Posted by: Patricia Salkin | November 20, 2019

PA Appeals Court Upholds Denial of Application for Convenience Store with Attached Gasoline Station

This post was authored by Laura Rameshwar, Touro Law Center

Petitioners, Provco Pinegood Sumneytown, LLC, appealed a decision of the trial court which affirmed a decision by the Upper Gwynedd Township Board of Commissioners denying Petitioners’ second application for construction of a convenience store with an attached gasoline service station.

Petitioners owned two continuous lots in a C-commercial district and sought to build a 5,585-square-foot Wawa store and fueling station. The convenience store is a retail use permitted as of right. In 2016, the Zoning Hearing Board determined the proposed gasoline sales use was an accessory use to an as of right to a convenience store retail use.  However, upon appeal the Trial Court reversed the Board of Appeal decision and remanded the matter back to the Zoning Hearing Board to determine whether the Petitioner was entitled to a special exception for its proposed fueling station use.

Petitioner then appealed to the Commonwealth Court which quashed the appeal as from an interlocutory order. While litigation continued in the Commonwealth Court, in January 2017 Petitioner submitted a preliminary land development application to the Town Planning Commission. Two neighboring property owners were allowed by the Commission to intervene in and offer their opposition to the proposed plan.  In the end. the Planning Commission rejected the application based on traffic impact design flaws and stormwater management deficiencies.

Although Plaintiffs resubmitted altered application later in 2017 the plans were significantly similar to the original and a second denial was issued. This first letter rendered a conditional approval of the plan issued by a plan zoning officer. The officer while still minting the need for a special exception for gasoline sales, offered that the plan could be approved if  Petitioners agreed to create an exit on the western driveway on Sumneytown Pike  with a larger “pork chop” traffic barrier to deter drivers from making prohibited left turns onto Sumneytown Pike. And Secondly, drivers must be prohibited from making left turns onto West Point Pike during peak hours.

After the conditional approval neighboring property owners again opposed the plan, and brought to attention the unresolved storm water deficiencies. In November 2017, after the conditional approval Commissioners denied the application at a public meeting and issued two additional written  letters categorizing their decision and listing 31 reasons for denial including failing to obtain the special exception for the fueling station, and stormwater management deficiencies, traffic design and road access deficiencies. Section 508(2), of the Municipalities Planning Code provides that  when a governing body denies an application for plan approval, “it shall specify the defects in the plan application, describe the requirements that were not met, and in each case, cite the provisions of the ordinance or statute relied upon.”

Petitioner’s then appealed to the trial court which affirmed the Planning Commissioners decision based on the failure to obtain the special exception for the intended fueling station use. Petitioner appealed arguing that the zoning officer’s conclusion that Petitioner required a special use exception was not a determination appealable to the zoning hearing board. The petitioner argued that the Municipalities Planning Code defines appeal issues “as a final action by an officer charged with the administration of any land use ordinance or application” and that the Zoning officers report was not a “final determination”.  Here the court reasoned that while it agreed that  officer’s letters appeared to be “reports” rather than final “determinations,” but much of that dispute was rendered moot by the subsequent trial court decision regarding the special exception and granting developer an evidentiary hearing on the issue.

Secondly, the Petitioners argued that the Commissioners erred in denying the application based on Pennsylvania Department of Transportation (PennDOT) traffic policies, standards and specifications for safe road access which Petitioner contends are not contained in any township ordinance. However, the Court found that the Commissioners properly interpreted provisions of the Subdivision and Land Development Ordinance (SALDO) requiring developer to comply with PennDOT traffic standards for access to Sumneytown Pike regardless of it not being a state highway.

One paragraph of the Commissioners’ decision applied PennDOT regulations governing safe stopping sight distances for access driveways and found that Petitioners application failed to provide safe egress onto the Sumneytown Pike, which had been outlined in the officer’s fort letter to the Petitioner. That determination was supported by the record and is sufficient to support the denial of the application.

Petitioners’ final argument that commissioners violated its due process rights by refusing to allow it to cross examine witnesses at the public meeting is meritless as the Petitioner did not request a public hearing, and there was no sworn testimony as the public meeting was not a hearing, but rather a standard meeting. In sum the court held that the Commissioners properly denied the Petitioners land development application.

In re Provco Pinegood Sumneytown, LLC, 216 A.3d 512, 514 (Pa. Commw. Ct. 2019), reargument denied (9/23/2019)


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