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Office of Zoning and Administrative Hearings for Montgomery

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Office of Zoning and Administrative Hearings for Montgomery OFFICE OF ZONING AND ADMINISTRATIVE HEARINGS FOR MONTGOMERY COUNTY -----------------------------------x : : PETITION OF COSTCO WHOLESALE : Case No. S-2863 CORPORATION : OZAH No. 13-12 : -----------------------------------x A hearing in the above-entitled matter was held on March 11, 2014, commencing at 9:41 a.m., at the Office of Zoning and Administrative Hearings, 100 Maryland Avenue, 2nd Floor Council Hearing Room, Rockville, Maryland 20850 before: Martin L. Grossman Hearing Examiner Page 2 Page 4 A P P E A R A N C E S 1 P R O C E E D I N G S 2 MR. GROSSMAN: This is the 28th day of the public For the Applicant: 3 hearing in the matter of Costco Wholesale Corporation, Board Patricia Harris, Esq. 4 of Appeals No. S-2863, OZAH No. 13-12, a petition for a Mike Goecke, Esq. 5 special exception pursuant to Zoning Ordinance Section Lerch, Early & Brewer, Chartered 6 59-G-2.06 to allow petitioner to construct and operate an 7 automobile filling station which would include 16 pumps. 3 Bethesda Metro Center, Suite 460 8 The subject site is located at 11160 Veirs Mill Road in Bethesda, Maryland 20814 9 Silver Spring, Maryland. That's Lot N, 631 Wheaton Plaza, 10 Parcel 10, also known as Westfield Wheaton Mall, and is For Kensington Heights Civic Association: 11 zoned C-2, general commercial. Michele Rosenfeld, Esq. 12 The hearing was begun on April 26, 2013, and The Law Office of Michele Rosenfeld, LLC 13 resumed many times thereafter, the last date being February 11913 Ambleside Drive 14 25. The hearing scheduled for March 3 was canceled in 15 response to the alternate relief sought in Kensington Potomac, Maryland 20854 16 Heights Civic Association's motion to strike the Sullivan 17 rebuttal report and then weather closed the government, in 18 any event, on that date. The hearing was noticed to resume C O N T E N T S 19 today. The next session will be on April 1, 2014, here in Rebuttal 20 the second floor hearing room of the Council Office Building Witnesses: Direct Cross Redirect Recross 21 at 9:30 a.m. Wes Guckert By Ms. Harris 32 22 This hearing is conducted on behalf of the Board By Ms. Rosenfeld 144 23 of Appeals. My name is Martin Grossman. I'm the Hearing By Ms. Cordry 166 24 Examiner, which means I will take evidence and write a 25 report and recommendation to the Board of Appeals which will Page 3 Page 5 E X H I B I T S 1 make the decision in this case. 2 All right. Will the parties identify themselves Exhibit No. Marked/Received 3 for the record, please? 479(b) Three high-resolution disks of 104 4 MR. BRANN: Erich Brann here for Costco. Exhibit 479(a) 5 MR. GROSSMAN: Okay. 6 MS. HARRIS: Good morning. Pat Harris on behalf 480 Background and data supporting 47 7 of Costco. Wes Guckert's Exhibit 465 8 MR. GOECKE: Good morning. Mike Goecke for 9 Costco. 481 Special exception area map 83 10 showing yellow highlighted MR. GROSSMAN: Mr. Goecke. access to the ring road 11 MS. CORDRY: Karen Cordry from Kensington Heights. 12 MS. ROSENFELD: Michele Rosenfeld for Kensington 482 Combination of Exhibits 456(e) 107 13 Heights. and 481 14 MR. GROSSMAN: Ladies. 15 MS. ADELMAN: Good morning, Mr. Grossman. Abigail 483 Karen Cordry's documents for 165 16 Adelman for the Coalition. cross-examination of Wes Guckert 17 MR. GROSSMAN: Mrs. Adelman. 483(a) Disk containing Karen Cordry's 165 18 MR. ADELMAN: Good morning, Mr. Grossman. documents for cross-examination 19 Dr. Mark Adelman for the Coalition. of Wes Guckert 20 MR. GROSSMAN: Dr. Adelman. 21 MR. SILVERMAN: Larry Silverman for the Coalition. 484 Pages from David Sullivan's 183 22 Good morning, sir. August 2013 report 23 MS. DUCKETT: Eleanor Duckett, Kensington View 24 Civic Association. 25 MR. GROSSMAN: All right. Min-U-Script® Deposition Services, Inc. (1) Pages 2 - 5 Page 6 Page 8 1 MS. DIDONE: Sylvia Didone, Kensington View. 1 potentially, depending on the timing, we potentially will 2 MR. GROSSMAN: All right. 2 discuss them at the April 1, 2014, hearing. So I would like 3 MS. SAVAGE: Donna Savage, Kensington Heights. 3 those objections and the agreed-upon and unagreed-upon 4 MR. GROSSMAN: Okay. And I think that exhausts 4 conditions to be filed by March 17. 5 the audience today. So let's turn to some preliminary 5 MS. ROSENFELD: And, Mr. Grossman, would you 6 matters. Since our last session, there have been some 6 anticipate taking that up as a preliminary matter or, if 7 filings: Exhibits 470 -- thank you, Sarah -- Exhibit 470 7 time allows, after the witnesses? 