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City, property firm battle over zoning

April 25, 2004|by GREGORY T. SIMMONS

gregs@herald-mail.com

The legal fight to build a CVS pharmacy at the corner of Eastern Boulevard and Leitersburg Pike in Hagerstown's North End was revived this week.

Evergreen Properties LLC, which owns the piece of land in question, has filed for judicial review of a recent Hagerstown City Council decision to change the zoning on its land to an agricultural use. The council's decision prevents the company from building the drugstore.

James Stone, a Hagerstown attorney, filed the appeal in Washington County Circuit Court Thursday on behalf of Evergreen Properties.

"We hope to persuade the court that the mayor and council decision was wrong ... in a legal sense," Stone said Friday.

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Evergreen Properties began plans to build the pharmacy at the site a few years ago, Stone said. He said the store would be similar to one at the intersection of Wilson Boulevard and South Potomac Street.

In 2001, the company gained zoning approval from the city council to allow the store to be built, but would-be neighbors pitched a legal battle, appealing the decision in the local court.

At the time, Circuit Judge W. Kennedy Boone ruled that the city's explanation to change the zoning wasn't complete and sent the case back to city officials.

The city appealed Boone's decision to the Court of Special Appeals, which last year upheld Boone's decision.

In March, the council - with four new members who joined in the 2001 elections, after the disputed zoning decision - reversed the earlier council's zoning decision.

Stone said the gist of his argument will be that the council "made a decision this way three years ago. You can't just do the opposite thing today because there's a couple different members on the council."

John Urner, an attorney for the city of Hagerstown, said Friday he had not yet seen the appeal.

"The only comment I can make to you is that the city was legally correct in what it did in the decision it rendered. ... I believe the court would support that," Urner said.

No hearing date had been set Friday.

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