Nearly three years since it began, the legal battle between a developer of a proposed Wawa gas station and Plumstead official has taken another turn -- a reversal in the township's favor.
Two of three Commonwealth Court judges on Tuesday overturned a lower court ruling that found the township's zoning laws at the intersection of state Route 313 (Swamp Road) and Ferry Road created a de facto ban on convenience stores that sell gasoline. The reversal could keep the proposed Wawa with gas pumps from the intersection, however an appeal is possible.
A Verrichia Co. partnership going by the lengthy name Doylestown II-Rt 313 TVC-ARC LP applied to build a 4,700-square-foot Wawa with 10 gas pumps at the intersection about three years ago.
The township’s zoning officer denied the application in early 2017 for a “Gasoline Service Station” in the area known as Fountainville, prompting the developer to challenge the township’s zoning ordinance.
The developer’s attorneys argued the township’s definition of a service station did not match the contemporary business model of stores like the proposed Wawa, where gas sales were not a primary function of the business.
State zoning laws allow towns to regulate where certain kinds of businesses can operate, but they can’t outright ban or create conditions that make a legal land use impossible to operate.
The developer challenged the validity of the local ordinance to the zoning hearing board, which ruled in favor of the township in September 2017, prompting an appeal to the Bucks County Court of Common Pleas.
Bucks County Judge Jeffrey Trauger owned one of the two properties involved in the development and Judge Robert Shenkin in Chester County heard the case to avoid a conflict of interest.
Shenkin’s March 2019 decision found the township “unconstitutionally excluded a legitimate land use” and adds the developer is “entitled to site-specific relief” to build the Wawa with gas pumps.
The majority opinion issued by the Commonwealth Court this week found while the township’s zoning laws might exclude the more profitable location for the store, it didn’t outright ban the business in the township.
The township’s zoning ordinance also included a size restriction of 2,000-square-feet for retail stores in that area, another limitation the developer was challenging.
An expert witness in 2017 testified the size limitation did not prevent a retail stores like Wawa from being profitable.
While that testimony did influence the court ruling, the judges acknowledge other evidence that excluded testimony to the zoning board may have meant a different outcome.
“It is true that (the developer) presented testimony to the contrary, but the (zoning board) expressly declined to credit that testimony. Had the zoning board made a different credibility determinations, we might have reached a different outcome,” the opinion states.
In her dissenting opinion, President Judge Mary Hannah Leavitt affirmed the lower court ruling, echoing the developer’s argument that the zoning laws are outdated where gas sales are concerned.
A Wawa without gas pumps is a “convenience store” that could have a 10,000-square-foot building, but a Wawa with gas becomes a “Motor Vehicle Gasoline Station” limited to 2,000-square-feet, according to Leavitt.
“There is no question that this use is a legitimate business, and there is no question that it is not permitted anywhere in the township,” Leavitt wrote.
Challenges to Commonwealth Court opinions generally have a 30-day window for parties to petition the Pennsylvania Supreme Court and challenge the ruling.