Plumstead Township Zoning Ordinance Not Exclusionary
The Commonwealth Court on October 20, 2020, upheld the Plumstead Township Zoning Hearing Board’s Decision that the Township’s Zoning Ordinance was not exclusionary because it would not permit Wawa’s proposed convenience store with fueling pumps at the intersection of Swamp and Ferry Roads in the Township. In re: Doylestown II – RT 313 TVC – ARC, L.P. of the Decision of the Plumstead Zoning Hearing Board dated October 27, 2017 (455 C.D. 2019) (Unpublished Opinion).
Wawa proposed to develop a 4,736 square foot convenience store with 10 fueling stations and 58 parking spaces. The Zoning Ordinance indicates that a Retail Store that provides for gasoline or fuel sales is a G22 Automobile Gasoline Station Use. In addition, a Convenience Store that provides for the sale of gasoline or fuel is only permitted in the zoning districts that permit a G22 Motor Vehicle Gasoline Station. The G22 Use indicates that the sale of gasoline or fuel is the principal function of the use and the convenience commercial component is limited to 2,000 square feet. Wawa challenged the Ordinance as de facto exclusionary.
Before the Zoning Hearing Board, competing expert testimony was presented. Wawa presented testimony from Charles Schmehl who is a zoning and land planning researcher and vice president of Urban Research & Development Corp. Mr. Schmehl opined that although 80% of nationwide gas sales are at convenience stores, the retail goods actually outsell gas at convenience stores. Mr. Schmehl also opined that the 2,000 square foot restriction was outdated and arbitrary and that most convenience stores range in size from 4,000 to 8,000 square feet.
The Township presented the testimony of Roshanee Bindra who owns five independent convenience stores and provides consulting services to similar convenience store retailers to turn around and grow their business. Ms. Bindra testified that based on her experience and that of her clients, retail stores of up to 2,000 square feet with gasoline sales are economically viable and profitable. The Zoning Hearing Board found Ms. Bindra’s testimony credible and found that the ordinance was not de facto exclusionary. On appeal, the Bucks County Court of Common Pleas reversed the Zoning Hearing Board and sustained the validity challenge and found that Wawa was entitled to site specific relief.
The Commonwealth Court noted that in analyzing a de facto exclusion claim, the Court focuses on whether the ordinance practically prevents the proposed use in the municipality. “If an ordinance, through its particular requirements, makes the development of a use permitted by the ordinance economically impossible, the ordinance is unconstitutional, because the municipality has essentially precluded a legitimate use by an indirect means.” (citation omitted). The Court has previously said that the question is not whether one use is more profitable but whether the proposed use is so unprofitable that it is effectively excluded. The Court then held that although there was conflicting testimony, the Zoning Hearing Board’s decision was supported by substantial evidence and therefore the Board did not abuse its discretion.
This case was a 2-1 panel decision with President Judge Leavitt filing a Dissenting Opinion in which she opined that the problem with the ordinance is the requirement that a G22 use involve primarily the sale of gasoline. This requirement means that a convenience store in which the sale of gasoline is accessory to the retail component is not provided for anywhere in the Township.
The interesting issue not addressed by the Court was the Township’s alternative argument that the ordinance was not exclusionary because it contains a “catch all” provision. Specifically, the ordinance says that “Any lawful use that is required to be permitted by the [MPC] and is not otherwise permitted in other use categories of this Chapter may be permitted as a conditional use…” A number of municipalities have a similar provision in their zoning ordinance and the issue of whether this provision will defeat a claim of exclusionary zoning will have to wait for another case.
We will continue to monitor this case to see if there is an appeal to the Pennsylvania Supreme Court. Once the appeal period expires, we will be able to advise our municipal clients regarding any potential zoning amendments that should be considered.
This article is not legal advice and is provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction.
