Creve Coeur Denies QuikTrip (2020–2022)

Before the current Graeser Station proposal, this same property was the subject of a multi-year legal battle over a proposed QuikTrip gas station and convenience store. Neighbors organized, fought, and ultimately prevailed at the Missouri Supreme Court.

January 2020: QuikTrip and BG Olive apply for a Conditional Use Permit (CUP) to build an ultra-high density convenience store/restaurant/gas station at the southwest corner of Graeser and Olive.

2020: P&Z defeats a motion to recommend approval. City Council then votes down the bill to approve the CUP.

September 2020: Property owners BG Olive & Graeser LLC and Forsyth Investments LLC (led by Gershman Realty and long-time Gershman Executive Chairman Tom Stern) sue the City of Creve Coeur, alleging discrimination.

July 2021: Circuit Court Judge Nancy Watkins McLaughlin overturns the unanimous City Council decision in favor of Gershman/QuikTrip, issuing a mandamus order requiring the city to approve the CUP.

April 2022: Creve Coeur loses appeal at the Missouri Eastern District Appellate Court, but vows to fight on.

October 26, 2022: Missouri Supreme Court hears oral arguments in SC99619, BG Olive & Graeser LLC and Forsyth Investments LLC v. City of Creve Coeur.

December 21, 2022: The Missouri Supreme Court sides with Creve Coeur. QuikTrip abandons their bid for the property.

Missouri Supreme Court Hearing — October 26, 2022

Listen to the oral argument (MP3)

Jerry Carmody motions toward opposing counsel during Missouri Supreme Court arguments
Jerry Carmody of Carmody MacDonald motions toward opposing counsel, Jim Layton of Tueth Keeney Cooper Mohan & Jackstadt, during arguments in the Missouri Supreme Court on Oct. 26, 2022. Photo by Scott Lauck.

Jerry Carmody, attorney for the property owners (Gershman/Tom Stern) in favor of QuikTrip, argued that the city had a ministerial duty to issue the permit once the ordinance's standards had been met. Carmody argued that the Council didn't fairly demonstrate why they'd chosen to deny the CUP and therefore "there's no due process, there's no fairness, there's no right to review."

However, Chief Justice Paul C. Wilson reminded Carmody that the ordinance explicitly gives the council the final say, and that the circuit court's duty is to determine whether the City Council's decision was arbitrary and capricious. Wilson said: "That's not the same as a de novo review of the application, which seems to be what the trial court here did, which was to say, 'I will determine in the first instance whether the facts support, in my discretion, the issuance of the permit.'" Wilson additionally noted that "At no point did the trial court concern itself with whether the facts supported the decision that had already been made."

Judge W. Brent Powell added: "The trial court needs to be focused on the decision and the decision-making of the city council, not on whether or not the application should have been granted."

Judge Zel M. Fischer seemed to take issue with the spirit of Carmody's argument, summarizing: "It doesn't matter who you vote for or whether they view compliance with the comprehensive plan the way you do, because a judge is going to decide whether we issue one of these permits."

Carmody defensively reiterated his arguments, adding that "the facts are the facts regardless of the constitution of the city council."

The Missouri Municipal League filed an amicus brief arguing that allowing "a single member of the judiciary" to make such decisions would encourage all permit approvals to be turned into contested cases. Attorney B. Allen Garner noted this "would create delays, increase the costs, and make hearings more formal and confrontational when the purpose of the hearing is to provide a forum for the members of the public to address their local officials."

SC99619 — BG Olive & Graeser LLC and Forsyth Investments LLC v. City of Creve Coeur, Missouri
St. Louis County

Challenge to order requiring city to approve conditional use permit

Creve Coeur was represented by James Layton of Tueth Keeney Cooper Mohan & Jackstadt PC in St. Louis; the property owners were represented by Gerard Carmody of Carmody MacDonald PC in St. Louis.

BG Olive & Graeser LLC and Forsyth Investments LLC own adjacent properties at the intersection of Olive Boulevard and Graeser Road. The properties now include mostly vacant strip shopping centers. The property owners entered into an agreement to sell to QuikTrip, contingent on QuikTrip obtaining approval for a new gas station and convenience store. In January 2020, QuikTrip and BG Olive applied for a conditional use permit. After months of review, city staff found the proposal complied with the comprehensive plan and three of the ordinance standards. However, P&Z defeated a motion to recommend approval, and the City Council voted down the bill.

The property owners filed for judicial review. During the bench trial, the circuit court made its own factual findings and entered a mandamus order requiring the city to approve the permit. The city appealed.

The appeal presented several questions: whether the circuit court should have reviewed the council's decision for error rather than making an independent decision; whether the mandamus relief exceeded permissible scope; whether the city's ordinances preserve discretionary authority for the council; and whether the evidence showed QuikTrip was not a "neighborhood service business" under the comprehensive plan.

The Missouri Municipal League, filing as friend of the Court, argued the circuit court should have reviewed the case as a noncontested case under section 536.150, RSMo, limiting available remedies. The League argued discretionary determinations are the purview of city officials, not the circuit court.

