St. Clair Shores council denies Kroger site plan

ST. CLAIR SHORES — At its meeting on Oct. 7, the St. Clair Shores City Council voted 6-1 to deny site plan approval for a Kroger gas station on Harper Avenue at Nine Mile Road.

Mayor Pro Tem and Councilwoman Candice Rusie cast the opposing vote.

Jason Canvasser, an attorney representing Kroger, presented the item along with Dave Russo, who offered a traffic study to the council. The city also conducted its own traffic study done by the engineering and consulting firm Anderson, Eckstein, & Westrick.

Canvasser gave an overview of the history of the Kroger on Harper, stating that in 2001 the store invested over $30 million into the city and with a store expansion.

“At that time Kroger site plan was approved with the current egress and ingress drives that exist today,” Canvasser said. “Notably, there was no traffic required for that expansion.”

Canvasser also explained to the council and staff the steps Kroger took to get the site plan back before the council. He stated they were approved by the Planning Commission twice: once in 2021, and once in 2023. He also said the only concerns Kroger staff had in 2023 was crime.

Canvasser said Kroger worked on explaining safety protocols and increasing efforts to improve safety.

The site plan item was eventually placed on the agenda for the St. Clair Shores City Council meeting on March 18, 2024. However, Canvasser said Kroger was notified a few hours before the meeting that the request would not be considered at all.

“Unfortunately, Kroger was left with no option and had to take this matter to court,” Canvasser said.

In June, Kroger and the city met an agreement, Canvasser said.

“That required the city to review Kroger’s application in accordance with its ordinance at its regularly scheduled June 17 meeting,” Canvasser said.

During that meeting Canvasser said the council “acknowledged that crime was not an issue” and turned its attention to traffic impacts. Canvasser said no ordinance stated they needed a traffic study or allowed the City Council to reject the application on that basis. He also said that though Kroger asked, it did not get direction from the city on study criteria or areas of concern. Kroger did get a traffic study at its own cost.

“That traffic study clearly shows that Kroger’s proposed site plan will not impact traffic in any material manner,” Canvasser said.

Canvasser stated that the traffic study done by the city is “defective” in many ways.

“It appears to have been prepared to support a predetermined conclusion and I really hope I’m wrong about that,” Canvasser said.

Canvasser said if the City Council does not approve the site plan, Kroger will have to file an appeal in Macomb County Circuit Court.

“And given the history cited I think it’s very clear that any denial would be based on a thinly disguised pretext,” Canvasser said.

He went on to say that Kroger would also be forced to pursue monetary damage claims.

City Attorney Robert Ihrie acknowledged that Canvasser did email him, but he did not respond initially.

“Because I don’t speak for the City Council and don’t know what each council person is looking for, but I did respond last July,” Ihrie said.

He went on to say he did know the council had safety concerns.

Mayor Pro Tem and Councilwoman Candice Rusie said it is an unusual circumstance to have two traffic studies with two different results. She said the traffic study AEW completed suggests nothing could go in the parcel. She pointed out on that same parcel, a Panera Bread drive-thru was approved in 2020.

“In my opinion, subjectively, this parcel is less than ideal for a gas station,” Rusie said.

She went on to say she recognizes they are being asked to approve a site plan that is currently allowable under zoning and meets ordinances.

Councilman Ronald Frederick stated he is not an attorney but that he does know thousands of people go through the mentioned intersection including residents who voted for them. He said he looked through the traffic study completed by Kroger and appreciated the work put forth.

“In addition, you talked about stacked cars,” Frederick said. “My position is really about safety. So stacked cars is very nice and you know there’s a long line, there’s a short line, whatever it is. But I’m more interested in how many crashes.”

He went on to say the traffic study stated the intersection has 18 crashes per year and in Frederick’s opinion that’s already too many.

Councilman John Caron said when Kroger first came before council in 2017 to take over the old Kmart building, the company stated it wouldn’t build a gas station. He said businesses put forth a lot of money to clean up the dilapidated building.

“I get the advice of Mr. Ihrie, but we’re required to vote for a reason, and I do think that you get these circumstances where just something is just wrong and you’ve got to vote your conscience and that,” Caron said. “And this is just wrong to me.”