Lucky Stores, Inc. v. Board of Appeals

⁵¹⁵ Barnes, J., delivered the opinion of the Court. The appellant, Lucky Stores, Inc., which operates Memco Department Store (“Lucky Stores” or “Memco”), presents two questions for resolution by us, i.e., (1) whether Section 59-124(f) of the Zoning Ordinance for the Maryland-Washington Regional District in Montgomery County 1 (the Zoning Ordinance), providing, in relevant part, that the appellee, Board of Appeals of Montgomery County (Board), before granting a special exception for a gasoline filling station, find “from a preponderance of the evidence of record that for the public convenience and service a need exists for the proposed use for service to the population in the general neighborhood considering the present availability of such uses to that neighborhood” is unconstitutional by denying Lucky Stores due process of law and the equal protection of the laws and (2), assuming the constitutionality of that provision, whether the Board, in the present case, had a reasonable basis to support its denial of the special exception requested by Lucky Stores. The Board denied Lucky Stores’ application for the special exception on November 9, 1971; and the Circuit Court for Montgomery County (Moorman, J.) affirmed the action of the Board in a well-considered, written opinion and order filed April 6,1973. A timely appeal to us was taken by Lucky Stores from this order.

We have concluded that the lower court ruled correctly and we will affirm its order of April 6, 1973. Memco is the operator of a discount department store located on an 11.31 acre tract of land on the west side of Rockville Pike, south of Rollins Avenue, zoned C-2, General Commercial. On April 29, 1971, it filed with the Board a petition for a special exception to use a portion of the tract for the construction and operation of an automobile filling station. The proposed filling station was to be a part of a ⁵¹⁶ large “one-stop” shopping center constructed on part of the tract, consisting of a department store, pharmacy, food store and a tire, battery and accessory (TBA) center, all of which, except the filling station, has been completed during the progress of the present litigation and is in operation.

The total investment in the facility, including the improvements, is approximately $3,000,000.00. A public hearing was conducted by the Board on September 9, 1971. Memco’s first witness was David Waddell, Director of Memco’s Eastern Operations. He testified that Memco owns and operates 27 shopping facilities on the West Coast and in Arizona, similar to the twTo stores it owns and operates in Virginia and the two in Maryland.

He described the general layout of the shopping center and explained that a “one-time lifetime membership fee of $1 for the entire family is charged as a prerequisite to shop. The proceeds of these fees are devoted largely to charitable and scholarship foundations administered by local community leaders to be spent in the areas the stores are located.” He stated that the “sale of gasoline at TBA sites is an important part of the business program” and that, in his opinion, “there presently exists a valid commercial need for this additional business privilege.” He further testified that gasoline is an essential commodity necessary for a one-stop shopping concept. Mr. Waddell stated that the proposed filling station would be open from 7:00 a.m. to 10:00 p.m. daily and from 9:00 a.m. to 5:00 p.m. on Sundays. He further stated that 80% of the filling station patrons would be membership customers, already on the premises, shopping at the Memco facility.

Neither of the two Memco stores presently operating in Maryland has a filling station connected with it. The one in Fairfax, Virginia, however, does have a filling station. He stated that his estimated gallonage for the proposed filling station, based on the averaging of the existing stores, would be from 90,000 to 100,000 gallons a month. Memco’s next witness, Ron Polniaszek, a registered architect, explained the site plan for the proposed filling station, pointing out that it would have four parking spaces based on the number of employees that work at the filling ⁵¹⁷ station and describing the type of signs to be installed and the lighting to be used.

He stated that the filling station “is located in an area of cut on the site, it has a berm of 12 feet average which is connected all the way across 12 feet. You really cannot see the filling station itself from Rockville Pike as you are traveling southbound. . . . The filling station itself is arranged in such manner it cannot be seen from the Rockville Pike.” There are to be no signs facing Rockville Pike that identify the filling station. He further testified in regard to the availability of utilities and the access to the site, stating that there would be no overburdening of existing public facilities resulting from the proposal.

Memco’s next witness was Stanley Hatfield, a design engineer who is the manager of the construction engineering division of DiGas Corporation, which is responsible for the design, engineering, and operation of the proposed filling station. Based upon figures taken from a typical week in August, 1971, at the Fairfax Memco Store, he stated that “between 80-82 percent of the traffic into the Memco filling station will come from traffic already on the department store premises.” He pointed out that “only 4 percent of the service station’s business is done on Sunday, the day the main Memco store is closed.” In regard to the need for the proposed filling station, Mr. Hatfield testified: “It is a fair question to ask why, in view of the numerous other existing filling stations in the area along Rockville Pike, there is a need for Memco to provide gasoline to its customers. The answrer to this question is basically twofold: “a. Part of Memco’s overall service to its customers is a complete ‘one-stop’ shopping service, including groceries, clothing, prescriptions, appliances, and complete automotive services, including a tire, battery, and accessory store, and gasoline.

