BERLIN – The town’s board of appeals denied approval to a Dollar General proposed for a busy Berlin intersection in a special hearing this week.
The Berlin Board of Appeals voted 3-1 to uphold the decision of the town’s planning director to deny a zoning certificate for a Dollar General store proposed near the intersection of Routes 113 and 346.
“It was a difficult decision,” said Joe Moore, chairman of the board.
Representatives from Oxford Chase Development, the company behind the proposed Dollar General, have not yet decided if they will pursue an appeal of the decision in circuit court.
“The general feeling is we have been wronged,” said John Camp, vice president of Oxford Chase.
Camp and his associates submitted plans for a 9,000-square-foot store on property on Route 346 last fall. They received a variance for parking from the board of appeals in September and got preliminary site plan approval from the town’s planning commission in January. When they sought final site plan approval in February, however, they were greeted with a room full of local residents concerned about the impact the project would have on traffic in the already busy area near Atlantic General Hospital.
The planning commission subsequently recommended Dave Engelhart, the town’s planning director, deny site plan approval. It was that decision the company was hoping to have appealed during Wednesday’s special meeting.
Randy Coates, attorney for Oxford Chase Development, argued that the planning commission had made an error — it illegally denied the property owner access to Route 346. Though he pointed out that the planning commission hadn’t acted on the site plan as quickly as the town code required and that there were no official “findings of fact,” his primary argument was that the commission denied the property access.
“What has happened is the planning commission has determined that any access from the property to Route 346 was inappropriate,” Coates said.
That, he explained, was not the commission’s decision to make.
“The state of Maryland through the State Highway Administration has the job to determine what constitutes safe access,” he said. “The right to access is a property right that cannot be taken from the property owner without due process. It cannot be taken without compensation.”
Moore said access to the property was not denied. He said access for the proposed use — a Dollar General — was denied.
“We’re talking about this particular plan in this particular location for this particular use,” Moore said.
Coates said the planning commission wanted the property owner to work with neighboring property owners to gain access through one of their parcels.
“I don’t think the planning commission has the authority to require anybody to negotiate with their neighbors to develop mutual access,” he said.
He added that Engelhart’s written decision cited access and pedestrian safety issues but did not say that those were specific to the property’s proposed use as a Dollar General.
Moore replied that what was written had to be taken in context — the commission was only considering the site plan for a Dollar General. He also said the commission’s decision was based on evidence put forward by the public and representatives of Atlantic General Hospital, which is located across Route 346 from the site proposed for the Dollar General.
Hugh Cropper, the hospital’s attorney, took the opportunity to reiterate his client’s concerns Wednesday. He pointed out the traffic study Oxford Chase had done was in November, not during the summer when the hospital was most used, and that a more specialized study would be needed. He added that the hospital, with 800 employees and tens of thousands of emergency room visits, was a busy place.
“This is the only entrance to the emergency room at Atlantic General Hospital,” he said.
Though Moore referenced the testimony provided at the planning commission’s hearing, Coates pointed out most of it was from the hospital.
“The testimony presented at the hearing mainly came from representatives of Atlantic General Hospital,” he said, “which I would argue created the [traffic] problem in the first place.”
Camp said he did not understand how a use that met the town’s zoning requirements could not be permitted. He has been given no reason why a Dollar General was not an appropriate use for the site, he said.
“The property has been substantially devalued because a general retail store like Dollar General cannot go in there,” he said.
The board of appeals eventually voted 3-1 to again deny the zoning certificate for the property. Doug Parks was the only board member in opposition. He said the planning commission’s discussion regarding the property made it clear there were access concerns with any development — not just a Dollar General.
“They clearly denied access to the property,” he said.