The Neverending Story
The bottom line is that, more than eight years into this fight, KHCA has won every round that we needed to win and Costco’s proposed mega gas station has not been built. The fight isn’t over yet but we remain strongly optimistic that we will have final success when the end comes, which gets closer every day. Costco has only one more step it can take – filing a request with the Maryland Court of Appeals to be allowed to file an appeal there. The Court of Appeals does not have to grant that request; like the U.S. Supreme Court, it decides for itself the cases it wants to hear. It only hears about 15% of those requests, so those are good odds for us. If it does agree to hear the matter, that only means we need to brief this matter one more time – and after winning all the prior decisions, we are optimistic we will win the final round as well. The deadline for filing the request to the Court of Appeals in 45 days from April 11, so we should know soon!If you want to know all about how we got here, there is a (relatively) short discussion below. The full saga could take volumes but this will give you a flavor of the fight we have been in for those years.
How Did We Get Here?
In January 2010, KHCA representatives were told that Costco wanted to come to Westfield Wheaton to build a warehouse and a mega gas station next to our homes and the Kenmont swim club. We were also told that the County had agreed to give Westfield $4 million to assist in building the store, and that Costco had insisted that it would not build the warehouse unless the County passed a Zoning Text Amendment that would exempt it from going through the Special Exception zoning process required for all other gas stations in the County.
While most KHCA members generally supported having the warehouse built (although there were a lot of concerns about the details), most were also deeply opposed to Costco’s demand to build its gas station without complying with the Special Exception process. That process requires a detailed look at the nature and impacts of a gas station to ensure that it is needed and will not be harmful to its neighbors. Exempting any station from that process – particularly under a threat like Costco made – would be a bad idea. Doing it for a mega station like Costco’s was a terrible idea. The station would pump eight times the volume of a typical gas station; would – by Costco’s own projections – have long lines of idling cars with up to 50 vehicles belching out fumes on the weekends; and would raise serious traffic concerns with the expected 2500-3000 purchasers a day.
KHCA and our neighbors and friends, including the Stop Costco Gas Coalition (the “Coalition”), chaired by KHCA member Abigail Adelman mobilized and fought back on many fronts. (Final Summary [PDF]) First, we raised a furious opposition to the proposed Special Exception exemption and after a public hearing where the opposition greatly outweighed supporters of the proposal, the County Council dropped that idea. Costco eventually agreed that it would go ahead and build the warehouse regardless of what happened on the gas station application. Second, we found out the $4 million gift to Westfield wasn’t a done deal and Costco and Westfield were required to sit down with us, discuss our concerns, and make some modifications to their plans before it would become final. The County eventually announced that those parties has made commitments to protect the neigborhoood by providing a noise wall and a pedestrian path, and, on that basis, handed out the $4 million. Those promises, unfortunately, have not been lived up to to date but we continue to pressure all parties to make them a reality.
Third, we worked with the County Council to support a much different Zoning Text Amendment (“ZTA”) than Costco proposed. Ours would require “mega” gas stations, such as Costco’s to be placed 1,000 feet from various sensitive uses (including homes and swim clubs). In the end, the final ZTA, as passed, set only a 300-foot buffer and did not include homes. [PDF] As a result, the station could no longer be built in the original proposed location in the southwest corner of the mall’s ring road, but it could fit (barely) in a site directly adjacent to the Costco warehouse. That still left its boundary within 120 feet of the back doors of various existing homes (and even closer to the townhouses now being built on what was “Mt. McComas”). It also meant the station would be less than 1,000 feet from Stephen Knolls School – the location where the County’s most severely physically and mentally challenged children come to spend their day. Many have severe disabilities with a number that use respirators and/or have significant breathing difficulties, all of which could be exacerbated by the emissions the station would generate.
So, when Costco filed for a Special Exception for this new location, KHCA (along with the Coalition and many others) stepped up to formally oppose the station. We participated in the Planning Board staff review process and, in early February 2013, the staff recommended denying approval of the station based on its “location, size, and queuing of vehicles” as well as Costco’s failure to meet its burden to show there would not be adverse health effects. (Planning Staff Report Outtakes [PDF]). When the issue went before the Planning Board at the end of February, it voted 3-2 to deny the application, not on the grounds stated in the staff report, but rather on general incompatibility grounds with its view that Wheaton should develop as a transit-oriented hub.
At that point, the decision went to the county Hearing Examiner for a full evidentiary record to be made. And full it was – although no one would have believed it at the time, the hearing took 37 days, spread out over more than a year’s time (interrupted by several snow storms along the way). (In the meantime, the warehouse opened without incident in April 2013, making it possible for everyone to see how congested that area was even without the added gas station traffic.) The hearing was the longest in County history, and took up almost 10,000 pages of transcript. (All of the transcripts can be accessed here by looking under 2013 and 2014). There were many significant points, but perhaps the two most important were a) the testimony by parents of children at Stephen Knolls about the harm they saw the station could do to their children’s fragile health and b) the admission by Costco’s highly paid air quality expert that he had made a glaring error in his calculations that meant he had vastly understated the levels of pollutions from the station on a critical pollutant. KHCA and the Coalition had air quality and health experts of our own and the battle raged for weeks. In the end, the hearing examiner concluded, in a 262-page report, that Costco had not proven that its station would not cause adverse health effects and that the added traffic and parking congestion and physical activity created by the station combined to make its effects on the surrounding neighborhood unacceptable.
Costco appealed that decision to the Circuit Court. The parties briefed the case during the summer and fall of 2015. The briefs are set out here (PDF downloads on the right).
After the briefing was completed, the matter was argued before Circuit Court Judge Gary Bair on November 13, 2015 and – in another early Christmas present – he upheld the County’s denial in a decision issued on December 18, 2015. [PDF]
Not one to be deterred by three adverse rulings, Costco appealed yet again to the Court of Special Appeals (Maryland’s intermediate level appellate court). The briefs in that case were filed in July and August 2016, and the oral argument was heard on January 9, 2017. A year later, we are still waiting for a decision – which we trust will follow the prior results. If so, Costco’s only option is to request that the Maryland Court of Appeals (its highest court) hear its appeal. There is no requirement that it do so and we are hopeful that, if it is still losing below that the Court of Appeals will see no need to take the case – and then we’ll be done.
Oh, and if Costco loses before the Court of Appeals, could it just start over with another application and do a better job this time of presenting its facts? No: the County Council passed yet another ZTA in 2015 that this time provided – for new applications – that a mega gas station must be at least 500 feet away from homes and schools. That requirement ensures that it cannot be built anywhere directly adjacent to the KHCA neighborhood. That will truly be the end to this unending saga.