A diesel fuel pump installed at the High's convenience store in Madonna can continue as a non-conforming zoning use, but not at its current location, a Harford County zoning hearing examiner has ruled.
High's wants the decision by chief examiner Robert Kahoe reviewed by the Harford County Council in its capacity as the county board of appeals, and filed for such a review last week.
The convenience store is at the intersection of Norrisville and Madonna roadson 2.7 acres leased from Douglas Verzi. High's built a store and gas service island on about 7 tenths of an acre of the property in the early 1990s. That portion of the property is zoned B3 general business; the remaining two acres is zoned agricultural.
During a recent modernization, a diesel pump was installed on the Madonna Road side of the property, about five feet from the property line along Madonna Road, according to a summary of the case that is part of Kahoe's Dec. 3, 2014 opinion. Fueling stations dispensing gasoline and diesel that had already been on the property were remodeled and modernized.
The new stand-alone diesel pump faced two hurdles.
A 2005 county law prohibits new fuel dispensing facilities from being adjacent to properties not served by public water. The law was passed in the wake of the contamination of residential wells in the Upper Crossroads traced to a gasoline additive in pumps at a nearby filling station.
Because of that law, the existing pumps at High's became a non-conforming use, and any new facilities would constitute an expansion of a non-conforming use, requiring a board of appeals variance, Kahoe's opinion explained.
The second issue in the case was the new diesel pump's location within a required 25-foot setback from the property line along Madonna Road, where no facilities could be built. High's requested a second variance to keep the pump in its current location.
Testimony in the case by High's representatives explained that the company received the requisite county and state approvals for the diesel pump in question and was not informed by the county about the discrepancies with the gasoline station ban and zoning law. The location for the diesel pump was chosen, company representatives said, to assure even traffic flow through the property and because other locations on the property would be within a 100-foot buffer zone state regulations impose between the well serving the store and any fuel tanks or dispensing facilities.
A representative of the county planning department testified during a hearing before Kahoe last summer that the department supported High's requests for the variances, saying requirements for a non-conforming use specified under the zoning code had been met and the placement of the diesel pump was the only feasible location for it on the site.
Although Kahoe agreed High's had met code criteria for a variance to expand the non-conforming use, he denied the variance to put the pump in the 25-foot setback area. Citing both the zoning code and case law, the examiner said High's did not meet criteria for the setback variance that there are unique conditions to the property that create practical difficulty or hardship for an intended use.
"The applicant argues hardship results because customers experience long waits at the dispensers at the three pumps under the canopy," he wrote. "However, this is caused not by any unique features on the property but, rather, by the size of the parcel, the number of dispensers on site and the number of customers attempting to access them. There is simply, according to the testimony of the applicant, no other place within the allowable building area of the property in which to place another fuel pump."
He then cited a 1952 Baltimore City case opinion which in part states, "...the means sufficient to justify an exception must be substantial and urgent and not merely for the convenience of the applicant..." Also cited was a 1950 Baltimore City case "to support the principal that the mere fact that the variance would make property for valuable is not sufficient grounds to support a variance."
Under a board of appeals review, the county council can uphold Kahoe's opinion, modify it or order that it be rewritten to grant both variances. Regardless of the outcome at that level, the applicant has the option of appealing the final decision to the Circuit Court.