Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

In Re: Appeal of Costco

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


July 31, 2012

IN RE: APPEAL OF COSTCO WHOLESALE CORPORATION FROM THE DECISION DATED DECEMBER 30, 2010, OF THE ZONING HEARING BOARD OF MONTGOMERY COUNTY APPEAL OF: COSTCO WHOLESALE CORPORATION

The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

Argued: May 15, 2012

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY JUDGE LEAVITT

Costco Wholesale Corporation (Costco) appeals an order of the Court of Common Pleas of Montgomery County (trial court) holding that Costco's proposal to install a gasoline filling station adjacent to its retail store was not permitted as an accessory use. The trial court construed the provision of the Zoning Ordinance that permits "shops, stores or other indoor facilities" for retail sales not to include a gasoline service station, which is an outdoor facility. Because stand-alone gasoline filling stations are not permitted as of right, the trial court held they could not be permitted as an accessory use. Discerning no error in the trial court's holding, we affirm.

On May 8, 2009, Costco wrote to the Zoning Officer for Montgomery Township proposing to install 16 gasoline fueling pumps in the parking lot next to its existing store, which it believed to be permitted as an accessory use. The Zoning Officer responded that the Expressway Corridor Preservation Overlay District (Overlay District), where Costco's store is located, permits indoor retail sales, but not outdoor retail sales, such as gasoline filling stations. MONTGOMERY TOWNSHIP ZONING ORDINANCE of 1952, AS AMENDED IN 1959 (ZONING ORDINANCE), §230-199.B(2)(a); Reproduced Record at 490a (R.R. ___). The Zoning Officer also rejected Costco's proffered theory that the outdoor sale of gasoline was a use subordinate and customarily incidental to an indoor retail store. Costco appealed the Zoning Officer's determination to the Zoning Hearing Board, requesting a reversal of the Zoning Officer's decision or, in the alternative, a variance. The two requests were separately litigated. This appeal concerns the Zoning Officer's denial of Costco's request to build a gasoline filling station as a permitted use accessory to its retail store.

The Board convened a hearing on Costco's variance application; the Township did not appear. The Board denied Costco's application, and Costco appealed to the trial court.*fn1 Next, the Board convened a hearing on Costco's appeal of the Zoning Officer's determination. Costco submitted the record developed at the variance hearing to support its appeal. A summary of that record evidence follows.

Kirk Clauss, a consulting engineer, testified as an expert witness for Costco. He explained that Costco's existing retail store is located on 9.44 acres of land and is surrounded by a parking lot. Adjacent to the Costco store are several other retail stores, including a bank and restaurant. Costco proposes to eliminate 84 parking spaces to construct a canopy with four fuel bays, which will house 16 fueling positions. The pumps will be self-service, but an attendant will be present in a small building to address customer problems and issues. Clauss explained that traffic flow in the parking lot will be reconfigured so that vehicles will travel in a one-way pattern through the fueling stations.

Jeff Rutter, who does real estate development and planning for Costco, also testified. He explained that he has worked at 64 Costco stores, and 59 of them provide gasoline sales. Costco has been installing gas stations at its retail stores since 1999. It has been so successful that Costco's major competitors, Sam's Club and BJ's Wholesale, have followed suit. In fact, the Sam's Club and BJ's Wholesale located closest to Costco each provide their member customers with retail gasoline. Neither of these retail stores is located in the Overlay District.

Rutter presented a demonstrative exhibit that illustrated the progression of Costco's business plan of adding gasoline sales to its existing stores. It showed that 77% of Costco stores now include gasoline sales at their retail store sites, and 19% of Costco customers use the service. The exhibit presented statistics on the growing trend of "big box" stores adding gasoline sales to their existing stores. Rutter testified that 55% to 73% of membership warehouse club chains, such as Costco, now include gasoline sales. Rutter testified that Costco has eight retail stores in Pennsylvania, and four of them provide gasoline service.

Costco's final witness was John Harter, a licensed civil engineer, who was offered as an expert witness in traffic engineering and design. He testified about his traffic and parking study for the Costco gasoline filling station. He did not believe that Costco's proposed filling station would generate more traffic because it would be available only to Costco members, who were not likely to make a special trip for gasoline but, rather, would combine that purchase with other shopping errands at the Costco store. The filling station would be configured to provide a one-way traffic flow with sufficient space for queuing. Costco's parking lot has 723 spaces and is only 60% full at peak hours; the elimination of 84 parking spaces would leave plenty of parking for the store.

