Traffic, Signage Experts Testify At Wawa Zoning Appeal In Newtown

NEWTOWN TOWNSHIP, PA — The battle to bring a Wawa to the township is back before the zoning hearing board where Provco Pinegood LLC is challenging the validity of sections of the township’s E30 use ordinance.

In its latest appeal, Provco, which has been fighting to build a Wawa convenience store and gas station on Lower Silver Lake Road and the Newtown Bypass for the past five years, is challenging the ordinance’s limit on the number of gas pumps allowed, the definition of an Electronic Message Center (EMC) sign and the ordinance’s restriction on signage along the Newtown Bypass.

During its second appearance before the zoning hearing board on Monday night, Matthew Hammond, a licensed civil engineer specializing in traffic planning, and Michael Tantala, a civil engineer, specializing in signage, testified on behalf of Provco.

Hammond testified that if Provco is not allowed to put a monument sign on the bypass alerting motorists of the store and gas station, it could create a dangerous condition on the bypass with motorists making split second decisions to make the turn onto Silver Lake Road after realizing there’s a Wawa there.

Under the E30 ordinance, signs are prohibited along the limited access Newtown Bypass.

Hammond testified that visible signage is important, especially for impulse customers who need enough advance warning to move to the proper turning lane.

“These signs are designed with the appropriate size, height and location necessary to provide a safe and efficient flow of traffic along these roads,” Hammond told the zoning board.

Regarding the use of signs for safety, zoning board chair Paul Cohen wanted to know if that only applied for certain uses. “Do you believe going from an office use to a retail use increases the need for signage?”

“I do,” said Hammond. “Retail use is what I’ll classify as an impulse use. Obviously there are people who want to traverse to that specific use. That signage is important. If it was an office it may not be as important because you’re not normally passing by an office building and saying, ‘Oh, I should probably try to turn in there.’”

A rendering of the proposed Newtown Township Wawa. (Provco)

One of the more interesting exchanges of the evening was over the definition of an electronic messaging center, or EMC, and whether what Wawa is proposing is or isn’t an EMC, which is not permitted in the joint zoning district.

“What’s proposed here today with the Wawa sign, there are no animated images, no moving video images, no electronic images,” said Tantala. “There are no graphics and it will change no more frequently than once per day. There is no appearance of animation or scrolling.”

Tantala describes it as a “free standing sign that is internally illuminated from within. “The light goes through transmission panels. There are plastic numbers that the light goes through to covey the price point to drivers on the road. The rest of the sign is internally illuminated but there is no changeable message part to that sign.”

The proposed sign is not an EMC because it is not animated, he argued. “There is no appearance to the driver of motion, of blinking or of movement. The sign as proposed is going to be a static display with no animation, no movement, no electronic images.”

Tantala called the zoning definition of an EMC “ambiguous,” saying that the definition could be applicable to all kinds of signs.'

The zoning board opened its latest appeal in January, hearing from witnesses regarding signage and number of fueling positions.

Among the expects testifying on behalf of Provco were Jason Korczak, P.E., Bohler Engineering and Mike Redel, a Real Estate Project Engineer employed by Wawa.

At the next hearing, which will be held in April, Provco is expected to call one more witness. Then it will be the township's turn to present its case. Solicitor Dave Sander said he expects to call one witness to testify.

Meanwhile, Provco is fighting the township in court on several fronts, including an appeal of the board’s vote against approving land development plans for the project and a substantive validity challenge of the township’s E30 zoning ordinance.

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.

Also in November the supervisors voted to retain David Babbitt & Associates to assist the township in its defense of the validity 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 court 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 last fall.

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.