The Hechinger Co., which bills itself as the "world's most unusual lumber yard," has asked a Montgomery County court to overrule a recent decision of the county's zoning appeals board that took the the company at its word and revoked a building permit for a store on River Road in Bethesda.
Stephen Elmendorf, Hechinger's attorney, said he filed an appeal notice earlier this month in Montgomery County Circuit Court to contest a board of appeals decision that the business would violate the River Road location's zoning because Hechinger's is not a hardware store.
The board ruled, on a 3-to-2 vote Oct. 30, that because "of the variety of merchandise that Hechinger's offers" and because "Hechinger represents itself to the public as the world's most unusual lumber yard, and to its stockholders as a successful retailer in the home center industry," it is a general retail business. Consequently, the board decided that Hechinger did not meet the location's C-4 zoning, which permits only hardware stores and other local specialty shops, but not general merchandise stores.
The board's ruling was a response to a petition filed by the Kenwood Citizens Association, which is fighting to keep Hechinger's out of the neighborhood because it fears the store would worsen traffic congestion. The association charged that the county's Department of Environmental Protection made a mistake 13 months ago when it issued the company a building permit to renovate a 40,000-square-foot building that had been a bowling alley, according to Norman Knopf, the association's attorney.
"Hechinger does not advertise itself to be a hardware store. In annual reports to stockholders and in industry listings, it doesn't list itself as a hardware store. ... . And if the board of appeals doesn't believe it's a hardware store, why should anyone else?" Knopf asked. "It's a building materials store. What the board was trying to do was fit the store within a zoning category. And it found it merely fit within a retail store of a general commercial nature," he said. "Any store that sells 40,000 different items can't be a hardware store." The board noted in its opinion that the company derives only 14 percent of its earnings from hardware and tools.
The county will not appeal the board's decision, according to John Menke, director of the Department of Environmental Protection.
The ruling reverses a long-standing county interpretation of what constitutes a hardware store, even though no ordinance defines the term. Kathy Hart, an assistant county attorney, said that when the issue arose once before, in 1971 when Hechinger's was seeking a permit for its store in Glenmont on Randolph Road, the county attorney wrote an opinion that Hechinger's outlets and home centers are hardware stores.
Roger Wright, Hechinger's vice president of real estate, said the board clearly erred in its definition. "We are a hardware store. The 14 percent figure was absolutely misleading. If you pull out hardware as one item that we sell, then it's 14 percent. But if you include paint, electrical and plumbing supplies, you're talking about 80-plus percent of our merchandise," he said. Wright said "all hardware stores sell paint and electrical supplies. They also sell garden supplies. They're all expanding their merchandise."
The company's slogan -- "the world's most unusual lumber yard" -- has been used for years. "It could be taken to mean that it's a hardware store that sells lumber," Wright said. "A home center is a hardware store," he said. Elmendorf said the board applied a narrow "1940s nuts and bolts definition of what a hardware store is."
Wright said the firm had signed a long-term lease for the River Road site, but had done little to the building when the county's Department of Environmental Protection ordered it to stop work soon after the Kenwood Citizens Association filed its petition. Menke said his agency won't take steps to revoke Hechinger's permit until the company's appeal is heard.
But Menke said the department will have to review all the building permits for hardware stores in the county if the court does not overrule the Board of Appeals. "I don't know of a single hardware store that doesn't have insecticide, paint, electrical or plumbing supplies," Menke said.
Hart said the definition of several types of stores might have to be reviewed. "Once you start defining what a hardware store is, you have to start defining what a lot of other stores are. There are a lot of stores that cross over in their merchandise," she said.