2021 | Courts

Appellate court strikes down appeal of Gaithersburg Wawa development

Plaintiffs had argued that it didn’t comply with city’s master plan

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A Maryland appellate court on Wednesday struck down a community group’s legal challenge to a planned Wawa gas station and convenience store in Gaithersburg.

The Maryland Court of Special Appeals upheld a portion of a lower court ruling that had affirmed the city’s position, and reversed a part of the ruling that had found the city erred by not giving an opportunity for cross-examination during public hearings on the project.

The Gaithersburg City Council approved a schematic development plan, an initial site plan, for the Wawa in October 2019.

One month later, the plaintiffs filed an administrative appeal in Montgomery County Circuit Court, alleging that the development application didn’t comply with the master plan. Plaintiffs argued the gas station doesn’t constitute a “light commercial use” and is not “consistent with the residential character” of the neighborhood, according to court documents.

The plaintiffs also argued that the city’s Planning Commission didn’t give opponents of the Wawa enough of an opportunity to cross-examine, or question, Wawa representatives and others involved in the project at meetings on Aug. 5 and Sept. 4, 2019.

On May 29, 2020, the Circuit Court ruled that the City Council failed to show that the plan was consistent with the residential character of the master plan. The Circuit Court said the Planning Commission had to allow opponents “a reasonable opportunity” for cross-examination, according to documents.

But the development applicant, 1788 Holdings, then filed a motion to amend the court’s ruling. On June 30, 2020, the Circuit Court partially rescinded its ruling from a month earlier.

The June ruling by the Circuit Court reversed the portion of its May ruling that dealt with the Wawa project’s compatibility with the master plan. But it maintained that the Planning Commission should have allowed an opportunity for cross-examination.

The opposing parties both appealed the Circuit Court’s June ruling, sending the matter to the Court of Special Appeals.

In his opinion on Wednesday, Judge Donald Beachley wrote that the development applicants sufficiently demonstrated that the project would constitute a “light commercial use” due to the presence of a convenience store.

“Because retail sales are expected to outpace fuel sales, and because those retail sales simply involve the sale of food, beverages, and convenience items, there was substantial evidence in the record to support the City Council’s finding that the proposed use would constitute ‘light commercial use,’” Beachley wrote. “Indeed, this predominantly retail-oriented Wawa will be situated next to the Holbrook Shopping Center, which provides retail shopping, including a beer and wine store.”

Beachley wrote that the presence of the shopping center next to the Wawa is an example of how the development is consistent with the “residential character” of the area.

“We shall not second-guess the City Council’s implicit recognition that the Plan would “be in keeping with the residential character of this portion of the Corridor,” he wrote.

Beachley also wrote that the City Council took into account environmental, pedestrian safety and traffic concerns surrounding the Wawa, despite allegations from the plaintiffs that those factors hadn’t been adequately considered.

The opinion goes on to state that at the Aug. 5, 2019 hearing, opponents were allowed to give public comments at the meeting or submit them in writing through Aug. 29. It wasn’t until Aug. 29, the day the record closed, that the plaintiffs’ counsel wrote in a letter that opponents should have been allowed an opportunity for cross-examination at the hearing.

“We hold that, by waiting more than three weeks to note an objection or complaint, Opponents waived their right to cross-examine 1788 Holdings’ witnesses at the August 5 hearing,” Beachley wrote.

Similarly, Beachley noted that the project’s opponents never requested an opportunity for cross-examination at the Sept. 4, 2019, hearing and never raised the issue until two weeks later.

“Opponents waived their opportunity to cross-examine witnesses at the September 4, 2019 hearing, and the circuit court erred in remanding on this basis,” Beachley wrote. “We shall therefore reverse the judgment of the circuit court as to its decision ordering cross examination, but otherwise affirm the circuit court’s approval of the City Council’s adoption of [the project].”

Gaithersburg Mayor Jud Ashman told Bethesda Beat in an interview on Thursday that the appellate court’s ruling is a “step in the right direction” and he thinks the Wawa project will be able to move forward.

“The claim that the neighbors were making in their suit was that we didn’t follow our process and the city didn’t provide them with sufficient opportunities to participate in the process,” he said. “And the court is saying we did follow our process. We did have substantial evidence in the record to make our decision, and we did provide opportunity for the public to participate.”

The plaintiffs could appeal the ruling to the Maryland Court of Appeals, Board wrote in an email to Bethesda Beat on Thursday. The high court would then have to decide whether to take up the appeal, which is known as granting certiorari.

“Generally the court only grants certiorari if they believe the case has statewide implications,” she wrote. “The Court of Special Appeals will issue mandate in the case 30 days after the date of their decision. If the Plaintiffs chose to file a petition for Writ of Certiorari, it must be filed within 30 days from the date of the mandate.”

Dan Schere can be reached at daniel.schere@bethesdamagazine.com