Lucky Stores, Inc. v. Board of Appeals of Montgomery County

• Citation: 270 Md. 513,312 A.2d 758
• Decision Date: 05 December 1973
• Docket Number: No. 100,100
• Parties: LUCKY STORES, INC. v. BOARD OF APPEALS OF MONTGOMERY COUNTY et al.
• Court: Court of Appeals of Maryland

Page 513

270 Md. 513

312 A.2d 758

LUCKY STORES, INC. v. BOARD OF APPEALS OF MONTGOMERY COUNTY et al.

No. 100.

Court of Appeals of Maryland.

Dec. 5, 1973.

John J. Delaney, Silver Spring (Linowes & Blocher, Silver Spring, on the brief) for appellant.

Stephen P. Johnson, Asst. County Atty. (Richard S. McKernon, County Atty., Alfred H. Carter, Deputy County Atty., Stephen J. Orens and John B. Walsh, Jr., Asst. County Attys., Rockville, on the brief) for appellees.

Argued before MURPHY, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.

BARNES, Judge.

The appellant, Lucky Stores, Inc., which operates Memco Department Store ('Lucky Stores' or 'Memco'), presents two questions for resolution by us, i.e., (1) whether Section 59-124(f) of the Zoning Ordinance for the Maryland-Washington Regional District in Montgomery County ¹ (the Zoning Ordinance), providing, in relevant part, that the appellee, Board of Appeals of Montgomery County (Board), before granting a special exception for a gasoline filling station, find 'from a preponderance of the evidence of record that for the public convenience and service a need exists for the proposed use for service to the population in the general neighborhood considering the present availability of such uses to that neighborhood' is unconstitutional by denying Lucky Stores due process of law and the equal protection of the laws and (2), assuming the constitutionality of that provision, whether the Board, in the present case, had a reasonable basis to support its denial of the special exception requested by Lucky Stores.

The Board denied Lucky Stores' application for the special exception on November 9, 1971; and the Circuit Court for Montgomery County (Moorman, J.) affirmed the action of the Board in a well-considered, written opinion and order filed April 6, 1973. A timely appeal to us was taken by Lucky Stores from this order.

We have concluded that the lower court ruled correctly and we will affirm its order of April 6, 1973.

Memco is the operator of a discount department store located on an 11.31 acre tract of land on the west side of Rockville Pike, south of Rollins Avenue, zoned C-2, General Commercial. On April 29, 1971, it filed with the Board a petition for a special exception to use a portion of the tract for the construction and operation of an automobile filling station. The proposed filling station was to be a part of a large 'one-stop' shopping center constructed on part of the tract, consisting of a department store, pharmacy, food store and a tire, battery and accessory (TBA) center, all of which, except the filling station, has been completed during the progress of the present litigation and is in operation. The total investment in the facility, including the improvements is approximately $3,000,000.00.

A public hearing was conducted by the Board on September 9, 1971. Memco's first witness was David Waddell, Director of Memco's Eastern Operations. He testified that Memco owns and operates 27 shopping facilities on the West Coast and in Arizona, similar to the two stores it owns and operates in Virginia and the two in Maryland. He described the general layout of the shopping center and explained that a 'one-time lifetime membership fee of $1 for the entire family is charged as a prerequisite to shop. The proceeds of these fees are devoted largely to charitable and scholarship foundations administered by local community leaders to be spent in the areas the stores are located.' He stated that the 'sale of gasoline at TBA sites is an important part of the business program' and that, in his opinion, 'there presently exists a valid commercial need for this additional business privilege.' He further testified that gasoline is an essential commodity necessary for a one-stop shopping concept. Mr. Waddell stated that the proposed filling station would be open from 7:00 a.m. to 10:00 p.m. daily and from 9:00 a.m. to 5:00 p.m. on Sundays. He further stated that 80% of the filling station patrons would be membership customers, already on the premises, shopping at the Memco facility. Neither of the two Memco stores presently operating in Maryland has a filling station connected with it. The one in Fairfax, Virginia, however, does have a filling station. He stated that his estimated gallonage for the proposed filling station, based on the averaging of the existing stores, would be from 90,000 to 100,000 gallons a month.

