The Harford County Council has upheld a decision by a zoning hearing examiner that concluded the High's convenience store at Route 23 and Madonna Road in Madonna can keep its diesel fuel pump, but must move it to another location on the property.
Without comment, the council, which sits as the county Board of Zoning Appeals, voted 7-0 Tuesday night to uphold the decision by Chief Zoning Hearing Examiner Robert Kahoe that denied a variance sought by High's to keep the pump where it is.
The council members had heard final arguments on the appeal at their April 21 session, where High's lawyer asked them to void Kahoe's ruling that the diesel pump could stay on the property, but is improperly installed in a required setback area along an adjoining road and should be moved. The county's people's zoning counsel argued for the hearing examiner's ruling to be upheld.
Dino LaFiandra, the High's lawyer, said the company operated the store at the Madonna site since the early 1990s with three pump islands and six fuel dispensers. About three years ago, the store was renovated and the fueling stations were upgraded.
When that work was done, a diesel pump was placed away from main fueling station, about five feet from the property line along Madonna Road, according to Kahoe's December opinion.
LaFiandra told the council that moving the diesel pump to that location came down to the need for eliminating traffic congestion around the store.
The county passed legislation in 2005, after the store was established, to prohibit new fuel dispensing facilities being installed next to properties not served by public water. The change took place after wells in the Upper Crossroads area of Fallston were contaminated by a gasoline additive from a nearby gasoline station, which has since been removed.
High's new fuel facility was inspected by the Department of Planning and Zoning in 2013 and found to be an expanded non-conforming use because of the 2005 law. The department also said the location of the new diesel pump intruded on the required 25-foot setback from Madonna Road.
High's filed for variances from both rulings and Kahoe held a hearing last summer, during which the High's representative testified they could not place the pump elsewhere on the property without violating a state requirement that fuel dispensing facilities be at least 100 feet in all directions from the store's well.
Kahoe wrote in his opinion that agreed with the company's position a variance for the new gas pumps was warranted, since they had been in existence on the 2.7-acre site prior to 2005.
But, he denied the variance to keep the diesel pump where it is, writing that High's did not meet criteria for a hardship variance from the setback, nor did the configuration of the property pose a practical difficulty in placing the pump elsewhere.
People's Zoning Counsel Brian Young told the council the site is not unique, as there are plenty of businesses on corner lots in the county and High's, which he noted had installed the diesel pump without prior county approval, was not entitled to any special consideration.
High's can appeal the council's decision to the Harford County Circuit Court. The deadline for filing an appeal is June 6.