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Md. appeals court rejects Costco gas station plan in Wheaton

Costco’s proposal to build a gas station next to one of its Montgomery County stores would not be “in harmony” with the surrounding area, Maryland’s intermediate appellate court has held in the latest development in a nearly decade-long fight.

Costco did not establish building a gas station next to its Wheaton location would not cause health problems to the surrounding residential area, the Court of Special Appeals held in agreeing with the Montgomery County Board of Appeals’ determination that the proposed 16-pump gas station would increase traffic and congestion.

Opponents of the gas station hailed the court’s ruling, which came in an unreported opinion last week.

“This decision upholds the power and duty of county zoning officials to protect the health of county residents against environmental pollution. This decision is a breath of fresh air,” said Larry J. Silverman of Stop Costco Gas Coalition, a community activist group, in a statement.

The case is Costco Wholesale Corp. v. Montgomery County, Maryland, et al., No. 2450, September Term 2016.

The Washington Post called the saga over Costco’s plan to build the gas station was “the longest zoning proceeding in official memory” in 2014, after the county’s Office of Zoning and Administrative Hearings issued a nearly 500-page report denying the retailer’s request to build a gas station at the Wheaton Westfield Mall.

Martin Grossman, the hearing examiner, raised concerns in that report about fumes from idling vehicle at the gas station, as it would be located less than 400 feet from community swimming pool and less than 1,000 feet from a school with disabled children.

The Board of Zoning Appeals upheld that decision in April 2015, ruling Costco failed to prove “by a preponderance of the evidence, that the proposed use will not adversely affect the health, safety and general welfare of residents, visitors or workers in the area at the subject site.”

Costco lost on appeal in the Montgomery County Circuit Court, where it argued that the county board was preempted by state and federal law from denying special zoning exceptions the retailer argued for in its appeal. The retailer argued the gas station complied with federal air quality standards and the failure to apply that standard was “arbitrary and capricious,” according to the appeals court opinion.


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