Zoning Amendment Targeting Costco Gas Station Determined 'Unlawful'

The county executive office's legal team released a memo in which they determine that the proposed zoning text amendment affecting gas stations is not legal.


The Montgomery County Executive's legal team concluded this week that , which would have directly impacted Wheaton’s proposed Costco gas station, is not legal. 

The zoning amendment would have required any gas station that processes more than $3.6 million gallons of fuel per year be located “at least 1,000 feet from any public or private school, or any park, playground, or hospital, or other public use, or any use categorized as a cultural, entertainment and recreation use.” 

The proposed Costco gas station would be located 300 feet from the and is the only gas station that would be directly affected if the zoning amendment passed.

Read the full PDF of the decision to the right.

The council’s legal team determined that the zoning amendment violates Article 24 of the Maryland Declaration of Rights and the 14th Amendment of the U.S. Constitution by unfairly targeting the Costco gas station. 

They wrote that when statutes are challenged under Article 24 and the 14th Amendment, the courts examine whether the statute “provides a real and substantial relation to the public health, morals, safety and welfare of the citizens of this state.”

The ZTA was proposed to protect the public from potential health risks and traffic congestion generated by large gas stations. 

However, the legal team determined that the size and siting standards in the amendment are extremely narrow, and “if health risks and traffic are truly a concern, then the ZTA would broadly apply to all gas stations.” 

At the beginning of the month, county in a memo to the county council members in which he says the proposed Costco station is the only one impacted by the zoning amendment.  

In their opinion, the legal team wrote, “the ZTA is narrowly tailored to prohibit a single proposed business and is not rationally related to the furtherance of a legitimate government objective.”  

They concluded that the zoning amendment is unlawful because it would only apply to the Costco station and was created with the intention of prohibiting the station.  

For more information and background on the gas station and zoning amendment, check out all our Costco gas station coverage in reverse chronological order.

Jason Taylor July 22, 2012 at 06:52 PM
I have to also agree. It would be cool to see this played out by the courts. But it would be an uphill battle if it's really unconstitutional, as the 14th Amendment of the U.S. Constitution isn't going anywhere. I'm confused about a few aspects of what is going on, as they seem to contradict each other, but I guess Marc Elrich, Valerie Ervin and Nancy Navarro should be applauded at least for their valiant effort in backing ZTA 12-07 (and thus standing up against costco) even if it ended up losing.
Jeff July 24, 2012 at 05:45 PM
Not only does the zoning amendment violate Article 24 of the Maryland Declaration of Rights and the 14th Amendment of the U.S. Constitution by unfairly targeting the Costco gas station, but it also sends the wrong message to companies who want to do business in Montgomery County. This legislation clearly targets Costco’s proposed use without clearly showing adverse affects on the surrounding neighborhood nor contain any scientific basis or support. The Council needs to step back and recognize the negative message ZTA 12-07 is sending to our business community. It is my hope that the County Council will continue to work hard to maintain the highest standard of ethics and develop close partnerships with current and future businesses. The county and business must share a common goal of driving revenue and growth in county. If the Council adopts ZTA 12-07, I will continue to drive to the Costco in Beltsville (a 7.7 mile distance) and will continue to spend my money in a more business friendly jurisdiction. For these reasons, I urge the County Council to vote "no" on amendment ZTA 12-07.
HaveSomeSense August 03, 2012 at 07:53 PM
That's just ridiculous. Put in a gas station, just don't put it next to a residential swimming pool, residences and close to a school. This is common sense. Greed clouds judgement so easily.
Steve Davies August 05, 2012 at 07:28 PM
The association is right: Emissions from idling vehicles are a health hazard. So, here are a couple of proposals: Costco should prohibit idling in all its gas station lines nationwide. Drivers should take a number and wait to fill up. Think of the tons of emissions NOT released into the environment. Secondly, the civic association and swim club should require less-harmful lawn care practices. Tests conducted by Edmunds (http://www.edmunds.com/about/press/leaf-blowers-emissions-dirtier-than-high-performance-pick-up-trucks-says-edmunds-insidelinecom.html) "found that a Ryobi 4-stroke leaf blower kicked out almost seven times more oxides of nitrogen (NOx) and 13.5 times more carbon monoxide (CO) than the Raptor.... An Echo 2-stroke leaf blower ... generat[ed] 23 times CO and nearly 300 times more non-methane hydrocarbons (NMHC) than the Raptor. "The hydrocarbon emissions from a half-hour of yard work with the two-stroke leaf blower are about the same as a 3,900-mile drive from Texas to Alaska in a Raptor," said Jason Kavanagh, Engineering Editor at Edmunds.com. I have tried repeatedly to get Councilmember Elrich's attention on this issue, but he has not responded to my emails. Emissions from all sources are harmful: Leaf blowers, for example, emit formaldehyde, acetaldehyde, benzene and 1,3-butadiene -- all suspected carcinogens, and all emitted in much closer proximity to the yards (and lungs) of residents of Kensington Heights.
Bert August 11, 2012 at 03:56 AM
I'm for Costco putting a gas station near my home in Wheaton Anyone complaining about the proposed Costco gas station in Wheaton needs to look at the impact of the gas station Costco runs in College Park. 1) Gas is up to 30 cents a gallon cheaper, not only at Costco, but at all the nearby gas stations that have to compete with Costco (the "Costco effect" on gas prices is well known in College ParK). Everyone in the Wheaton-Kensington-Glenmont area will save 5-10% (sometimes more) on gasoline. 2) About 2 cars a minute fill up during peak hours. This is less than 2% of the traffic flow on Georgia Avenue (100-200 cars per minute). There will be no significant impact on traffic in the Wheaton area. 3) The traffic at the gas pumps in College Park never spills over onto the street, it is always contained on the Costco property. There is basically no impact on the surrounding neighborhood. 4) The proposed gas station is not convenient from the Beltway (people will not drive all the way up Georgia to get cheap gas, they may fight the traffic once then decide it is not worth it). Plus Costco stations are for members only. The majority of customers at the gas station will be local residents. 5) As a former College Park resident (and current Wheaton resident) I can tell you the Costco gas station will be a huge benefit to the community.


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