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Decision on Sheetz due in 30 days

February 06, 2009|By HEATHER KEELS

HAGERSTOWN -- A Washington County Circuit judge said Friday he would issue a written opinion within 30 days in an administrative appeal case that could decide whether a new Sheetz can be built in Williamsport's Town Center district.

Attorneys on both sides of the case presented their arguments Friday to Circuit Judge W. Kennedy Boone III.

The case concerns a July decision by the Williamsport Board of Zoning Appeals 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. A group of 45 Williamsport residents and property owners is appealing the decision.

The arguments Friday focused on two conflicting provisions of the town's zoning ordinance. One, championed by the appellants, lists the "retail sale of petroleum products" as "not permitted" in the Town Center district. The other, championed by attorneys for Sheetz, developer Bowman 2000 LLC and the town, lists "retail businesses intended primarily for neighborhood convenience shopping" as "permitted" in the Town Center district. The ordinance also allows, by special exception, uses "substantially similar in character and impact to uses ordinarily permitted," which the zoning appeals board decided should include the sale of gasoline because of its common association with convenience stores.

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Attorney William C. Wantz, representing the appellants, argued the prohibition against the retail sale of petroleum products trumps the other interpretation because it is more specific.

"Nothing could be more specific than a use, a district and the N," Wantz said, referring to the abbreviation for "not permitted." "It's difficult to imagine how more specific the legislative body of the town then could have been in prohibiting the sale of gasoline in the Town Center district."

Wantz said it appeared the zoning appeals board had not read that section of the zoning ordinance.

"Sometimes I wonder if the attorneys in appeals are the first ones to read the ordinance in its entirety," he said.

Poole argued because the prohibition against the sale of petroleum products was listed under a section about "manufacturing and industrial uses," it refers to larger-scale operations and does not apply to gas stations.

Much more applicable, Poole said, is the "neighborhood convenience shopping" use.

"I'll put an equals sign here and, on the other side, Sheetz," he said. "That's what convenience stores are now -- neighborhood convenience shopping."

That item is listed in the "retail uses" section.

"Let's be honest here: Common sense, a Sheetz convenience store, with gas pumps or without, is a retail use," Poole said.

Other arguments debated whether the appellants could challenge the zoning appeals board's decision using a provision they didn't bring up during the initial hearing. Wantz cited a 2008 decision by the Court of Special Appeals of Maryland that said a reviewing court can consider whether a body exceeded its authority even if that issue was not raised before.

Boone could affirm the town appeals board's decision, reverse its decision or remand the case back to the board for a new hearing. Upon his decision, either party can file an appeal to the Court of Special Appeals of Maryland.

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