Posted by: Patricia Salkin | December 26, 2015

National Ambient Air Quality Standards Do Not Preempt Findings of Adverse Effects in a Special Exception applicant for a large gas station

Editor’s Note: Thank you to Jeff Zyontz, Legislative Attorney, Montgomery County Council for submitting this summary.

Costco’s application for a 16 pump gas station special exception at a regional mall was denied by the Board of Appeals after 37 days of hearings over the course or 17 months and their acceptance of a 262 page report by the Hearing Examiner. The Hearing Examiner’s report recommended denial because the applicant failed to prove by a preponderance of evidence that the proposed use would not adversely affect the health, safety, and general welfare of residents, visitors or workers at the subject site; 118 feet from the nearest residence, 375 feet from a swim and tennis club and 874 feet from public school for students with disabilities. In particular, the Hearing Examiner found that the fumes from the station, the refueling trucks, and idling vehicles would constitute a nuisance, the additional traffic congestion would not be in harmony with residential neighborhood and the applicant did not prove the absence of potential health impacts from air pollution.

The Applicant appealed the Board’s decision by means of a petition for judicial review to the Circuit Court. Costco representatives argued that the National Ambient Air Quality Standards would be satisfied and that preempted the Board from denying the special exception. In addition the applicant argued that that absence of an objective air quality standard made the Board’s decision arbitrary and capricious.

The Court found that the preemption argument was not preserved as an issue in the administrative record and therefore was not properly before the Court. Even if it were before the Court, the Court found, arguendo, that the National Ambient Air Quality Standards are not such a comprehensive legislative scheme that implied the intent preempt local zoning. The Court also did not agree with the “arbitrary and capricious” argument. The Court found that the absence of an objective standard allowed the Board to consider such facts as the location of a school of disabled students on a case by case.

The Board’s denial of the special exception was upheld.

Petition of Costco Wholesale Corporation for the Board of Appeals decision in the Case of BOA Case No. S-2863; Civil Action No.: 404629-V (MD Cir. Ct. 12/18/2015)

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