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Zoning fight on empty lot continues

December 18, 2004|by GREGORY T. SIMMONS

gregs@herald-mail.com

HAGERSTOWN - A fight that has lasted nearly four years over whether any business should be allowed on an empty lot in Hagerstown's North End continued Friday in a brief hearing in Washington County Circuit Court.

A residents' group and property owner Evergreen Properties LLC are battling over 3.6 acres at the corner of Eastern Boulevard and Potomac Avenue, across from Long Meadow Shopping Center.

The residents, represented by retired attorney Howard Gilbert, believe allowing business on the land that originally was part of a farm generally will worsen their quality of life, worsen traffic and worsen property values, Gilbert said Friday.

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According to court documents, Gilbert represents city residents Paul Bannister, Jack Byers and Roland Smith.

Evergreen initially had discussed plans to build a CVS pharmacy with a drive-through window. While those plans haven't been ruled out, Evergreen attorney James Stone said Friday the zoning would support any neighborhood business, such as a pharmacy or a bank.

In 2001, Evergreen applied for a change in zoning to the property from an agricultural use to the lowest-impact business zone. Without the zoning change from the Hagerstown City Council, no businesses could be built on the land.

To grant zoning changes, local governments must find there either was a mistake in the original zoning designation or the neighborhood had changed enough to warrant the zoning change.

The council granted the zoning change, but the residents' group appealed the decision to Circuit Court.

Circuit Judge W. Kennedy Boone III ruled that the council didn't explain the change well enough to grant the zoning change and sent the case back to the council.

Evergreen appealed Boone's decision to the state's Court of Special Appeals, which upheld Boone's decision in March 2003.

In March of this year, with the appellate decision in hand, the City Council took up the zoning case again. The council decided to reverse the zoning by a 5-0 vote on March 23.

In April, lawyers on behalf of Evergreen filed the appeal of the council's decision, hoping to reverse it. Both sides have filed memos arguing their cases.

In Friday's hearing, Gilbert and Evergreen attorney Jason Divelbiss presented oral arguments before Boone.

One of the central questions before Boone is whether the case the city decided this year should be considered as the same case as the one it considered in 2001 or if they are separate cases.

Gilbert argued in favor of the single-case theory, saying this merely is a continuation of the same case. Therefore, the council only needed to review the information presented in the first case.

Also, Gilbert argued, the court is not allowed to guide the City Council in its decision - for instance, by saying what it must consider - because of separation of powers.

"The courts can't and won't tell the legislators how to vote," Gilbert said.

Divelbiss argued in favor of the two-case theory, saying that the council this year had considered whether to change from the commercial zoning instead of the agricultural zoning.

Therefore, it was a separate case, making the council's decision not based in fact, and it was the court's duty to reverse the council's decision.

Boone took the arguments under advisement and said he would issue a written ruling within 15 days.

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