Norino Properties, which earlier this year proposed a convenience store and gas pumps for property on Route 26 in Ocean View, has filed suit against the town, citing what they say was an unfair denial of the project in July.
The town had not received official notice of the suit from Norino as of Wednesday, Sept. 10, but Town Solicitor Dennis Schrader said he was aware the suit had been filed, and the Coastal Point has obtained a copy of the filing.
The proposal was to build eight gas pumps, as well as a convenience store and locations for other businesses, across from the entrance to Savannah’s Landing on Route 26. In hearings before the town’s Planning and Zoning Commission and the town council, citizens were split on whether the proposal would be good for the town.
Baltimore-based Balsamo & Norino Properties said the town would be improved by the business because residents would not have to travel as far for gas or a convenience store. Some citizens agreed, while others cited concerns about potential traffic problems and environmental threats from underground fuel storage.
Themselves split on the issue, the Planning and Zoning Commission did not offer a formal recommendation to the town council on whether to grant approval the gas pumps.
The council subsequently voted 3-1 to deny the use, Councilman Roy Thomas citing traffic concerns and Mayor Gordon Wood saying he felt the gas pumps were not among uses permitted in the town’s code. Councilman Bill Wichmann favored the proposal, without additional comment, while Councilman Perry Mitchell recused himself, owing to his place on the Planning Commission during that body’s deliberations on the application. Councilman Richard Nippes was opposed.
After the denial of the gas pumps by town council, Bret Martine of Century Engineering, an engineer for the project, said the owners planned to go back to the drawing board for the property’s use.
Suit asserts use is already permitted in town
They subsequently decided to file suit against the town in the state’s Chancery Court, stating that the denial ran contrary to the town’s land-use plan and that the decision had been reached improperly, as the result of ex parte communications — namely, discussion in council executive sessions prior to the vote.
The filing by Norino Properties asserts 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 council erred in its interpretation of the code when it denied the use.
The town code related to that district does list “convenience store” as a permitted use, but it does not specify whether gas pumps are permitted, and the town code also states, “Unless the contrary is clear from the context of the lists of other regulations of this chapter, uses not specifically listed are prohibited.”
In asserting that a convenience store with gas pumps is a use by right in the district, Norino Properties may be suggesting that “convenience store” as a permitted use inherently includes gas pumps, despite the lack of a specific notation to that effect.
The town does not currently include “gas station” as a permitted use in the GB district, though the town did in its past have gas stations within its town limits.
Schrader this week said he did not recall the specific circumstances for removal or lack of inclusion of gas stations as a permitted use in the town code. He declined to comment on the merits of the suit, citing the pending litigation and the town not yet formally being served in the case.
Gas stations are still included among the uses having specific parking requirements as listed in the town code for the GB district, as are convenience stores, but the two uses are listed separately in the table of those requirements.
The suit also asserts that the council made its decision based on facts not in evidence before it and on ex parte communications, including those executive sessions.
Norino is asking the court in its petition to find either: (a) that the proposed convenience store with gas pumps is a permitted use in the district and issue an injunction to keep the town from interfering with that use of the property; or (b) that the council’s decision was in error, being based on facts not in evidence and lacking evidence of the basis for the decision, and/or that the requirements for a conditional use have been met, and thus issue an injunction requiring a conditional use permit to be issued.
They are also asking that the court grant them court costs and fees from the town, if such a decision in Norino’s favor is reached.
Town Manager Conway Gregory said this week that he plans to notify the town’s insurance liability carrier as soon as official word of the lawsuit is received by the town.
In other Ocean View legal news:
· Gregory said the case of Collazuol and White v. the Town of Ocean View, dealing with street widths, has been successfully concluded in favor of the town. The Chancery Court granted the town’s motion for summary judgment and concluded that the Planning and Zoning Commission’s decision in the case was not ambiguous. It was recommended the plaintiffs appeal to the Board of Adjustment.
· A new lawsuit was filed Aug. 30 against former Mayor Gary Meredith by Wallace “Wally” Brown, Lloyd Roberts, William Hoffman, Joseph Cane, Edward B. Walsh, Gary H. Biddinger and Sondra Waite in U.S. District Court. The suit deals with the water system and includes a long list of what the plaintiffs call “illegal activities” performed by the mayor over six years, said Gregory.
— Reporter Rachel Swick contributed to this story.