Wal-Mart seeks a re-evaluation of its zoning bid Retailer requests new, liberal criteria

February 07, 1993|By James M. Coram | James M. Coram,Staff Writer

An attorney for Wal-Mart Stores Inc. asked Circuit Judge Dennis M. Sweeney on Friday to order the Zoning Board to use new criteria to re-evaluate an Ellicott City property as the site for a department store and members-only wholesale buying club.

The nation's leading retailer has been rebuffed for more than a year in its attempt to get the county to rezone 54 acres in Ellicott City near U.S. routes 29 and 40.

Wal-Mart wants to put a 114,000-square-foot department store and a 130,000-square-foot buying club on the property, but the county Planning Board and the Zoning Board have unanimously rejected the use of the site for that purpose.

In order to get the zoning it wants, Wal-Mart has to demonstrate that a change has occurred in the character of the neighborhood or that the Zoning Board made a mistake in 1985 when it assigned the property its current designation.

Richard B. Talkin, attorney for Wal-Mart, told Judge Sweeney that both conditions are true.

The Zoning Board board used incorrect criteria when evaluating the company's petition, Mr. Talkin said.

Since the current zoning allows some retailing, building Wal-Mart stores on the property would be "a lateral move" and therefore subject to more liberal standards regarding proof of a change and mistake, Mr. Talkin said.

Changes in the character of the neighborhood must be substantial no matter what the current zoning is, countered F. Todd Taylor Jr., attorney for the county.

The use of change or a mistake to achieve zoning revisions is a judicially imposed remedy handed down at a time when comprehensive rezonings were seldom conducted, he said.

Now, however, Howard County revises its general plan about every five years and follows it with a comprehensive rezoning of the county. The zoning changes Mr. Talkin wants could come about in the current comprehensive rezoning, Mr. Taylor said.

Regardless, the court's bias should be toward upholding the Zoning Board rather than an appellant, Mr. Taylor said.

Judge Sweeney seemed to agree.

"The law makes it clear that the Zoning Board is in the best postion to make these decisions," the judge told Mr. Talkin.

"They're . . . elected officials very close to understanding situations in their neighborhoods. They are in the best position to know" what zoning would be most appropriate, he said.

"The court's role has to be a limited role," Judge Sweeney said. If the Zoning Board's and the appellant's arguments appear to have equal weight, "you give the tie to the runner [the Zoning Board]. They're the ones to take the political heat."

Mr. Talkin said the Zoning Board made a "serious mistake" in 1985 when members assumed the county would need more office space than turned out to be the case.

The Zoning Board did not consider trends and circumstances that led to a decreased demand for office space, he said.

But failure to do so led the board to grant relief in another recent case, Mr. Talkin said.

He said the board allowed GEAPE Inc., a Rouse subsidiary, to convert 356 acres from industrial zoning to a light manufacturing and warehouse category.

"Change industrial zoning to office and you come up with the same words," Mr. Talkin said. "But [the Zoning Board] refused to apply the same standards that they applied several months before -- the exact standards we're asking for. It denies our clients the same opportunity as other clients."

Mr. Taylor told Judge Sweeney the circumstances in the GEAPE case were unique and did not apply to Wal-Mart.

The fact that there is less demand for office space today than in 1985 "really doesn't matter," Mr. Taylor said. "There has to be strong evidence of a mistake in the use classification of property."

No such mistake exists, Mr. Taylor said, because even with the current zoning, the property can be used for commercial purposes other than office buildings. Among the permitted uses are funeral homes, banks, medical clinics, and institutional homes for elderly people and children.

Judge Sweeney said he will issue a decision as soon as he has an opportunity to review the evidence presented at Friday's trial.

The Wal-Mart case is one of the most protracted petitions ever considered by the Zoning Board outside of comprehensive rezoning.

The transcript, which covers 10 nights of hearings in a four-month period, is 1,500 pages long.

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