Provco Wawa Appeal Continues Before Newtown Township Zoning Board

NEWTOWN TOWNSHIP, PA — The Newtown Township Zoning Hearing Board is scheduled to resume hearing Provco’s Wawa zoning appeal on Thursday, May 4.

In its latest appeal, Provco, which has been fighting to build a Wawa convenience store and gas station on the Newtown Bypass for the past five years, is challenging the the validity of sections of the township’s E30 use ordinance, including its limit on the number of gas pumps allowed, the definition of an Electronic Message Board sign and the ordinance’s restriction on signage along the Newtown Bypass.

After hearing from expert witnesses from Provco during previous meetings, on Thursday night the zoning board will hear arguments from the township against the appeal. Township solicitor Dave Sander is expected to produce one witness who will testify before the board.

Provco, which is seeking to build a Wawa convenience store and gas station on Lower Silver Lake Road and the Newtown Bypass, filed its challenge with the zoning board shortly after the board of supervisors voted against land development plans for the convenience store last fall.

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 its appearance before the zoning board in January, Provco challenged the validity of the ordinance regarding number of fuel dispensers, location of signage and the definition of an electronic message board.

Specifically, Wawa wants to have 8 fueling dispensers (16 pumps) whereas the E30 ordinance allows only 6 and it wants signage facing or visible to the Bypass, which is also prohibited by Newtown zoning codes.

During its last appearance before the zoning hearing board in April 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.

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.’”

One of the more interesting exchanges during that April 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 Tantara. “There are no graphics and it will change no more frequently than once per day. There is no appearance of animation or scrolling.”

Tantara described 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.'

Under cross examination, township attorney Dave Sander argued that what Wawa is proposing falls under the definition of an EMC and is not permitted in the jointure.

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

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

Korczak testified that from an engineering standpoint there is no reason why the seventh or eighth fuel dispenser couldn’t be provided at the site. He also testified that the plan would essentially be the same whether there were six, seven or eight dispensers.

The addition of a seventh or eight dispenser would not alter the character of the neighborhood or substantially impair the use or development of adjacent properties, Korczak testified.

Meanwhile, Provco is fighting the township in court on several other 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 had 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.