This post was authored by Matthew Loescher, Esq.
In this case, Hatboro Borough appealed from an order of the Court of Common Pleas of Montgomery County that found the Borough’s Zoning Ordinance unconstitutionally excluded convenience stores that dispensed fuel from anywhere in the Borough. The Order further provided that Applicant Buckingham Retail Properties, LLC was entitled to site-specific relief to develop its proposed Wawa within the Borough. The Zoning Hearing Board of Hatboro Borough previously denied Applicant zoning relief, including Applicant’s substantive challenges to the Ordinance.
The court first analyzed whether it was reasonable for the Board to conclude that the proposed Wawa was a take-out restaurant – which was a question of law. Here, the court noted, if the Board’s conclusion that Wawa was a take-out restaurant was based solely on Wawa’s sale of prepared food, it would agree its classification of the proposed project as a take-out restaurant would be reasonable. However, the Board’s categorization of the Wawa as a take-out restaurant disregards the other items the proposed Wawa would sell. While the Board found there was no “relevant or substantive testimony as to what the proposed Wawa would sell as to non-food items,” the Board credited the Borough’s witness who testified as to the other types of items sold at the existing Wawa in the Borough. Specifically, the Borough’s zoning expert testified that a four-foot section of “non-packaged or prepared food” was sold at the existing Wawa in the Borough. He further testified that there was usually an additional three- or four-foot section where motor oil, antifreeze, and similar items were sold. With the sale of these other items taken into consideration, the court held that “no reasonable person would consider the proposed Wawa to be a take-out restaurant.”
The Board next argued that other sites existed within the Borough where retail items and fuel sales are permitted to be sold. For support, they cite to zoning approvals from the early 1980s. Here, however, the Ordinance at issue was not enacted until 1985 and there was no evidence as to what uses any prior ordinance permitted. Thus, these sites could be operating as preexisting conforming uses. Even if the sale of fuel was considered an accessory use under the Ordinance, Applicant still could not locate the proposed Wawa in the RC-2 District because “accessory uses as authorized by the general regulations of this chapter, including dwelling units, shall be located at or above the second-story level and shall not be more than 50% of the total lot area”. Since it was undisputed that Applicant could not sell fuel at or above the second-story level, the proposed Wawa was also excluded from the RC-2 District. Accordingly, there was no district within which Applicant could locate its proposed use. Based on the aforementioned, the court held the Ordinance did not provide for a location within the Borough for the proposed Wawa with fuel sales, and affirmed the common pleas’ Order.
Hatboro Borough v Buckingham Retail Properties, LLC, 2020 WL 8262236 (PA Cmwlth 11/9/2020)
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