Wawa Validity Challenge Continues Before Newtown Township Zoning Board

NEWTOWN TOWNSHIP, PA —The Newtown Township Zoning Hearing Board will meet in special session Monday evening as it continues hearing a validity challenge filed by Provco in its ongoing quest to build a Wawa convenience store and gas station in the township.

Provco, which is seeking to build a Wawa convenience store and gas station on Lower Silver Lake Road and the Newtown Bypass, is challenging the substantive validity of the township’s E30 zoning 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 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, Provco wants eight fueling dispensers (16 pumps) whereas the E30 ordinance allows only six and it wants signage facing or visible to the Bypass, which is also prohibited by Newtown zoning codes.

“This is a matter of challenging the ordinance so we are dealing with questions of law here. Signage is the subject of two of the challenges, but the legal standard is the same. We’re alleging that these ordinance provisions are arbitrary, unreasonable, discriminatory and void,” said
Provco attorney John Van Luvanee.

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.

“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 E30 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.

This past fall, the supervisors voted 3 to 2 to deny Provco's preliminary as final land development plans for the site. The denial prompted a flurry of legal actions by Provco, including putting the validity challenge back on the table.

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. Provco is also taking the township to court over its denial of preliminary as final plans for the convenience store.