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Berlin, Ocean Pines News Worcester County Bayside Gazette Logo Berlin, Ocean Pines News Worcester County Bayside Gazette


Berlin appeals board says ‘no’ to Dollar Gen.

(May 21, 2015) Oxford Chase Development Inc., engaged in a lengthy battle to build a new Dollar General store in Berlin, has exhausted all administrative options following a 3-1 “no” vote by the Berlin Board of Appeals on Wednesday night.
The next step would be Worcester County Circuit Court, if the company chooses to continue the fight.
Oxford Chase hoped to build a new Dollar General Store on a parcel of land on Old Ocean City Boulevard near Healthway Drive, and formally requested a building permit from the town on Dec. 12 of last year.
The Berlin Planning Commission unanimously recommended that Planning Director Dave Engelhart deny the zoning certificate on March 11, suggesting that giving the property access to Route 346 would cause severe traffic issues.
Engelhart upheld the recommendation, citing a town code section involving highway corridor guidelines in a letter to the developer on March 25.
On the same day that Engelhart issued his denial, however, Attorney B. Randall Coates, representing Oxford Chase, called on the board of zoning appeals to hear the case, citing “an erroneous decision or determination made by an administrative official.”
Town Attorney David Gaskill, who argued that the appeals board was not the proper venue, denied his request and the matter moved to the Worcester County Circuit Court.
Then, on April 23, Circuit Court Judge Thomas C. Groton III sided with Coates and the developer, ordering the case go before the Berlin Board of Appeals.
The four-member appeals board, Jay Knerr, Geren Mortensen, Doug Parks and attorney Joe Moore, heard the case on May 13. The board’s fifth member, Woody Bunting, recused himself from the hearing.
In this instance, Oxford Chase was appealing the decision of the planning director who denied a zoning certificate for construction of a retail store.
Moore started by setting the parameters of the hearing, and said the board had received from Engelhart all of the documents that were considered by the planning commission in the original site plan denial.
The planning director also sent the board a copy of his denial letter, and Moore added the board had reviewed the minutes of the planning commission meetings and listened to portions of the audio.
Citing a 2003 Court Of Special Appeals decision, Moore said the appeals board could only listen to the matters specifically listed in the appeal rather than “every matter that was involved in the underlying application” for the site plan.
Coates began his argument by citing a section of town code on zoning permits that suggested the planning director was required to approve permits “if the building, structure, premises and proposed use conform to all requirements set forth in this chapter.”
“It is our position that, based on the documentation that was given to the planning director, and the testimony provided at [multiple hearings], [the developer] satisfied all building, structure, premise and proposed use requirements of the Berlin zoning code,” Coates said.
Coates then brought up another section of code that required the planning commission to supply a written recommendation to the planning director within 45 days of the original submission of the site plan.
According to Coates, 90 days passed between the date the commission originally received the plan and the date when they sent a recommendation. What’s more, the final decision by Engelhart was received more than 100 days after the original submission.
“I would note that the section of the code says that failure to make a written recommendation within 45 days shall be considered a recommendation to issue [a zoning certificate],” Coates said.
Coates went on to say that the planning director determined that granting any access from the property to Route 346 would “constitute a safety issue and was not in the best interest of the town.”
“It is my opinion that the planning director looked at [town code] to read that he could deny access,” Coates said. “The planning director has determined that any access from the property of my clients to Old Ocean City Boulevard … was inappropriate, any access could not be done safely, any access should not be granted.
“The state of Maryland through the State Highway [Administration] has the duty to determine what constitutes safe access,” Coates continued. “The right to access is a property right. It cannot be taken from a property owner without due process. It cannot be taken without compensation.”
Moore suggested that the site plan was denied, “for a particular use of Dollar General.”
“What is being denied by the planning commission is the specific use and the specific nature of the use of the property,” Moore said. “Respectfully, State Highway Administration approval of access … does not prohibit a planning commission in site plan approval looking at the conditions in that neighborhood, which they are required to do, and which they did. The State Highway Administration does not grant site plan approval for the town of Berlin.”
Coates argued that traffic generated by the Dollar General would be minimal, thus negating the objections of some on the planning commission, as well as neighbors who opposed the proposed store, include Atlantic General Hospital.
“Let me be very clear – it is my judgment that it is not our function to substitute our judgment for that of the planning commission,” Moore said. “It is our judgment to determine whether the planning commission committed an error, which, in our judgment, would require us to make a determination that is different.”
Moore then invoked the “fairly debatable rule,” a doctrine that bars a court from interfering with a zoning decision that is supported by substantial evidence.
“The fairly debatable rule says if there is any evidence presented to an administrative agency upon which it can make its decision, then it is fairly debatable and it is [within] the discretion of the planning commission,” Moore said. “It seems to me that we are talking about the review of a site plan in a particular location in the town that is for a particular use.
“If there is a scintilla of evidence … then we know that a court will not substitute its judgment even if it disagrees with what happened,” Moore continued. “I consider, respectfully, that that’s our position because we are in a quasi-judicial review of another administrative agent.”
Coates said the conclusion of the planning director, done without any findings of fact, “puts any applicant in a very precarious position” when making an appeal.
“There being just conclusions … it leaves the board of appeals with … no facts that we can debate,” he said.
“You’ve done a pretty good job of debating it, whether or not there were findings of fact,” Moore said.
Prior to the vote, Parks said he agreed with Coates’ argument that the planning commission and director were against “any use of the property.”
Mortensen appeared to concur initially, but voted with Knerr and Moore on a motion siding with Engelhart and the planning commission.
After the meeting, Oxford Chase Vice President John Camp said he was uncertain of his next move. The developer has 30 days to appeal the decision of the appeals board.
“We’ll make that determination, but if we decide to go forward it’s going to court,” he said.
Coates added that the Berlin board was considered an administrative appeal.
“The rule says you have to exhaust your administrative remedies before you can go to court, so we’ve now exhausted our remedies.”
Coates and Moore have a long history together, dating back to when Moore, as Worcester County’s States Attorney, chose Coates as his deputy.
“I was pleased that Randy and I were of one mind as to what our obligation as the board of appeals was,” Moore said following the meeting. “It was not whether or not we agreed with the decision of the planning commission so much as the planning commission had a scintilla of evidence that allowed them to make the decision that they did. The old thing is, we don’t substitute our judgment for that of the planning commission.”
Where Moore disagreed with Coates was whether the planning commission and director intended to block any business of any size on that specific property.
“That’s where we had an agreement to disagree,” Moore said. “When Randy said they turned it down because they turned it down, I said, ‘no, they turned it down because it was a 9,100-square foot Dollar General.’ I said, ‘if it was a 2,500 square foot Dollar General that would have been a substantive difference in the use even though it was the same technical use.
“Even though the planning commission was very concerned about access, it was clear that they were looking at this site plan and that this site plan, in the way that it was configured, they found was detrimental,” Moore continued. “I would certainly not be surprised if a judge looks at this as well, but it seems to me that you can’t speculate on what a planning commission could do with a substantively different site plan.”
Moore admitted that, prior to the vote, he was unsure which way the appeals board was going to go.
“It was perhaps a close call, but it was one where we, in my judgment, we owed deference to the planning commission’s decision as long as there was some evidence they could have based that decision on,” he said.