Wawa development on hold in Gaithersburg due to administrative appeal

Published: 2020-09-14

Plans to build a Wawa gas station and convenience store in Gaithersburg are temporarily on hold because a group of residents and businesspeople have taken the issue to court. The matter has reached the Maryland Court of Special Appeals, the state’s second-highest court.

The Gaithersburg City Council approved a schematic development plan (SDP), a type of preliminary site plan, for a Wawa on a 1.84-acre site at 405 S. Frederick Ave. in October 2019. It would be the first Wawa in Montgomery County.

The approval of the SDP followed a hearing in which several residents expressed concern about the potential for increased traffic, aesthetic problems, harm to the environment and competition to smaller gas station chains.

A group of 14 plaintiffs, including members of the business community and residents who live near the gas station site, filed an administrative appeal in Montgomery County Circuit Court on Nov. 5, 2019.

Rockville attorney James Parsons Jr., who represents the plaintiffs, told Bethesda Beat that the appeal was filed on the grounds that the development application didn’t comply with the city’s master plan.

“The main argument was that it’s not in compliance with the master plan, because the master plan calls for light commercial uses. … This use is not in keeping with the residential corridor,” Parsons said.

Parsons said the plaintiffs also argue that the Wawa doesn’t “enhance economic vitality” to the area and would create a nuisance for the surrounding community.

“It would impact the neighbors that back right up to this property, and they’re gonna be listening to gasoline delivery trucks that back up to their homes,” he said.

Parsons, who attended the public hearing on the SDP on behalf of the business community’s opponents to the Wawa, said part of their appeal included the claim that he didn’t have the opportunity to “cross-examine” or question the development applicants and Wawa representatives.

Because the public hearing was considered a “quasi-judicial proceeding,” Parsons said the opponents of the Wawa project should have a right to ask questions.

Circuit Court Judge Jeannie Cho denied most of the plaintiffs’ appeal during a June hearing, according to state court records.

But Gaithersburg City Attorney Lynn Board told Bethesda Beat on Friday that Cho’s ruling also included one favorable aspect for the plaintiffs.

“The one technical issue dealt with cross-examination before the Planning Commission,” Board said. “The court did find that the petitioners did not properly raise the question of cross-examination at the joint public hearing of the mayor and council.

“But then when the Planning Commission was making its final recommendations to the mayor and council, because they [the petitioners] did have some questions for representatives of the Wawa application, [the Planning Commission] should have allowed cross-examination at that point in time.”

Board said the parties in the matter have “cross appealed” Cho’s ruling, and it has gone to the Maryland Court of Special Appeals.

The plaintiffs are contesting the majority of the ruling, with the exception of the aspect that deals with the cross-examination at the Planning Commission meeting. The city and the development applicant are appealing the portion of the ruling that deals with cross-examination.

Board said no hearing date has been set in the appellate court, and the Wawa project is currently on hold as a result. She said a three-judge panel will rule on the appeal, and multiple outcomes are possible.

“[The court] could uphold the city’s actions. That would be one outcome. The court could find that the city erred and remand the case back to the city for further proceedings,” she said.