In 2009, Costco contacted the local zoning official with a proposal to construct an outdoor gas station next to an existing retail store. Costco believed this use was permitted in the Expressway Corridor Preservation Overlay District (hereinafter “Overlay District”) as an accessory use. The zoning officer disagreed and Costco appealed to the Montgomery County Zoning Hearing Board (hereinafter “ZHB”), seeking a reversal, or in the alternative, the requisite variances. This opinion of the Commonwealth Court only concerns the zoning officer’s determination.
After conducting a hearing, the ZHB denied the appeal based on their interpretation that the Zoning Ordinance did not permit gas stations in the Overlay District. The ZHB explained that in making a determination as to whether a land use is permitted as an accessory use, they must consider whether “the use complies ‘with the standards applicable to the permitted use to which they are accessory.’” The ZHB found the standard applicable to retail sales is that the sales be conducted indoors. Since the gas would be sold outdoors, the ZHB found this sale noncompliant with the standard, and, thus, was not permitted as an accessory use. In support of its determination, the ZHB relied on another section of the Zoning Ordinance that permits auto repair facilities in the Overlay District as a special exception, but specifically excludes gas filing stations.
Costco then appealed to the trial court, which affirmed. The trial court agreed with the ZHB that the applicable standard for an accessory use permit in this district would exclude outdoor sales. The trial court found meritless Costco’s assertion that outdoor gas services should be permitted as analogous to drive-through services provided by restaurants. The trial court disagreed with Costco because with drive-throughs, the store employee and products are indoors and the patron does not exit their vehicle. In contrast, with a gas station, the gas is located outside of the establishment, the patron must exit their vehicle, and the gas station attendant is outside. Additionally, the trial court agreed with Costco that the ZHB should not have relied on the special exception section of the Zoning Ordinance, but found this error was harmless.
In Costco’s appeal to the Commonwealth Court, Costco sought review concerning whether the proposed use should be permitted as an accessory use, and if the ZHB abused its discretion or violated the law in considering the special exception section of the Zoning Ordinance.
In its determination of whether the use was permitted as an accessory use, the court found critical the language that permitted “standard retail uses” as-of-right. This section permits indoor sales, and includes an extensive list of permitted uses, including obscure uses such as clock repair, but omitted the sale of gas. The court found this exclusion noteworthy. In addition, the court found instructive the express prohibition of some sales that can be conducted both in and outdoors, including the sale of automobiles. The court found the omission of gas sales in the definition of permitted uses intentional. Further, the court did not agree with Costco’s assertion that gas sales should be permitted on this basis that the Zoning Ordinance permits some sales in the Overlay District that have an outdoor component, such as restaurants with drive-through window or the sale of flowers and gardening equipment.
Next, Costco asserted that outdoor gas sales should be permitted on the basis that a section of the Zoning Ordinance permits outdoor dining as an accessory use by special exception in certain zone districts, including the Overlay District. The court found this argument unavailing, relying on the cannon of construction expressio unius est exclusio alterius, which means “the expression of one thing implies the exclusion of another thing not mentioned.”
In affirming the prior determination and the permit denial, the court provided that the sale of gas is undeniably an outdoor retail use excluded in the Overlay District, and, thus, is not permitted as an accessory use.
In addressing Costco’s second claim, the court stated the ZHB had the authority to affirm a prior determination on alternative grounds. When the ZHB considered the special exception language, they affirmed on alternative grounds as permitted, and thus committed no error. In any event, the court found the ZHB’s consideration ineffectual, as the language of the code requiring indoor sales was sufficient to base the denial.
In re: Appeal of Costco Wholesale Corp., 49 A.3d 535 (Com. Ct. Pa., July 31, 2012).
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