More details and all available assets: Documents page

Our Concerns

Our committee along with numerous neighbors near to the proposed site have expressed concerns to the Creve Coeur City Council. Evidence was presented to Council in session and via correspondence.

The details noted here represent some of GNS' concerns and a body of evidence explaining why the Planning & Zoning team rejected QuikTrip and why the City Council unanimously rejected QuikTrip at Graeser & Olive.

Creve Coeur's Comprehensive Plan (CP) was created to "preserve and evolve its high-quality residential development and stable property values while enhancing the diversity of housing types and improving the walkability and accessibility of neighborhoods."

Density: QuikTrip is an ultra-high density commercial operation while the CP calls for a maximum of low to medium-density commercial operations in the East Olive corridor.

The CP (page 88) notes: "The East Olive corridor comprises the Neighborhood Commercial District (NC) place type... The NC place type supports the development of a variety of medium- to low-density commercial, retail, office, neighborhood service business, and residential development in a commercial corridor with shallow lot depths. This district is designed to provide a transition between more intense commercial districts to the east and west. Existing properties in this district are ideal for many types of smaller, specialty retail, service, and office businesses, providing both easy automobile access and a walkable, pedestrian environment."

Hours: QuikTrip operates 24/7 while the CP explicitly calls for 18/7 operations.

The CP (page 15, goal #1) notes: "Creve Coeur will enhance its unique regional identity and develop an 18/7* community experience... *18/7—18 hours a day, seven days a week—refers to community vibrance and activity in a less-intense, suburban context. This is different from 24/7, which suggests a higher level of activity than would be appropriate for a community like Creve Coeur."

Community Needs (Goal #4): QuikTrip does not "provide a variety of new, high quality public amenities and community facilities that meet the needs and desires of all Creve Coeur residents." GNS had a majority of household signatures petitioning to strongly oppose a QuikTrip from the homes along Graeser and tributary cul-de-sacs. A QuikTrip on Graeser does not meet the needs nor desires of Creve Coeur residents as prescribed in the CP.

Setbacks: QuikTrip's plan does not meet the building setback standard provided by the CP.

Below is an image from the CP showing recommended setbacks (coincidentally using the corner of Mary Meadows, just west of Graeser, and Olive as its example):

Comprehensive Plan setback example

Compare with the uneven layout if the QuikTrip plan were approved:

QuikTrip setback overlay

There is a large body of scientific evidence showing that extended time spent near a gas station poses a health threat, particularly for the young and elderly.

The California Air Resources Board (ARB) Air Quality and Land Use Handbook documents health effects ranging from nausea to cancer. The cancer risk stems from benzene and other compounds released while customers pump gas, when underground fuel tanks are refilled daily, from water runoff spreading to nearby properties, and from perpetual venting of fumes from underground storage tanks.

Montgomery County, MD and other jurisdictions have adopted a requirement that new gas stations be located 500 feet or more from the nearest home.

The proposed QuikTrip was far less than 500 feet from the nearest home and therefore causes considerable health detriment to adjacent residences.

The site would bring substantial and unacceptable levels of additional traffic to Graeser and Spoede roads.

QuikTrip's own traffic study admits that traffic would degenerate to just below "unacceptable levels" (defined by MoDOT) on both Graeser and Spoede Roads. Any further volume above projections would push traffic into unacceptable territory.

GNS believes QuikTrip's traffic study does not adequately predict actual traffic. GNS completed our own traffic count at an analogous QuikTrip. Based on our extrapolation, we believe the study may underestimate traffic by as much as 30%.

GNS study counting cars at QuikTrip, 9404 Page Blvd, MO 63132 on June 15, 2020. Our study expects 436 cars per hour on Monday morning rush, but QuikTrip's study predicts 335 cars per hour. In ~20 minutes we counted 96 vehicle in/outs. Factoring Google's analytics showing ~2/3 typical volume: (96 × 3) ÷ (2/3) = 436 cars/hour. Full-length video.

Quantity of heavy-truck and semi-tractor trailer traffic on Graeser would increase from almost none to a very substantial amount, in perpetuity.

Increased traffic stacking at the signal on Graeser approaching Olive. QuikTrip noted in a City Council session that MoDOT advised such considerable stacking on Northbound Graeser that they would need to petition and purchase land from First Community Credit Union for right-of-way. First Community Credit Union has already voiced opposition in a letter to City Council.

Eighteen-wheel refueling tanker trucks would utilize Graeser Northbound multiple times daily. Turning right in a 60+ foot vehicle would require swinging far out of lane and/or driving over the sidewalk curb. Heavy vehicles turning West onto Olive would occupy the entire left-turning lane, creating additional stacking.

The traffic study states "a significant number of trips would be pass-by trips" (210–250 pass-by vs 75–85 new trips). GNS believes this underestimates new traffic because:

Fuel tanker trucks and tractor trailers would enter the QT site a few yards from a grade school bus stop at Graeser and Winfield Pointe. This bus stop has a dedicated brick shelter (since 1990) and crosswalk. In City Council session, QuikTrip representatives noted they could petition the school board to move this bus stop — meaning removal of the Winfield Pointe stop, forcing children to travel further in inclement weather to a stop with no shelter.

