Judge lets city council's rezoning decision stand

February 05, 2005|by GREGORY T. SIMMONS

A Washington County judge upheld the Hagerstown City Council's decision to rezone a 3.6-acre property at the intersection of Eastern Boulevard and Potomac Avenue for agricultural use in a recent opinion, but took a humorous view toward the likelihood of future administrative or judicial action on the land.

Evergreen Properties LLC, which owns the land, had planned to build a CVS pharmacy there.

In 2001, the City Council voted to rezone the land from an agricultural use to a light business use, which would have allowed the pharmacy, but a neighborhood group appealed the decision to Washington County Circuit Court.

Later in 2001, Washington County Circuit Judge W. Kennedy Boone returned the decision to the City Council - which saw four new council members after the May, 2001 elections - saying there was not enough factual evidence supporting its earlier decision.

Evergreen appealed that decision to the Maryland Court of Special Appeals, which in 2003 agreed with Boone's 2001 decision.


In 2004, the City Council took up the matter again, and with supporting evidence, returned the land to its original agricultural use.

In September 2004, Evergreen Properties requested judicial review of the opinion. Boone heard oral arguments in December and released his opinion Jan. 24.

Boone ruled that the council was free to make any decision it wanted, first and foremost because his original 2001 ruling invalidated the council's 2001 decision.

Boone also acknowledged that "rezoning issues are inherently political decisions," and if the court forced the current council to support the 2001 council's decision, "an unfortunate series of events is likely to occur," wasting judicial resources and undermining public confidence in local government and the zoning process.

Lastly, Boone provided the opinion's readers some thoughts as a resident of the affected neighborhood and in light of what could happen after the upcoming city elections if a new rezoning application were filed.

He wrote that "we neighbors would be able to relocate to retirement living in the new community of Cortland Manor ... engage in fitness at the YMCA, go to the drive-through at CVS for our prescriptions, and then proceed across the street to the Fiery Funeral Home to make final arrangements.

"Food for future thought, since this decision is not final, subject to appellate review or further application," Boone wrote.

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