Memco's next witness, Ron Polniaszek, a registered architect, explained the site plan for the proposed filling station, pointing out that it would have four parking spaces based on the number of employees that work at the filling station and describing the type of signs to be installed and the lighting to be used. He stated that the filling station 'is located in an area of cut on the site, it has a berm of 12 feet average which is connected all the way across 12 feet. You really cannot see the filling station itself from Rockville Pike as you are traveling southbound. . . . The filling station itself is arranged in such manner it cannot be seen from the Rockville Pike.' There are to be no signs facing Rockville Pike that identify the filling station. He further testified in regard to the availability of utilities and the access to the site, stating that there would be no overburdening of existing public facilities resulting from the proposal.

Memco's next witness was Stanley Hatfield, a design engineer who is the manager of the construction engineering division of DiGas Corporation, which is responsible for the design, engineering, and operation of the proposed filling station. Based upon figures taken from a typical week in August, 1971, at the Fairfax Memco Store, he stated that 'between 80-82 percent of the traffic into the Memco filling station will come from traffic already on the department store premises.' He pointed out that 'only 4 percent of the service station's business is done on Sunday, the day the main Memco store is closed.'

In regard to the need for the proposed filling station, Mr. Hatfield testified:

'It is a fair question to ask why, in view of the numerous other existing filling stations in the area along Rockville Pike, there is a need for Memco to provide gasoline to its customers. The answer to this question is basically two-fold:

'a. Part of Memco's overall service to its customers is a complete 'one-stop' shopping service, including groceries, clothing, prescriptions, appliances, and complete automotive services, including a tire, battery, and accessory store, and gasoline. These services are being provided at virtually all of Memco's 27 stores throughout the country and have helped to create a national image of the store as a complete one-stop shopping center 'b. More importantly, we offer a service which is unique insofar as comparing a Memco facility to those of major oil companies and other independent operators. First of all, Memco appeals to a different clientele from that which patronizes the major oil stations. As you know, most people who carry a Shell, Standard, Texaco, Gulf, or other major oil company card are generally not inclined to trade at other locations. These persons, we have found, do not normally utilize Memco's services.' (Emphasis supplied.)

He also stated that Memco furnishes 'full service station services' while others 'such as Giant, Hess, Scot, etc., do not . . ..' He was of the opinion that the freestanding filling stations of the major oil companies are 'highway-oriented' whereas 80 per cent of the Memco service station customers are persons who came to the Memco store to shop generally and not primarily for gasoline. 'Only 20 percent of the Memco station patrons visit the station alone and these persons are not likely to have made a special trip for this purpose.' He was of the opinion that the Memco operations 'neither conflict with nor draw away from other free-standing major oil company stations,' and this opinion was confirmed, he stated, by the experience at other Memco filling station sites, giving specific data in regard to the Fairfax Memco site.

Mr. Hatfield was of the opinion that the proposed filling station would not cause a nuisance because of noise, odors, or physical activity and would have no adverse effect on traffic.

Board member O'Brien then asked Mr. Hatfield:

'MR. O'BRIEN: Why do you feel Rockville Pike needs another gas station?

'MR. HATFIELD: We feel Memco as such for its complete operation needs it to serve its members.

'MR. O'BRIEN: I think the ordinance says a clear and present need must be demonstrated. I assume that meant the public. Why does the public need a new gas station on Rockville Pike?

'MR. HATFIELD: It completes our one-stop shopping complex which is a national advertised program.

'MR. O'BRIEN: Do you think that is your fullest answer on that?

'MR. HATFIELD: Yes.' (Emphasis supplied.)

Mr. Hatfield further stated that he knew 'there are quite a few service stations (on the Rockville Pike). I also know there are again the major oil company stations which derive most of their traffic from the highway, and ours which we again hope to bring our traffic from our membership on the lot.' He testified that Memco would sell its gasoline three to five cents per gallon cheaper than the major oil company stations. Giant Food Store provides a similar discount, but does not provide the full services Memco expects to provide.

Memco's last witness was Stephen G. Petersen, a traffic, planning, and engineering consultant. He was of the opinion that 'the service station will have a minimal traffic impact and will not cause increased hazard on the adjacent roads,' giving detailed figures and data to support that opinion.

Five witnesses appeared in opposition to the granting of Memco's petition for the special exception. The first witness was Jack Hoffmeister, Chairman of the Greater Washington Service Station Association Zoning Committee....