A QuikTrip would create additional safety issues due to customers purchasing alcohol late at night and driving impaired.

The intersection at Graeser & Olive is already dangerous, especially for pedestrian and bicycle traffic. Traffic incidents with pedestrians (including children in strollers) have already occurred. Adding an ultra-high volume operation would create considerable additional incidents.

Below are two GNS-documented issues collected over a very short time frame. Many more exist.

Graeser and Olive pedestrian collision

Graeser & Olive Pedestrian Crosswalk: Car hits mother and infant in stroller. Both victims were taken to Hospital Emergency Room.

Traffic control box collision

2020 Graeser & Olive traffic control box, second GNS-documented incident of a hit from an out-of-control vehicle with enough force to uproot two metal bollards buried in concrete.

A new QuikTrip would create a considerable increase in localized crime. Residents can easily search for "QuikTrip crime" to find recent articles about crimes at QuikTrip locations. A large increase in transient non-neighbor traffic on Graeser would create additional problematic events, including slider crimes, crimes of opportunity, and violent crimes.

QuikTrip boasts of their security systems. GNS argues these systems are more useful in identifying suspects rather than preventing crimes.

Fuel tanker trucks and 18-wheel delivery trucks would access Graeser frequently at any time of day or night, 24/7. In a City Council session, QuikTrip verbally assured neighbors that trucks they control (tanker fuel trucks and 18-wheelers with their own foodstuffs) would not be south of their Graeser driveway. However, QuikTrip said they could never regulate or prevent other vendors (alcohol, off-brand food, beverages, etc.) from using Graeser Road at any time.

Imagine a food stuffs 18-wheeler truck unloading hand-trucks and carts up and down a metal ramp during sleeping hours adjacent to single-family residences.

Twenty-four hour sales and late-night alcohol sales would bring an increase in raucous and noise-related disturbances adjacent to single-family residences.

The proposed development would bring substantial light pollution to nearby neighbors. QuikTrip's renderings promise considerable blockage via decades-old mature trees, however saplings would be planted. Decades would need to elapse before the promised buffer level is achieved.

The higher elevation of the site compared to the Martin Grove neighborhood makes it virtually impossible to provide sufficient separation from light even with planned fencing and foliage. Imagine bright lights, all night long, adjacent to single-family homes.

A substantial increase in trash and litter near the site would occur due to increased traffic and convenience items sold adjacent to Graeser. Weather would spread litter up and down Graeser Road and to tributary cul-de-sacs.

A QuikTrip at Graeser & Olive would set a new precedent as the first 24-hour business adjacent to Creve Coeur residences south of Olive. GNS is not aware of any single-family Creve Coeur homes adjacent to 24-hour operations.

It would also be the first gas station adjacent to Creve Coeur single-family homes south of Olive.

Neighborhood charm is not quantifiable but any proud homeowner will attest that it is real. The general consensus from our constituents is that an ultra-high volume gas station would destroy the quiet neighborhood feeling of the northern end of Graeser Road.

It has been nearly impossible to empirically prove that an ultra-high volume gas station lowers property values. However, homes adjacent to the site have seen a marked decrease in desirability. Very few homeowners would want to live adjacent to an ultra-high volume gas station and mega convenience store.

This was further solidified by the fact that a prospective home buyer looking at a home in Martin Grove, adjacent to the proposed site, pulled out of their contract after hearing about the QT project.

Two other gas stations exist less than 300 yards from the proposed site, less than one block away. These stations have been in service for several decades and allow 24 vehicles to simultaneously fuel up. Mobil On The Run operated on a smaller footprint and recently petitioned to improve their existing site.

The proposed QuikTrip would be a complete change of use, not an analogous comparison to Mobil On The Run.

Residents ideally want a mixture of businesses and services in a small geographic area. There are 2 other gas stations within a single block. QuikTrip argues it's not fair to allow similar operations while they are denied — but how many gas stations must Creve Coeur allow within a single block? Ad infinitum? Must the city allow the entire Eastern Corridor to be developed with gas stations just because developers believe the economics support the project?

GNS has concerns for the future if QuikTrip develops the site. QT has a history of finding a more desirable location, relocating, and leaving behind a site that is very difficult to develop or contractually blocked from development. Remediation of a gas station is timely, costly, and often dangerous.

When QuikTrip leaves a location it uses all legally available means to control future use, decreasing the site's marketability and often leaving an empty former gas station for many years.

See one local example of QuikTrip abandoning a location for a "better" nearby site and placing restrictions on future use.

Weight limit signs limiting traffic to less than 1 ton anchored both ends of Graeser at least as recently as August 2017 but were removed some time before QT began to show interest in the site. Neighbors were never notified of any change.

Limiting traffic to 1 ton on Graeser Road would impair QuikTrip's ability to operate by reducing access for restocking fuel and goods. Without Graeser Road access, heavy trucks leaving the site traveling East on Olive would have no way to get on Westbound Olive.