulation concerning a Buffer Zone apply to the property of the petitioner. Once the "standing" issue is resolved, and if granted, the ZBA will then review the remaining facts and information as it relates to the actual interpretation of the Buffer Zone regulation itself.

The balance of this report will focus on several issues. Included will be a general discussion of the petitioners letters to the Town, information related to the harm or injury each of the petitioners would suffer, the applicability of the Town Buffer Zone regulation, and information specific to this location as it relates to the movement of both surface water and groundwater through the area. A variety of maps and information are also attached.

PETITION LETTERS

Three individuals, Stanley Kogut, Elinor Currie and Joseph Oliver, all filed letters to the Town ZBA in early August, 2000. Before discussing each individually, it is essential to make a very clear and definitive delineation of the two issues at hand. As mentioned above, the first task of the ZBA is to decide whether these three individuals are entitled to "standing". Second, if "standing" is granted, is the review of the regulation interpretation itself. Taking first things first, this discussion is strictly limited to the question of whether these petitioners legally qualify for being granted "standing".

As you have read, the letters are all nearly identical and the majority of the discussion is verbatim from one to the others. All of the duplicate paragraphs primarily focus on the issue of the interpretation of the ordinance itself. This would be expected and appropriate but is not related to the first issue at hand, whether the petitioners are eligible for "standing". The balance of this section will discuss each letter as it pertains to their request for "standing" by satisfying the two tests described in the introduction, i.e., whether they will suffer injury or harm and secondly, whether their property is within the "zone of interest" of where the regulation is applicable. It is imperative to remember that the question is not whether the on‑site wastewater system is potentially harmful, but rather, whether by placing a portion of that system within that specific Buffer Zone along the south boundary, it will in fact have a harmful affect on any of the three petitioners.

Elinor Currie Petition

The majority of this letter, all but one paragraph, discusses the issue of the regulation's interpretation and cites various legal references. On page two, there is one sentence within the paragraph which begins "Fourth, even if one ............. which relates to her specific property and the question of "standing". It reads as follows, "In the event of a broken line or overflow from these sewage pipes, my property to the North and the 70 plus acres to the East would be adversely affected". There is no other mention of eligibility for "standing" or other harm/injury that would be suffered within the letter. Below is a detailed discussion of the two tests for "standing" as applied to the Currie property. Attached with this report is a map which shows the location of the Currie property, the other petitioners land, the project site and the Buffer Zone in question.

Two Tests for Standing Eligibility

1. Suffer Harm or Injury: The petitioner states that a broken line or overflow from the pipes will affect her property. As shown on the attached U. S. Geological Survey (USGS) maps, and as will be discussed in detail in the Technical Information section of this report, any above ground and/or subsurface failure of the proposed system within the Buffer Zone will not and cannot impact her property. Both the surface water drainage patterns and groundwater flow patterns from the Buffer Zone location are from the northwest to the southeast and cannot impact the Currie land. In addition, the Currie property is significantly distant from the Buffer Zone itself. At its closest, the north property is approximately 1700 feet from the Buffer Zone and the property to the northeast is approximately 1800 feet from the area of concern. As shown, there are also significant physical features between each parcel and the Buffer

Zone, i.e., Route 281, the Peter Knapp property and Currie Road to the north and Interstate 81, other lands of Flying J and the wetlands to the northeast. Each of these represent an additional barrier to any risk of wastewater in the Buffer Zone impacting the Currie property. No harm or injury could occur at the Currie property, thus not satisfying this criteria for "standing".

2. Zone of Interest: The Currie property is not located immediately adjacent to the Buffer Zone. The property to the north is fully separated by both the Knapp parcel and two roads and clearly is not within the "zone of interest". For the parcel on the east side of 1‑81, this land is clearly not within the zone of interest due to the physical separation and the fact that the adjacent lands of Flying J on that east side are also zoned Agricultural, thus the Buffer Zone regulation cannot apply. As mentioned earlier, the Currie properties are located approximately 1700 feet and 1800 feet respectively from the Buffer Zone. They are clearly well beyond the "Zone of Interest" for this particular Buffer Zone. Since the Currie property is not within the area the regulation was designed to protect, it does not satisfy this criteria for "standing".

Joseph Oliver Petition

This letter is similar to the Currie letter in that the same discussion about the interpretation of the regulation is provided. In addition, Mr. Oliver also discusses several other matters. On Page 1, the second and third paragraph concerns his request to be granted "standing" based on his involvement with the ZBA during a. proceeding related to a sign variance for the Paul Bunyan facility. He also claims to be 6 times closer to the Flying J site than the Bunyan property, whereas the measured distances are approximately 800 feet to Flying J and 2,200 feet to Paul Bunyan. Regardless, the previous inclusion in the Paul Bunyan matter is totally unrelated and has no bearing whatsoever on Mr. Oliver's eligibility for "standing" in the Buffer Zone matter of Flying J. The third paragraph in Mr. Oliver's letter states that his home is "located directly across from the Flying J site..." ' whereas the Knapp property is between Mr. Oliver and the project site. (See attached maps). The remainder of the paragraph describes his many concerns (crime, noise, etc.), for the overall project but makes no mention of the Buffer Zone issue along the southern boundary and any impact it may have on his property.

