Looking Ahead In 2023: Newtown Wawa Plans Headed To Court

NEWTOWN TOWNSHIP, PA - The courts cold decide in 2023 the fate of a proposed Wawa convenience store and gas station in Newtown Township.

The year is expected to begin with Provco battling the township on two fronts - an appeal of the township’s denial of its land development plan at the court level and a separate validity challenge of the township’s ordinance at the zoning hearing board level.

In early December, the board of supervisors voted 3 to 2 to authorize its solicitor to defend the township’s decision to deny Provco’s preliminary/final land development plan.

In November the supervisors voted to deny the plan citing its failure to obtain approval for a larger canopy over the gas pumps, for submitting its plan as a preliminary/final plan rather than just a preliminary plan and for providing an eight foot setback from the road where a 20 foot setback is required.

Voting in favor of the motion to fight Provco in court were Kyle Davis, Elen Snyder and John Mack. Supervisors Phil Calabro and Chairman Dennis Fisher voted against the motion.

Provco also is moving forward with a validity challenge of the township’s ordinance. That appeal is scheduled to be heard by the township’ zoning hearing board as early as this month.

In preparation for the challenge, the supervisors on Nov. 22 voted to retain David Babbitt & Associates to assist the township in its defense of the challenge. Babbitt had assisted the township in fighting zoning variances for the pumps and signage and is familiar with the proposed development, said township solicitor David Sander.

Provco will be asking the zoning hearing board to declare that prior to the passage of the E30 curative amendment, the township’s zoning ordinance was unconstitutional because it did not provide for a combination convenience store and gas station use.

“If they are successful at the zoning hearing board or ultimately on appeal through the court system they will have the ability to develop their property as they wish with a convenience store and gas station without having to comply with the E30 use ordinance,” Sander told the supervisors.

Shortly after submitting plans to the township in 2019 to build a Wawa and gas station in the township’s office-research zone at Lower Silver Lake Road, Provco challenged the validity of the Newtown Township Joint Zoning ordinance for not providing for a combination fueling station and convenience store use in the jointure.

The challenge prompted Newtown Township, working in conjunction with Wrightstown and Upper Makefield - the three municipalities that make up the Newtown Area Zoning Jointure - to develop a curative amendment to remedy the oversight.

The sale
of gasoline as an accessory use to a retail operation had not been permitted in the office-research zone, or for that matter anywhere in the Joint Municipal Zoning Ordinance (JMZO) making the ordinance challengeable, Proco’s land use attorney told planners in 2019. The company followed through, filing a challenge with the Newtown Township Zoning Hearing Board over the exclusion.

Provco put the challenge on hold while the township developed a curative amendment. The supervisors subsequently approved the ordinance in September 2021 and Provco moved forward with the submission of land development plans to the township under the regulations established by the E30 ordinance.

The E30 ordinance limits the use by special exception to a minimum four acre lot in the office research zone in Newtown Township and places limitations on the square footage of any proposed store, limits the number of fueling dispensers up to a maximum of eight based on acreage of the site without a variance, imposes restrictions on signage and lighting and sets parameters for parking, buffering, etc.

At the time of the vote, Sander warned the supervisors that if they didn’t enact the ordinance, Provco could move forward with its validity challenge.

Meanwhile the township is already in court with Provco over a zoning board decision to deny variances for the number of gas pumps and for signage.