In what some neighbors are calling a huge win for the community, the Bucks County Court of Common Pleas recently reversed a zoning determination by Northampton Township’s Zoning Hearing Board (ZHB) that would have allowed plans for a Super Wawa in Holland to proceed.
Judge Denise M. Bowman ruled that the ZHB abused its power on two separate occasions by determining and reaffirming that the proposed Wawa gas operation is “entirely incidental and subordinate” to the primary convenience store use of the property.
Essential to the case was developer Provco’s appearing to shift legal arguments midway through the appeals process in an attempt to clarify its case after the court initially remanded the matter back to the ZHB following an affirmative ruling by the body in April of 2021.
Provco’s original position that Wawa’s gas operation was a separate but subordinate use to the primary convenience store use (as determined by township Zoning Officer Mike Solomon) later evolved into the entire business (gas and convenience store) being one large primary use.
When questioned at a subsequent ZHB Hearing, Soloman testified that this interpretation was permitted because he determined the gas Wawa sells is a retail product equivalent to any other product the store sells, including hot food, ice, and baked goods. Bowman specifically highlighted this change in strategy as cause for reversal of the ZHB’s prior ruling.
A court decision summary read, “Prior to the remand, the court found that the record lacked the requisite substantial evidence to support the finding that the proposed fuel sales and dispensing use was ‘entirely incidental and subordinate’ to the proposed principal retail store use.
“Since that time, nothing has changed. There was, and remains, no substantial evidence in the record to support this finding. Accordingly, the ZHB committed an abuse of discretion when it denied the residents’ appeal and upheld the Zoning Officer’s Determination.
“The case before the court is attempting to address an appeal several residents put forth over two years ago that argued the proposed Super Wawa should be forced to go through the conditional use approval process in land development instead of the ‘by right’ process meaning a developer can build without the township attaching conditions to the project.”
Although Northampton Township specifically excludes gas stations from “by right” developments, it comes with the condition of “gasoline service stations.” Since Wawa does not provide services like oil changes, Provco argued the project should move forward as a “by right” development.
Christopher A. Papa, counsel for the residents, consistently argued that although Wawa does not contain a gasoline service element, it should still go through the conditional use process as a highly trafficked business more closely resembling a modern gas station than an old legacy convenience store-only Wawa.
Regardless of interpretation, the court did not find adequate evidence that Provco proved Wawa’s gas operation is “entirely incidental” to its convenience store. Therefore the matter will now go through the conditional use land development process should Wawa proceed with its plan or an appeal by the developer to a higher court in hopes of a ruling reversal.
A spokesperson for the residents opposing the project stated, “This court decision is a massive win for Holland and the community at large. It sends a clear message to Wawa and any other would-be developer that inappropriate corporate expansion will not be accepted without a fight. Our community is not about to back down after thousands of residents came together to oppose this highly inappropriate project that envisioned gas pumps extremely close to homes.”
He added, “Provco/Wawa’s attempt to masquerade as a convenience store-only business to skirt the much lengthier approvals needed for a gas station is not only cowardly, it’s unbecoming of a business that was formally an asset to the community. We simply will not stand for over-development, not in Holland and not anywhere else.”
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