These services are being provided at virtually all of Memco’s 27 stores throughout the country and have helped to create a national image of the store as a complete one-stop shopping center. ⁵¹⁸ “b. More importantly, we offer a service which is unique insofar as comparing a Memco facility to those of major oil companies and other independent operators. First of all, Memco appeals to a different clientele from that which patronizes the major oil stations. As you know, most people who carry a Shell, Standard, Texaco, Gulf, or other major oil company card are generally not inclined to trade at other locations.

These persons, we have found, do not normally utilize Memco’s services.” (Emphasis supplied.) He also stated that Memco furnishes “full service station services” while others “such as Giant, Hess, Scot, etc., do not . . . He was of the opinion that the freestanding filling stations of the major oil companies are “highway-oriented” whereas 80 per cent of the Memco service station customers are persons who came to the Memco store to shop generally and not primarily for gasoline. “Only 20 percent of the Memco station patrons visit the station alone and these persons are not likely to have made a special trip for this purpose.” He was of the opinion that the Memco operations “neither conflict with nor draw away from other free-standing major oil company stations,” and this opinion was confirmed, he stated, by the experience at other Memco filling station sites, giving specific data in regard to the Fairfax Memco site. Mr. Hatfield was of the opinion that the proposed filling station would not cause a nuisance because of noise, odors, or physical activity and would have no adverse effect on traffic. Board member O’Brien then asked Mr. Hatfield: “MR.

O’BRIEN: Why do you feel Rockville Pike needs another gas station? “MR. HATFIELD: We feel Memco as such for its complete operation needs it to serve its members. “MR. O’BRIEN: I think the ordinance says a clear and present need must be demonstrated. I assume ⁵¹⁹ that meant the public.

Why does the public need a new gas station on Rockville Pike? “MR. HATFIELD: It completes our one-stop shcypping complex which is a national advertised program. “MR. O’BRIEN: Do you think that is your fullest answer on that? “MR. HATFIELD: Yes.” (Emphasis supplied.) Mr. Hatfield further stated that he knew “there are quite a few service stations [on the Rockville Pike].

I also know there are again the major oil company stations which derive most of their traffic from the highway, and ours which we again hope to bring our traffic from our membership on the lot.” He testified that Memco would sell its gasoline three to five cents per gallon cheaper than the major oil company stations. Giant Food Store provides a similar discount, but does not provide the full services Memco expects to provide. Memco’s last witness was Stephen G. Petersen, a traffic, planning, and engineering consultant. He was of the opinion that “the service station will have a minimal traffic impact and will not cause increased hazard on the adjacent roads,” giving detailed figures and data to support that opinion.

Five witnesses appeared in opposition to the granting of Memco’s petition for the special exception. The first witness was Jack Hoffmeister, Chairman of the Greater Washington Service Station Association Zoning Committee. Other members of this committee were William Crouch and Dick Wilson. They “discussed and interviewed most of these 25 service station dealers in this Rockville marketing area.” The Rockville marketing area “is 3.8 miles from Randolph Road to Dodge Street at the tip of the inner city of Rockville.” Mr. Hoffmeister had prepared a chart, which was admitted into evidence, showing the locations of the 25 stations in the Rockville marketing area.

This exhibit shows that there are four filling stations at the intersection of Rockville Pike and Rollins Avenue. On the southwest corner (adjoining the Memco tract) is the Bill Crouch Texaco station; on the northwest corner is the Dick Wilson Shell station; on the southeast ⁵²⁰ corner is the Captain’s American station; and on the northeast corner is the Adams Gulf station. The Johnson Shell filling station is a short distance to the south of the Captain’s American filling station and is directly across Rockville Pike from the Memco tract. Still farther to the south on the east side of the Rockville Pike is the Super Giant Shopping Center.

Mr. Hoffmeister stated that the Rockville marketing area is “a heavy automotive oriented area in which we have . . . 25 service stations with three tire service stores, six auto dealerships, three auto specialty shops which are Midas, Aamco, and Sure-Fit, and two car washes.” He added that a new Finnegan gas-car wash, consisting of three pump islands having six pumps per island, would open in the near future and be a high volume outlet. He further stated that within the marketing area there were seven brands and two unbranded (Gem and Giant) stations from which the public could currently purchase gasoline. Mr. Hoffmeister conducted a survey by sending a questionnaire to the 25 filling stations in the marketing area, requesting answers from them. He received replies from 10 stations and considered this to be satisfactory and the tabulations “credible” because of the representative nature of the replying stations.

