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Judge sides with developer in Plumstead Wawa appeal

More than a year after the appeal began, a Chester County Court of Common Pleas judge ruled this month Plumstead’s zoning preventing a Wawa is an illegal de facto ban on gas stations.

The developer of a proposed Wawa gas station at the intersection of Route 313 (Swamp Road) and Ferry Road might be moving forward after winning an appeal started more than a year ago.

Chester County Court of Common Pleas Judge Robert Shenkin ruled Plumstead’s zoning ordinance was a de facto ban on contemporary gas stations, a decision which could allow the plan on the property to move forward.

The developer, Doylestown II-Rt 313 TVC-ARC LP, proposes a 4,700-square-foot convenience store with 10 gas pumps at the intersection in an area known as Fountainville — the borderline of Dolyestown, New Britain and Plumstead townships.

Plumstead’s zoning officer issued an initial opinion early in 2017 that the store was a “Gasoline Service Station” and not allowed at the intersection, but could go elsewhere in Plumstead.

The developer, a Verrichia Co. Partnership, appealed that opinion to the township’s zoning board soon after arguing the store was a retail location first, and a gas station second.

The township’s zoning laws allow retail sales in the neighborhood commercial zoning district the developer planned to locate, but consider gasoline sales as a primary use.

Attorneys from Eastburn and Gray argued this definition created a de facto ban on contemporary gas stations — retail convenience stores that sell fuel — but the zoning board sided with the township in September 2017.

The developer then filed the appeal with the Bucks County Court of Common Pleas two months later, dragging on for the next 13 months.

The decision was made under the jurisdiction of the Bucks County Court of Common Pleas, but was decided by a Chester County judge to avoid a potential conflict of interest. Bucks County Judge Jeffrey Trauger owned one of the two properties involved in the appeal, supervisors previously said.

Shenkin’s March 8 decision found the township “unconstitutionally excluded a legitimate land use” and adds the developer is “entitled to site-specific relief” to build the Wawa with gas pumps.

Pennsylvania zoning laws allow towns to regulate where different land uses can go, but prevent them from banning any development legally allowed in the state.

The decision by the court might also set a precedent for similar future appeals, Eastburn and Gray attorney Julie Von Spreckelsen said in a news release Friday.

“The decision marks one of the first legal instances of Pennsylvania courts recognizing that motor vehicle fuels are a product now widely sold by retail stores,” Spreckelsen said.

Unlike court decisions, local zoning boards don’t rely on precedent and have to review each application on its own. Even if Plumstead’s zoning board sided with the developer in 2017, the board could still deny a nearly identical application later for the same reasons as it did in this case.

If this month’s decision is unchallenged or survives an appeal, however, an applicant could use it to argue to any zoning board or court later.

The decision is expected to rile area residents who have shown up to various meetings over the last two years to oppose the store.

Supervisors have repeatedly told residents they were actively opposing the development since the zoning hearings that began two years ago.

Officials could not comment on if they plan to appeal to a higher court, but Supervisor Dan Hilferty said Thursday he expected the topic to be discussed at the next supervisors’ meeting.

The supervisors meet at the township building, 5186 Stump Road, at 7:30 p.m. Tuesday.

Agendas and meeting packets are typically posted online at www.plumstead.org at some point before official meetings.

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