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BOARD SUPERVISORS UPPER MERION TOWNSHIP AND UPPER MERION TOWNSHIP AND WILLIAM W. KEIL v. WAWA (02/25/86)

decided: February 25, 1986.

BOARD OF SUPERVISORS OF UPPER MERION TOWNSHIP AND UPPER MERION TOWNSHIP AND WILLIAM W. KEIL, APPELLANTS
v.
WAWA, INC., APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Wawa, Inc. v. Board of Supervisors of Upper Merion Township, Upper Merion Township and William W. Keil, No. 84-12274, dated May 30, 1985.

COUNSEL

James E. Meneses, Meneses & Dean, P.C., for appellants.

Edward J. Hughes, with him, John G. Kaufman, Kaufman & Hughes, for appellee.

Judges Doyle and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 95 Pa. Commw. Page 264]

This is an appeal from an order of the Court of Common Pleas of Montgomery County which sustained the appeal of Wawa, Inc. (Wawa) from a determination of the Zoning Hearing Board of Upper Merion Township (ZHB). The Court's order directed that (1) ZHB approve Wawa's second revised development plan submitted on October 23, 1984 and issue the necessary zoning and building permits for

[ 95 Pa. Commw. Page 265]

Wawa's proposed convenience store and (2) the parties, or the court, if necessary, establish reasonable off peak hours for truck deliveries.

Wawa is seeking to build a convenience store at the intersection of Prince Frederick Street and Henderson Road in King of Prussia, Pennsylvania. In October of 1983 Wawa sought and received from the ZHB a use variance with the following conditions:

1. Elimination of a proposed driveway from Henderson Road, it being the opinion of the Board that a hazardous condition would be created.

2. Relocation of Prince Frederick Street driveway 'as far as possible' from the Henderson Road intersection.

3. Preservation of as many of the existing trees on the property as possible.

The variance was subject to modification by the Board of Supervisors at the time of development plan approval. Wawa accepted the above conditions and did not appeal. Wawa then submitted its development plan to the ZHB. Following a public hearing Wawa was notified by letter dated July 17, 1984 that the plan was denied for thirteen specific reasons. On August 9, 1984 Wawa appealed the ZHB decision and, in addition, filed a mandamus action to compel the ZHB to issue the necessary permits. On September 24, 1984 the trial court judge and all parties made an on site inspection of the premises. Included among those viewing the property were the engineers for both parties. During that view alternative layouts for the proposed construction were discussed. Subsequent to this the trial court ...


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