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Sheetz zoning decision upheld

February 24, 2009|By HEATHER KEELS

WILLIAMSPORT -- Washington County Circuit Judge W. Kennedy Boone III issued an order Monday upholding a zoning decision that allows a new Sheetz convenience store and gas station to be built in Williamsport's Town Center zoning district.

Boone dismissed an appeal by a group of 45 Williamsport residents and property owners, who argued the town's zoning ordinance prohibits the sale of petroleum products in the Town Center district.

Developer Bowman 2000 LLC is seeking to construct and lease out a new, larger Sheetz at the corner of North Artizan and East Potomac streets, across North Artizan Street from the current Sheetz. Opponents are concerned the new Sheetz would bring more traffic, noise and pollution to the downtown area and detract from the historic homes around it.

In July, the Williamsport Board of Zoning Appeals granted a special exception to allow the Sheetz, reasoning that the zoning ordinance allows "convenience shopping" in the Town Center and that gas pumps are substantially similar to convenience shopping. The zoning ordinance allows special exceptions for "uses substantially similar in character and impact to uses ordinarily permitted" in a given district.

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In reviewing the case, Boone wrote that he considered case law that calls for "a degree of deference" to the conclusions of administrative agencies such as the zoning appeals board regarding the ordinances they are tasked with administrating. Boone also noted that Williamsport's zoning ordinance gives the zoning appeals board the authority to interpret any of its provisions.

The section of the ordinance highlighted by opponents to the Sheetz lists the retail sale of petroleum products as prohibited in the Town Center district, but it falls in a section of the ordinance dealing with manufacturing and industrial uses. Travis W. Poole, the attorney representing Bowman and Sheetz, argued the zoning appeals board did not consider that prohibition because Sheetz would not be selling gas within an industrial or manufacturing context.

Boone accepted that explanation.

"It is fair to assume the Board used the interpretation powers afforded it" to deem the prohibition on retail sale of petroleum products inapplicable, "since its prohibition pertains to the retail sale of gasoline in the context of manufacturing and industrial uses," Boone wrote.

Boone also accepted the board's interpretation that gas pumps are substantially similar to convenience shopping.

During a hearing on the special exception, Fred Frederick, a professional engineer and land surveyor, testified he believed the new Sheetz would be consistent with the "convenience shopping" use the zoning ordinance permits in the town center. Frederick testified then that the inclusion of gas pumps merely provides an incidental component to retail sales, and that the Sheetz would be a convenience store, which he said is synonymous with the phrase "convenience shopping."

Boone wrote that, given the deference he must accord to the board's expertise, he found that the board's decision was supported by substantial evidence.

William Clipper, a Burkittsville, Md., resident who owns a historic home near the site and organized the petition for appeal, said he was surprised to learn of Boone's decision.

"There are perhaps some pretty strong arguments that would lead one to an entirely different conclusion than what the judge came up with, but obviously he's the judge and the arbitrator on this," Clipper said.

Clipper said he and the other residents would meet with their attorney and consider whether to appeal the decision. Any appeal would be filed with the Maryland Court of Special Appeals in Annapolis.

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