At the end of Page 2 and continuing onto Page 3, he discusses and describes the wastewater system and some of it's components. He notes that the distribution box is "located at a close proximity to State Highway Route 281 directly in front of my home...", which of course is impossible since Mr. Oliver does not live on Route 281. ‑This group of paragraphs appears to have been copied from the Stanley Kogut letter which the location descriptions would be applicable. Regardless, the discussion focuses on the proper design and capability of the system to function year‑round, with an expressed concern that it will fail during a heavy rain or snow. If that were the case, all of the buried leach fields associated with all of the businesses and homes in Preble would likewise fail. That is simply not true. The last of this group of paragraphs is the one paragraph which actually describes the harm or injury that would be incurred if the Buffer Zone is used for buried piping. He claims that if an overflow were to occur, it "would surely flow in the direction of my home rendering my home virtually valueless and would cause an unimaginable hardship to my family and myself'. As will be further discussed, this will not and cannot occur.

Two Tests for Standing Eligibility

1. Suffer Harm or Injury: The petitioner states that an overflow from the wastewater system will flow onto his property. In the case of the Oliver property, his land is located where it would be impossible for either the surface drainage or groundwater flow pattem to go from the Buffer Zone along the southern boundary up to his property. The clearest demonstration of this is both the topographic and groundwater contour maps attached which indicate that the surface drainage and groundwater at Mr. Oliver's property in fact flow toward and through the Flying J site. As discussed in the Currie petition above, there are also other physical barriers (two roads ‑ Song Lake and Route 281), and other lands of Knapp that render this event impossible. No harm or injury could occur at the Oliver property, thus not satisfying this criteria for ".standing".

2. Zone of Interest: The Oliver property is not located immediately adjacent to the Buffer Zone. The property is fully separated by both the Knapp parcel and two roads and clearly is not within the "zone of interest". As mentioned earlier, the Oliver property is located approximately 800 feet from the site and approximately 1100 feet from the Buffer Zone itself. This land is clearly well beyond the "Zone of Interest" for this particular Buffer Zone. Since the Oliver property is not within the area the regulation was designed to protect, it does not satisfy this criteria for "*standing".

Stanley Kogut Petition

As before, this letter focuses on the interpretation issues associated with the Buffer Zone regulation. He also discusses and describes the wastewater system and some of it's components. This group of paragraphs are identical to the Oliver letter which appear to have been written originally with the Kogut property in mind. The same issues apply and the technical discussion to follow will address them. As before with the Oliver property, the alleged harm is based on the flow of wastewater in the direction of his home. As will be further discussed, this will not and cannot occur.

Two Tests for Standing Eligibility

Suffer Harm or Injury: The petitioner states that an overflow from the wastewater system will flow on to his property. In the case of the Kogut property, his land and the topography of the immediate area make it impossible for either the surface drainage or groundwater flow pattern to go from the Buffer Zone along the southern boundary up and into his property. The clearest demonstration of this is both the topographic and groundwater contour maps attached. In the case of the groundwater, the USGS map prepared by Todd Miller shows the 1180 groundwater contour nearly paralleling Route 281 in this area and the 1170 contour further to the east and south. The groundwater flow direction is always perpendicular to the contour line and will

flow from the higher elevation to the lower elevation which means that the water is flowing from Mr. Kogut's land toward the east and south. Due to the highly permeable nature of this aquifer, any wastewater which is dispersed through the subsurface system will follow this same pattern of the groundwater and not be influenced by other activities within the aquifer, i.e., the low volume pumping (33 gallons per minute) and total daily usage (100‑200 gallons per day) of Mr. Kogut's residential well. (See the aquifer characteristics documented in the DEIS). In addition, the proposed subsurface piping in the Buffer Zone is at least 200 feet down gradient from the Kogut property. In the case of the surface drainage, the highest final ground elevation on the Flying J site of the proposed wastewater system is approximately 1189, as is shown on both the Site Plan and Disposal Plan in the DEIS. The elevation of Route 281 in the direction of Mr. Kogut's property at this same location is approximately 1195. Consequently, it is not possible for any surface flow of wastewater to ever "leap" the highway and enter Mr. Kogut's land and there are no highway culverts connecting the two properties. In addition, within the Flying J property, the final grades of the site will continually get lower heading easterly from the aforementioned 1189 elevation, thus insuring that there will never be any surface water flow in the direction of the Kogut property. In short, neither the groundwater or surface water can flow "uphill" into the Kogut property. No harm or injury could occur at the Kogut property, thus not satisfying this criteria for ",'standing".

