Wegmans foes lose a round

Hearing examiner dismisses appeal

case might go to state's highest courts

July 31, 2008|By Larry Carson | Larry Carson,Sun reporter

A lawyer representing opponents of the proposed Wegmans store in Columbia is vowing to take the case to Maryland's highest courts and perhaps to federal court despite another setback this week.

Meanwhile, Wegmans is preparing to move forward with the project despite the legal appeals, said Stephen Leaty, the grocery chain's project manager.

"It really is an internal scheduling thing. We're anxious to get going on this," he said, but months of internal planning and preparations are required. Wegmans officials have said they hope to begin work on the store next year.

The Wegmans building and 939 parking spaces would be built on 12.2 acres at Snowden River Parkway and McGaw Road, where it would replace a warehouse last used to film scenes for the HBO television series The Wire.

Susan B. Gray, the attorney representing three residents who live near the site of the proposed 160,000-square-foot, two-level store, said she believes county approval of plans for the supermarket on land zoned and used as part of an industrial park violates the rights of all county residents.

"It's the most fundamental issue of democracy," she said, explaining that if the land's use were changed by a County Council resolution, voters could petition that to referendum. Approval of the store plan without using a formal resolution denies county residents the chance to vote on the issue.

Leaders of unions whose members work at other area supermarkets such as Giant and Safeway have also opposed Wegmans, which is a nonunion store.

Gray lost another round Monday when county hearing examiner Michelle LeFaivre dismissed an appeal based on alleged discrepancies in the traffic analysis for the store. LeFaivre also refused to allow testimony from Harry B. Roth, a planning consultant, on the zoning issue, but that is the subject of a separate appeals case.

After the hourlong hearing in the George Howard Building, Gray said that the county's standards for traffic congestion under the Adequate Public Facilities Ordinance "are so weak it's essentially irrelevant."

"The county did not require the type of [traffic] study that would show if the APFO test would be met," she argued during the hearing.

But LeFaivre agreed with a motion to dismiss the case offered by Richard B. Talkin, the lawyer for Wegmans.

"Nothing has been proven in this matter," Talkin argued, noting that Frank Tavani, the Pennsylvania traffic expert Gray presented, agreed that he could not say the store's traffic analysis fails the county's APFO requirements.

Tavani testified that the Traffic Group analysis on traffic around the store site failed to test volumes for Saturdays and underestimated the number of vehicles passing by the store on weekdays that would likely stop there. Talkin countered that the counts done for Friday's peak evening rush hours were about equal to what might be expected on a Saturday, and noted that Tavani never did his own traffic analysis.

The evidence Tavani did present did not meet the legal standard for reversal, LeFaivre said, because it did not show that county approvals of the store's traffic studies were arbitrary or capricious.

"You've not met your burden of proof," LeFaivre told Gray.

Gray said the case likely would end up in the Maryland Court of Special Appeals or the state Court of Appeals, or both, and possibly in federal court on the voting rights issue.

"We've got to go through the process," she said.

larry.carson@baltsun.com

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