NEWTOWN TOWNSHIP >> The Newtown Township Board of Supervisors on August 5 voted unanimously to advertise a municipal curative amendment that would add a combination gas station and convenience store as a special exception in its office/research zoning district.
The supervisors also agreed to forward the E30 ordinance to the Bucks County Planning Commission for a 30 day review period. They also tentatively scheduled possible adoption by the board at a hearing in October.
“This is not the final action. We’re not approving anything tonight except for advertising and sending it to the Bucks County Planning Commission,” said Chairman Phil Calabro.
“This is pretty close to the final document,” added township solicitor David Sander. “However, the board is not taking any action today to enact the ordinance. The ordinance is still open for questions and comments and potentially revisions if any of the three municipalities feel that’s what they want to do.”
Newtown Township, working in conjunction with Wrightstown and Upper Makefield - the three municipalities, which make up the Newtown Area Zoning Jointure - began working on the amendment to its Joint Municipal Zoning Ordinance (JMZO) after the exclusion was legally challenged by Provco, which is seeking to build a Super Wawa at Lower Silver Lake Road and the Newtown Bypass across from Crossing Community Church.
The sale of gasoline as an accessory use to a retail operation is currently not 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 suit against the jointure over the exclusion and submitted its own draft ordinance for consideration.
The draft ordinance developed by the township would limit the use by special exception to the office research zone in Newtown Township and would place limitations on the square footage of any proposed convenience store, limit the number of fueling dispensers up to a maximum of eight based on acreage of the site, impose restrictions on signage and lighting and set parameters for parking, buffering, etc.
The Newtown Township Planning Commission, which was scheduled to review the final draft this week, has been crafting the zoning amendment for the better part of a year.
“Our goal was to come up with our own plan. We wanted to design one that we thought was right for the township irrespective of what Provco was proposing,” added planner Joel Raab.
Planner Kierstyn Zolfo agreed. “When they submitted their dream version of this ordinance, they wanted a pony and they wanted rainbows and they wanted spot zoning,” she said. “I can tell you what we ended up recommending to the supervisors is what we thought was best for the township and is not bending over backward for Provco.”
Among the biggest changes from what Provco originally proposed is that it won’t be a use by right, said planner Mary Donaldson. “It’s a use by special exception. You can’t just do it. You have to go through the zoning hearing board and through us and the board of supervisors. It adds that extra layer of review.”
The proposed ordinance has gone through numerous reviews and revisions by planners and elected supervisors in all three municipalities, according to Sander. “Upper Makefield and Wrightstown have both recommended it to the Bucks County Planning Commission and have advertised it for enactment sometime this fall,” he said.
All three municipalities will be required to hold separate public hearings this fall before taking a final vote on the amendment. Those votes are expected to happen in October.
“Sometime, probably in October, it will be advertised for this board to hold a public hearing at which time the public
will have input, questions, concerns, comments and the board will have a chance to discuss the ordinance and potentially enact the ordinance,” said Sander.
What the supervisors did not do is forward a copy of the draft ordinance to Provco for its review and comments, which Sander had strongly recommended.
Sander had cautioned the board in July that they’d be taking a chance by not including Provco in the finalization of the curative amendment.
He said if Provco is left out of the amendment process, it could decide instead to pursue its substantive validity challenge to the ordinance. And if it wins that challenge, Sander said Provco would not be required to follow the regulations set forth in the curative amendment.
Sander recommended continuing the discussion with Provco “to see what, if any, revisions we may want to make to the ordinance, to settle their substantive validity challenge.”
Provco put its challenge on hold while the municipalities developed the curative amendment.
“We are hoping the proposed new ordinance could be settled without having to go to the zoning hearing board and taking our chances of getting the Wawa that they want to see on that property versus what we would rather see,” said Sander.
At a meeting in July, Board Chairman Phil Calabro disagreed with submitting the draft ordinance to Provco.
