Sheetz zoning decision defended

December 29, 2008|By HEATHER KEELS

HAGERSTOWN -- In the latest move in a legal battle over construction of a new Sheetz store in Williamsport, an attorney representing the developer filed a response last week defending a zoning decision that would allow the Sheetz to be built.

The case began when a group of 45 Williamsport residents and property owners filed a petition in Washington County Circuit Court for judicial review of a decision by the Williamsport Board of Zoning Appeals. That board decided in July to grant a special exception to allow a convenience store with gas pumps to be built at the corner of Potomac and Artizan streets, across from the current Sheetz.

The petitioners argued in their appeal for judicial review that selling gasoline is expressly prohibited on the site in question, citing a section of the town's zoning ordinance that lists the retail sale of petroleum products as "not permitted" in the Town Center district, in which the site lies.


In his response, dated Dec. 24, attorney Travis W. Poole, who represents Sheetz and developer Bowman 2000 LLC, wrote that it was too late for the petitioners to make that argument because they did not bring it up during a hearing before the zoning appeals board.

In the July 17 hearing, opponents spoke of the adverse effect the proposed Sheetz would have on the neighborhood, inconsistency with the town's historical character and the lack of need for a new Sheetz, but they never referenced the provisions of the zoning ordinance, Poole wrote. The Maryland Court of Appeals has held that a party who fails to raise an issue during an administrative proceeding may not raise that issue for the first time in a judicial review proceeding, he wrote.

In addition, Poole justified the zoning appeals board's decision to grant the special exception despite the prohibition against the sale of petroleum products in the Town Center district. That prohibition is in a section of the zoning ordinance that governs manufacturing and industrial uses, and applies to the retail sale of petroleum products as a stand-alone or primary use of the property, Poole wrote.

The section governing retail and commercial uses allows convenience stores in the town center district, but its definition of a convenience store does not mention gas pumps. It also allows for miscellaneous uses "substantially similar in character and impact to uses ordinarily permitted by this ordinance" by special exception.

Poole argued it was reasonable for the zoning appeals board to decide a Sheetz store with gas pumps was substantially similar to a convenience store, citing Washington County's zoning ordinance, which includes the sale of gas in its definition of a convenience store.

"Gasoline is a retail product, part of the voluminous inventory of products sold at convenience stores such as a Sheetz convenience store," Poole wrote.

A hearing in the case is scheduled for Feb. 6. In the meantime, the petitioners will have an opportunity to respond to Poole's memorandum, he said.

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