From this survey. — which covered the calendar years 1969, 1970, and 1971 — he calculated that the gallonage for the marketing area service stations shows a 12% decrease for the year 1971. The peak year for gallonage was in 1970. This decrease, in his opinion, was “because of increased service stations in Montgomery County in this area. On our chart we have two Esso’s that have been built, opened in the last year.” He also pointed out that during this period, Maryland gasoline taxes increased 5% so that it would be reasonable to expect a 5% increase of sales of gasoline in the marketing area, but instead there was a decrease in volume of gasoline sold in the marketing area.

He also observed that there were “discount operators” already in the marketing area, i.e., Giant a.nd Gem. The next witness for the opposition was Mel Lipkin, the General Manager of the Gem Department Store on Nicholson Lane (to the south of the Memco site). He testified ⁵²¹ in regard to Gem’s discount operation (four to five cents less per gallon) and indicated that the Memco and Gem operations were “very similar” and “in fact we are almost parallel.” He stated that Gem was not operating at its maximum capacity and was “[c]apable of doing more [gasoline business].” William Crouch next testified. He is the operator of the Texaco station located at the southwest corner of Rockville Pike and Rollins Avenue, “right next door” to the Memco tract.

He testified that his station was capable of doing more business. He had calculated his gallonage trend for the past two or three years and concluded that there was a downward trend beginning approximately January of 1971. For example, last summer his filling station was pumping approximately 78,000 to 79,000 gallons, but “this year [1971] we are down to approximately 66,000.” He testified that the public had no difficulty in obtaining service at his station or at the other stations in the general area. There was no “traffic piled up” so that the public could not get to the gasoline pumps.

Gene A. Johnson, the operator of Johnson Shell, Inc. located on Rockville Pike across from the Memco tract, stated that his station could add 25% more gasoline business. His sales of gasoline have decreased. The last witness for the opposition was Dick Wilson, who operates a Shell station on the northwest corner of Rockville Pike and Rollins Avenue across from “Bill Crouch’s Texaco.” Mr. Wilson’s service station is a “new modern station rebuilt in the last few years.” It has four pump islands and could handle “double, probably three times what I am doing now . . . [wjithout inconveniencing the customers.” His customers do not have to wait in line “for either service or gasoline.” He supplies “full service . . . anything so far in mechanical service.” His gallonage for the past three months was down by approximately 8,000 or 9,000 gallons per month. The Board, on November 9, 1971, filed its opinion.

After reviewing the facts, it stated in its opinion: “Upon consideration of the testimony and ⁵²² evidence of record, the Board cannot find that the petitioner has demonstrated a need for the proposed automobile filling station as required by Section 111-36Í. [now 59-124(f)] of the Zoning Ordinance inasmuch as there are already existing sufficient automobile filling stations equipped to serve the needs of vehicles traveling in each direction on Rockville Pike.” It passed an order the same day, denying the special exception. As we have indicated, on appeal, the Circuit Court for Montgomery County was of the opinion that there was sufficient evidence before the Board to make the question of “need” fairly debatable and hence the Board’s finding was not arbitrary and capricious and should be affrmed. (1) Constitutionality of Section 59-124.(f)—formerly Section lll-S6f—of the Zoning Ordinance. Section 85-83 of the Montgomery County Code, as amended — Laws of Maryland, 1959, Chap. 780, as amended — provides, as follows: “85-83.

Special exceptions to zoning regulations. A district council, in its zoning regulations, may provide that the board of zoning appeals or the district council, or in Montgomery County, an administrative office or agency designated by the district council, in appropriate cases and subject to appropriate principles, standards, rules, conditions, and safeguards set forth in the regulations, may either grant or deny, upon such conditions as may be deemed necessary to carry out the purposes of this Chapter, special exceptions and variances to the provisions of the zoning regulations in harmony with their general purposes and intent. The decisions of the administrative office or agency in Montgomery County shall be subject to an appeal to either the board of appeals or such other ⁵²³ administrative body as may be designated by the district council, and such appeal shall follow that procedure which may, from time to time, be determined by the district council. The district council may also authorize the board of zoning appeals to interpret the zoning maps or pass upon disputed questions of lot lines or district boundary lines or similar questions as they arise in the administration of the regulations.” (Emphasis supplied.) Sections 59-123, 59-124, and 59-131 of the Montgomery County Code, as amended, provide in regard to special exceptions generally and special exceptions for automobile filling stations in particular: “Sec. 59-123.