2. Zone of Interest: The Kogut property is not located immediately adjacent to the Buffer Zone. The property is fully separated by the 100 foot wide Right‑Of‑Way of Route 281 and clearly is not within the "zone of interest". It is also important to note that the Kogut property is also located within the same Commercial district of the vicinity and which includes the Flying J property. Since the Kogut property is not within the area the regulation was designed to protect, it does not satisfy this criteria for "standing".

TECHNICAL INFORMATION

The key technical information associated with this issue is the question of how both the surface water and groundwater in this area flow. We are fortunate in this instance that there has been a considerable amount of work done to date which documents these patterns. This work has been primarily conducted by the United States Geological Survey, and they continue to do so through the ongoing efforts of Mr. Todd Miller of the Ithaca office. Below is a brief discussion which provides the factual data associated with each.

Surface Water Flow Patterns

As is well known and illustrated on the USGS maps of the area, this general vicinity is located within the Preble valley floor which functions as would be expected. The side slopes of the valley direct the surface water runoff toward the central part of the valley where it ultimately collects and becomes a channel flow, which in this case is the West Branch of the Tioughnioga River. As is common knowledge, this river flows in a southerly direction and ultimately joins with the other water courses to form the Susquehanna River Basin. As shown on the maps, the three petitioner properties as well as the Flying J Buffer Zone area are all located west of the main river. This is important in that the surface water pattern through each will all be essentially the same, i.e., from the west and north and towards the east and south. Knowing this, the next step in evaluating the area conditions is to examine the positions of each of the three petitioner properties relative to the Buffer Zone itself. As shown, these properties are all either westerly, northerly or northeasterly of the Buffer Zone land. Without a doubt, the general surface water flow pattern of the area is away from, not toward. each petitioner property relative to the Buffer Zone.

On a smaller, more localized level, this same information has been fully documented with the completed topographic survey of the Flying J site. As shown on the Site Plan, water that falls anywhere on the Flying J property moves in an easterly and southerly direction until it exits the site via the ditch and culvert system of 1‑81 along the eastern boundary. This is particularly true for the water within the Buffer Zone area which, once the site is constructed, will flow due easterly within the Buffer zone itself. All of the general flow patterns on the Flying J site will remain consistent with the existing patterns once the facility is constructed. To further support the previously described overall flow pattern, all of the culverts beneath Route 281 function so as to pass the surface waters from the north side of the roadway to the south side, or into the Flying J site and it's perimeter ditch system. As a final comment, and as mentioned earlier, the relative grades of the proposed wastewater system within the Buffer Zone is such that it is impossible for the surface drainage to move up and over Route 281. The highway serves as a barrier which has been built at a higher elevation than the surrounding land. This, in turn, dictates the need for the aforementioned culverts to allow the water from the north to pass through to the south.

Groundwater Flow Patterns

Not unexpectedly, the groundwater flow patterns in the area essentially mirror the surface water patterns. As indicated on the recent USGS map prepared by Todd Miller this past year, the groundwater contours of the area dictate a flow of water from both the west and north and towards the east and south. With that information established, the key is to examine the flow patterns relative to the location of the three petitioner properties and the Buffer Zone. As indicated on the map, the groundwater passes beneath all of the petitioner properties before ' it passes beneath the Buffer Zone area. With the highly permeable subsurface soils located throughout this area, the addition,' of treated wastewater to an aquifer of this magnitude and with

it's highly transmissible characteristics will not cause the groundwater to reverse its flow direction and travel upstream. In other words, the groundwater flow will carry all of the water beneath the Flying J site further to the east and south and not towards any of the petitioner properties. This flow pattern has been fully documented and studied in several past aquifer evaluations and models.

SUMMARY

Upon final review of all of the information discussed within this report and as depicted on the attached and referenced drawings, there is no doubt that the alleged impacts on the three petitioning properties will not occur. A simple visual examination of the site conditions today will clearly verify all of the technical data contained in this report. Water simply does not go uphill. With such definitive information in hand, it becomes readily apparent that none of the petitioners are eligible or withstand the test to be granted "standing". If there is any risk at all associated with placing the subsurface disposal system within the Buffer Zone, it is clearly a no greater risk to the three petitioners than any risk to the public at large. Being located where they are, these three properties and any others located "upstream", actually have the least risk, no matter where the system is located on the site.

Respectfully submitted to the Town of Preble Zoning Board of Appeals.