“This is called a gas station/convenience store ordinance, not a Provco ordinance. I don’t know why we have to bend knee to Provco,” said Calabro. “This doesn’t have to be for Provco. If Provco were to pull out tomorrow, some other company could come in. Do we have to get their approval, too?” he asked.
“We are the ones approving it and they are the ones who have to abide by it. I understand the legal situation that we’re in, but they don’t run the township - we do,” said Calabro. “And I don’t know why Provco has to have a say before we have a say.”
Sander agreed that the township doesn’t have to engage Provco at all in the finalization of the amendment.
“But Provco filed its substantive validity challenge prior to the declaration of a municipal curative amendment, which means if Provco wins its case before the zoning hearing board it will be entitled to develop its convenience store/gas station based on its plans, its number of pumps, its square footage, its number of parking spaces, its signage, its lighting, its buffering,” warned Sander.
“The reason why we reached out to Provco in the first place is to try to bring Provco under the new, yet unenacted ordinance, drop their validity challenge, but still, for their purposes, do generally what they want to do out there (on the bypass),” he said. “We can stop right now with Provco. We can enact our ordinance and then I predict Provco will pursue a substantive validity challenge and that’s going to be in the hands of the zoning hearing board. And based on current law regarding similar uses in Plumstead Township and Hatboro the court decisions are not favorable to us.”
Sander explained that the jointure’s ordinance does not provide a combination convenience store/gas station use “that two Courts of Common Pleas have said is a required use to be provided for and that ordinances that don’t have that are unconstitutionally exclusionary,” continued Sander. “The bottom line is that Provco filed its challenge before the municipal cure and therefore that’s out there, that is pending. They have put it on hold in hopes that we could negotiate ordinance provisions that will allow them to be able to do what they want to do without much variance requirements needed or additional relief.
“Again, if a majority is of the opinion we should move forward and send it to the Bucks County Planning Commission and then schedule a public hearing to consider this ordinance, that’s certainly within your rights and means to do so,” said Sander. “However, know that Provco will then proceed before the zoning hearing board on its challenge and you stand the chance of them having to comply with zero of the provisions of the new ordinance because their application was filed first.
“That’s the risk that you take if we stop engaging Provco at this point and say, ‘Provco, here’s the ordinance either live with it or not.’ I predict they will not live with it and they will pursue their substantive validity challenge.”
Calabro, however, said that would go against their supposed good neighbor clause. “We can appeal to their company in general,” said Calabro. “We’re in good faith trying to pass something here which is for the betterment of the townships. Provco comes in and says no, no, no. We’re going to change it to the way we want it. In the court of public opinion, I think Provco loses,” said Calabro.
“Do you want to win the battle or the war? I think that we, in good faith, have shown we want this ordinance and want to go forward with it,” continued Calabro. “I just think if we don’t show a little backbone against Provco, what are we going to do against Sheetz or Royal Farms?
“And these other townships, I don’t know if they made a good show of faith in passing an ordinance like we’re doing,” added Calabro. “‘We’ve gone through a tiring process here and we’re down to the end. I just think for us to wait for Provco to give its blessing just seems to be a little out of line.”
Planning commission chair Allen Fidler said even if Provco filed its challenge and it eventually goes to the judges in the county to consider, “We have an arrow in our quiver. We have made a concerted effort to address this use. And because we are a jointure, the process is much more time consuming. We worked on this diligently and I think Newtown Township should be commended for its efforts. Getting something approved and on the books will demonstrate to the courts that we were serious about providing this use.”
Sander, however, said the court cannot consider an after enacted amendment when its considering a substantive validity challenge. “The three townships getting together and showing good faith and due diligence and approving this promptly that’s outside the four corners of what the court can look at when it is determining whether the ordinance as it existed before the amendment is Constitutional or unconstitutional.”
Calabro said that will be up to Provco. “Do they want to be township friendly or do they want to be a company that’s going to be looked down upon ... It’s not Provco of Newtown Township. We’re the Board of Supervisors of Newtown Township.”