Prerequisites to granting. “(a) A special exception may be granted when the Board, or the Director, as the case may be, finds from a preponderance of the evidence of record that the proposed use: “(1) Will be consistent with the general plan for the physical development of the district including any master plan or portion thereof adopted by the Commission; "(2) Will be in harmony with the general character of the neighborhood considering population density, design, scale and bulk of any proposed new structures, intensity and character of activity, traffic and parking conditions, and number of similar uses; “(3) Will not be detrimental to the use, peaceful enjoyment, economic value, or development of surrounding properties or the general neighborhood; and will cause no objectionable noise, vibrations, fumes, odors, dust, glare or physical activity; “(4) Will have no detrimental effect on vehicular or pedestrian traffic; ⁵²⁴ “(5) Will not adversely affect the health, safety, security, morals, or general welfare of residents, visitors, or workers in the area; “(6) Will not, in conjunction with existing development in the area and development permitted under existing zoning, overburden existing public services and facilities, including schools, police and fire protection, water, sanitary sewer, public roads, storm drainage, and other public improvements; and “(7) Meets the definition and specific standards set forth elsewhere in this ordinance for such particular use. “(b) The applicant for a special exception shall have the burden of proof which shall include the burden of going forward with the evidence and the burden of persuasion on all questions of fact which are to be determined by the Board or the Director.” Additional terms and conditions are contained in Section 59-124, which provides in pertinent part: “Sec. 59-124. Additional terms and conditions. “(a) The Board, or the Director, when appropriate, is hereby empowered to add to the specific provisions enumerated herein others that it may deem necessary to protect adjacent properties, the general neighborhood, and the residents, workers and visitors therein.” “(f) In addition to the findings required in sections 59-123 and 59-125 through 59-184, the following special exceptions may be granted when the board or director, as the case may be, finds from a preponderance of the evidence of record that for the public convenience and service a need exists for the proposed use for service to the population in ⁵²⁵ the general neighborhood considering the present availability of such uses to that neighborhood: “(1) Automobile filling stations. (2) Automobile and light trailer rental lot, outdoor. (3) ....

(4) Automobile sales and service centers. (5) Medical clinics. (6) Swimming pools, community. (7) Swimming pools, commercial.” (Emphasis supplied.) Section 59-131 contains special provisions in regard to automobile filling stations and, in relevant part, provides: “Sec. 59-131.

Automobile filling stations. “(a) In a C-l, C-2, 1-1, or 1-2 zone, an automobile filling station may be permitted, upon a finding, in addition to findings required in sections 59-123 and 59-124, that: “(1) The use will not constitute a nuisance because of noise, fumes, odors or physical activity in the location proposed. “(2) The use at the proposed location will not create a traffic hazard or traffic nuisance because of its location in relation to similar uses, necessity or turning movements in relation to its access to public roads or intersections or its location in relation to other buildings or proposed buildings on or near the site and the traffic pattern from such buildings, or by reason of its location near a vehicular or pedestrian entrance or crossing to a public or private school, park, playground or hospital, or other public use or place of public assembly. “(3) The use at the proposed location will not adversely affect nor retard the logical ⁵²⁶ development of the general neighborhood or of the industrial or commercial zone in which the station is proposed, considering service required, population, character, density and number of similar uses.” These provisions of the Montgomery County Zoning Ordinance were recently considered by us in American Oil Company v. Board of Appeals of Montgomery County, 270 Md. 301 , 310 A. 2d 796 (1973). No challenge to'their constitutionality on the specific grounds raised by Memco in the present case was made in that case and these specific grounds were not considered by us. We now turn to such a consideration. Memco first contends that Section 59-124 (f) denies it due process of law guaranteed to it by Article 23 of the Declaration of Rights of the Maryland Constitution and by Section 1 of the Fourteenth Amendment to the Federal Constitution and also the equal protection of the laws also guaranteed to it by Section 1 of the Fourteenth Amendment.

Its argument is two-pronged, i.e., (a) Section 59-124 (f) permits the use of the zoning power to eliminate competition, as was allegedly done in this case, and hence bears no reasonable relationship to the public health, safety, morals, or welfare and (b) no adequate guides or standards are provided in the delegation of this zoning power to the Board. (a) We begin our consideration of the constitutional attack upon Section 59-124 (f) by observing that it is well established that an ordinance is presumed to be constitutional and the burden is upon the one attacking it to establish clearly that it is unconstitutional. Gino's of Maryland, Inc. v. Mayor & City Council of Baltimore, 250 Md. 621, 636 , 244 A. 2d 218, 226-27 (1968) and prior Maryland cases cited in that opinion. We have in prior decisions indicated that the use of the words “neighborhood” and “need” in ordinances delegating to zoning administrative bodies the power to grant special ⁵²⁷ exceptions gave a sufficiently definite guide for those bodies.

In Neuman v. Mayor & City Council of Baltimore, 251 Md. 92 , 246 A. 2d 583 (1968), the Board of Municipal and Zoning Appeals of Baltimore City granted a special exception to a physician for the use as a nonresident physician’s office in Baltimore City of an apartment unit in an apartment house in a residential use district. The Baltimore City Zoning Ordinance required, inter alia, that the Board determine whether the grant of a special exception would menace the public health, safety, security, or morals and, as a further guide, the Board was required to give consideration to: “ ‘(1) The