Wawa Saga Continues In Newtown As Provco Prepares Validity Challenge

NEWTOWN TOWNSHIP, PA — Two weeks after its land development plan for a Wawa convenience store was denied by the board of supervisors, Provco is preparing a substantive validity challenge of the township’s zoning ordinance.

The announcement was made by Newtown Township solicitor Dave Sander at the Nov. 22 board of supervisors meeting.

“Since the plan denial the applicant has asked that this be moved forward to a zoning hearing board hearing. A schedule is not yet known,” said Sander of the validity challenge.

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 Sander.

Provco will be asking the zoning hearing board to declare that prior to its development 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, Provco’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, township solicitor Dave Sander warned the supervisors that if they didn’t enact the ordinance, Provco could move forward with its validity challenge.

Supervisor Kyle Davis, in voting against the ordinance, argued that the ordinance gives developers exactly what they’re looking for. “The OR is mostly on the bypass. I think we’re giving too many pumps and too much acreage. And I think we should have considered moving it to light industrial or office light industrial. Make it unattractive and put it somewhere else and not on the bypass. Putting it along the bypass just makes it more attractive to everyone.”

The problem with changing the zoning district, cautioned township lawyer Jerry Schenkman at the time, is it doesn’t address the validity challenge filed by Provco to build at the Newtown Bypass site.

“If we ignore that zone they’ll pursue their challenge and likely be able to build there anyway,” he said. “This is a way to keep it as restrictive as possible and limiting it to that lot and maybe one or two others. If you remove that, they’re going to get to build anyway.”

The supervisors, however, in a 3 to 2 vote earlier this month, denied land development plans for the Wawa giving the developer two avenues of recourse - to appeal the decision or to pursue its original validity challenge.

If Provco prevails in its validity challenge, it won’t have to meet the requirements of the curative amendment, which was adopted after Provco filed its challenge.

A hearing before the zoning board has not been scheduled, according to Sander.