8 through, it goes beyond what I had listed because I had to 8 MR. GROSSMAN: If time allows, afterwards. 9 leave earlier yesterday, through 479. 470 is an e-mail from 9 MS. ROSENFELD: Thank you. 10 Ms. Rosenfeld, February 27, submitting Kensington Heights' 10 MR. GROSSMAN: I'd ask the parties to discuss 11 corrected motion to strike the Sullivan rebuttal testimony, 11 another date since we likely will need one, although I have 12 both in a redline version, that's sub (a), and in the clean 12 been importuned by people who were involved in the Suburban 13 version, sub (b). 471 was the e-mail from Mr. Goecke, 13 Hospital case, begging me not to allow this to break their 14 submitting Costco's response to that motion to strike, and 14 record, as it has only stood for a couple of years. So 15 sub (a) was the response itself; 472, an e-mail from me to 15 passing that on, we don't want to, we don't want to break 16 the parties regarding the motion to strike and the response 16 their record. 17 and also canceling the hearing scheduled for March 3. 473 17 MS. ADELMAN: Why? Why not? 18 was a memo from Mr. Goecke, submitting a disk with data used 18 MS. ROSENFELD: And what is that record? 19 by Sullivan Environmental in preparing its rebuttal report, 19 MS. ADELMAN: Why not? 20 and 473(a) was the disk. 474 was an order denying the 20 MR. ADELMAN: At least do we get a prize? 21 motion of Kensington Heights Civic Association to strike the 21 MR. GROSSMAN: Their record is 34 hearing days, 22 Sullivan rebuttal report and granting the motions request to 22 and they really feel strongly that they should be allowed to 23 postpone the Sullivan rebuttal testimony for at least 10 23 keep it for a little bit longer, and I personally don't want 24 days and to allow surrebuttal. 475 was an e-mail, dated 24 to break any records. I'm more than happy to have this 25 March 5, 2014, from Ms. Duckett, submitting conditions 25 terminate when it -- in its natural course of events and the Page 7 Page 9 1 requested if approval is granted, and sub (a) are the 1 evidence is exhausted, including the parties and the Hearing 2 conditions requested by Kensington View Civic Association; 2 Examiner. 3 476, e-mails, dated March 6 and March 7, between the parties 3 MR. ADELMAN: And that deadline for the conditions 4 regarding scheduling and witnesses on March 11; 477, an 4 was the 17th, sir? 5 e-mail from Ms. Cordry on March 7 with a link to Dropbox 5 MR. GROSSMAN: Yes. 6 documents that may be used to cross-examine Mr. Guckert; and 6 MR. ADELMAN: Thank you. 7 478, e-mails between the parties regarding the video 7 MS. DUCKETT: Mr. Grossman, I have a question. 8 evidence; and 479, a memo from Ms. Harris, submitting the 8 MR. GROSSMAN: Yes, Ms. Duckett. 9 disk with the Valley View traffic observations of 9 MS. DUCKETT: On the conditions that we submitted, 10 Mr. Guckert, and (a), sub (a) is the disk itself. 10 will that be included in whatever they're discussing back 11 All right. Let's turn to other preliminary 11 and forth? 12 matters. The witness scheduled for today is Mr. Guckert. 12 MR. GROSSMAN: When you say included, yes, that'll 13 Originally there was discussion of having Mr. Sullivan but 13 be open -- 14 that's been postponed at the request of the applicant. And 14 MS. DUCKETT: Okay. 15 the witness scheduled for April 1 will be the rebuttal from 15 MR. GROSSMAN: -- we can discuss them all at 16 Mr. Sullivan, both direct and cross-examination, and any 16 whatever session it is that we discuss them. If there's 17 surrebuttal to be called by the opposition. There also may 17 time left over on April 1, we'll do it, or at the next 18 be cross-examination of Mr. Guckert regarding the Valley 18 session -- 19 View movie observations. 19 MS. DUCKETT: Okay. 20 All right. Then party submissions of agreed-upon 20 MR. GROSSMAN: -- we'll discuss all the conditions 21 and unagreed conditions and objections, I've allowed that to 21 that have been proposed. 22 be postponed due to the delays, weather and otherwise, and 22 MS. DUCKETT: Okay. 23 -- but what I'd like, to have them filed by March 17 since 23 MR. GROSSMAN: And there may be some that are not 24 I'm going to be leaving town. I'd like a few days to review 24 susceptible to being conditions in a special exception, and 25 them, and then we'll discuss them at the April 1, 25 we'll talk about that as well.
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