Ocean View loses controversial case over gas pumps

The Town of Ocean View on March 31 received notice from the Court of Chancery of the State of Delaware that Norino Properties LLC is indeed “entitled to a declaratory judgment that its proposed convenience store with eight fuel pumps is a permitted use in the GB General Business District under Ocean view’s code.”

The town in 2009 had denied Norino a conditional-use approval for the gas pumps off Route 26 near Savannah’s Landing, after several public hearings during which residents were split over the benefit of the nearby gas station versus its potential downsides, including traffic and safety hazards.

The parcel of land – just over 4 acres in size – is located beside the Royal Zephyr restaurant along Atlantic Avenue, across from the entrance to Savannah’s Landing. Norino had proposed three retail/office structures to be built on the land, including a convenience store equipped with eight gas pumps.

Town officials determined that gas pumps were not permitted within the town code and that the plan therefore required a conditional-use approval from the council, which the council eventually denied on a 3-1 vote. (Then-newly-elected Councilman Perry Mitchell abstained from the vote due to his prior nay vote on the application as a member of the town’s Planning & Zoning Commission.)

“Convenience stores with gas pumps generate high volumes of traffic,” argued then-Councilman Roy Thomas in his vote against the application. “The entrance (to the gas station) is opposite Savannah’s Landing, causing concerns about safe vehicular movement.”

They could still build a convenience store, said then-newly-elected Mayor Gordon Wood.

“Convenience store does not mean gas station,” said Wood at the time. “You can see convenience stores without gas stations. I shall not support gas stations at this location or at any location on Route 26.”

Wood said the town was already experiencing a traffic disaster on Route 26, which is still scheduled for a project to widen it to two travel lanes and a center turn lane through the entire town and beyond.

In his review of the code for the vote, Wood said in 2009, he did not believe gas stations to be a permitted use in the town. He said gas stations are neither essential nor desirable.

Then-Councilman Richard Nippes said he agreed with Wood that the gas station was not desirable for the small town of Ocean View.

“My strongest reason for opposition is the fact that the gas pumps would be located very near an ecologically sensitive area,” said Nippes. “No one has convinced me that the gasoline is going to be cleaned out of the water before it enters the ground.”

Then-Councilman Bill Wichmann refused to give his reasons for voting in support of the proposal, stating only that the comments from the other councilmen made his view a “moot point.”

After the denial, Norino filed suit against the town, asserting that a convenience store with gas pumps is, in fact, a permitted use-by-right in the town’s GB-General Business district, and that the town council therefore erred in its interpretation of the code when it denied the use.

Initially, the town was told it was in the right. Master Kim Avayzian ruled in the favor of the Town of Ocean View, finding that the gas pumps in question were not a permitted use in a GB-General Business district and that the evidence at the various hearings supported the reasons given by the majority of the council members in denying the application.

(A master is a lawyer appointed by the Court to hear cases and make recommendations on their depositions. While not judges, they have many of the same powers. They do not issue orders, but issue reports.) However, the losing party in such a case can contest it, which Norino did, resulting in this most recent legal finding in the case – against the Town of Ocean View.

The March 31, 2011, finding states that Norino is allowed to have gas pumps, specifically because the “ordinary meaning to be ascribed to the phrase ‘convenience store’ includes the right to sell gasoline.”

John Zorzit, president of Norino Companies and owner of the lot, explained in 2009 why he had made the proposal.

“I felt it was time to do something with this parcel. Instead of requesting a major gas station – which I was sure the town didn’t want – we’ve scaled the project down,” he explained. He also mentioned that the lot had previously been denied approval for development as a residential community.

Back in 2009, Zorzit had presented a petition of roughly 100 signatures in favor of the pumps.

“It would help promote revenue for the town, and benefit the people. We’re willing to work with anybody and everybody,” he said.

The final report issued March 31, 2011, stated that “a convenience store is a permitted use in the subject property’s zoning district. Ocean View’s code is silent as to the sale of gasoline and other fuels in the zoning district. Moreover, it does not even define ‘convenience store.’”

The phrase “convenience store” first appeared in the Ocean View zoning code as a permitted use in the GB District in 2003. The town has previously had gas stations within town limits but has not had one in many years. The question in the case was ultimately one of whether the term “convenience store” includes the sale of fuel.

The finding this week states that the town cannot interpret the ordinance as it was interpreting it.

“Ocean View essentially argues that the Court should defer to its ipse dixit that fuel pumps are not allowed,” the Court said of the town council vote, using the Latin phrase meaning a statement that is asserted but not proved, one that is to be accepted based only on faith in the speaker.

“To some extent, there is a ‘the ordinance means what we say it means’ aura to is position. Such an argument fails under the recent Supreme Court decisions of Dewey Beach Enterprises and Chase Alexa.” (Dewey Beach Enterprises, Inc. v. Board of Adjustment Dewey Beach, 2010, and Chase Alexa v. Kent County Levy Court, 2010).

The Court of Chancery’s finding confirmed the final report on the case, which concluded that Norino Properties was correct in its interpretation of the ordinance – that a convenience store with gas pumps is a permitted use within the GB District within the Town of Ocean View.

(Wood could not be reached for comment on this story prior to the Coastal Point’s press deadline.)