In addition to receiving the evidentiary record from the variance hearing, the Zoning Board heard oral argument from Costco and from the Township. The Board denied Costco's appeal of the Zoning Officer's determination that Costco's proposed gasoline filling station was not authorized in the Overlay District.

In its decision, the Zoning Board expressed concern that Costco's proposed use would attract additional motor vehicles and eliminate parking in an already congested area. It believed that the proposed traffic pattern for Costco's gasoline filling station could impede traffic flow in the parking lot. However, the Zoning Board disposition was based upon its construction of the Zoning Ordinance, which it construed not to permit gasoline filling stations in the Overlay District.

The Board explained that accessory uses were permitted where (1) the use is subordinate to the permitted Overlay District use, (2) the use is customarily incidental to the permitted Overlay District use, and (3) the use complies "with the standards applicable to the permitted use to which they are accessory." ZONING ORDINANCE, §230-199.F; R.R. 493a. The Board reasoned that the "standard" applicable to the permitted use of retail sales was that the sales be conducted in an "indoor" facility. Because the sale of gasoline takes place outdoors, that use would not comply with the standard for a permitted retail use. The Board supported this conclusion by reviewing Section 230-199.B(2)(e)[1] of the Zoning Ordinance, which permits auto repair facilities in the Overlay District as "alternative retail" uses by special exception. R.R. 491a. However, that provision specifically excludes gasoline filling stations as an "alternative retail use."*fn2 The Zoning Board reasoned that if gasoline filling stations are not permitted as a special exception, it follows that they are not permitted as of right, as either a principal or accessory use. Neither party had referred to Section 230-199.B(2)(e)[1] in its argument.

Costco appealed to the trial court, and it affirmed. The Zoning Ordinance requires a proposed accessory use to comply with the standards applicable to the permitted use to which it is accessory. The trial court held that Costco's proposed sale of gasoline did not meet the standard that retail uses be conducted in "indoor facilities" because a gasoline service station is conducted outdoors. ZONING ORDINANCE, §230-199.B(2)(a); R.R. 490a (emphasis added). The trial court rejected Costco's argument that a drive-through facility, such as a gasoline filling station, is accessory to Costco's store in the same way that a restaurant's drive-through window, which is specifically allowed in the Overlay District, is accessory to a permitted sit-down restaurant. The trial court reasoned that the drive-through window is predominately indoors because the order is taken from a person sitting inside the restaurant; the food is prepared inside; and the payment is taken by a cashier sitting inside. The customer remains inside his vehicle for the entire transaction. By contrast, at a self-service gasoline filling station, the attendant is outside; the pumps are outside; and the customer must leave his vehicle to pump the gas and pay for it.

The trial court agreed with Costco that the Zoning Board should not have considered Section 199.B(2)(e)[1] of the Zoning Ordinance in its analysis because neither party had done so. The trial court held, however, that the Zoning Board's error was harmless because the Board did address the issue that was raised by Costco, i.e., whether a gasoline filling station is a permitted accessory use in the Overlay District.

Costco appealed to this Court.*fn3 It raises two issues for our review: (1) whether the sale of gasoline is a permitted accessory use under the Zoning Ordinance and (2) whether the Board committed an abuse of discretion or an error of law in addressing the issue of a special exception.

The issue is the proper interpretation of the Zoning Ordinance. The Zoning Ordinance identifies five categories of permitted uses in the Overlay District, and one category is a retail use. The Zoning Ordinance then specifies the retail uses permitted as of right and those authorized as a special exception or a conditional use. That list is set forth in Section 230-199.B(2)(a), and it states, in relevant part, as follows:

The five types of retail uses allowed in the Overlay District are:

(a) Standard retail uses permitted by right. Shops, stores or other indoor facilities for the retail sale of goods or merchandise to the general public for personal, household or other private consumption and the rendering of services incidental to the sale of such goods, including but not limited to the following types of stores, are permitted by right:

[1] Retail sale of dry goods, variety merchandise, clothing, food, beverages, flowers and plants, drugs, household supplies, garden supplies and equipment, athletic and/or recreational equipment and auto parts or similar goods.

[2] Motor vehicle sales facilities for new and used motor vehicles are prohibited.

[3] Retail sale and repair of jewelry, clocks, optical goods, cameras, home appliances, computers and other electronic equipment, scientific and professional instruments or similar goods.

[4] Restaurants, taverns and indoor eating facilities; drive-through and fast food facilities are permitted up to 5,000 square feet maximum in gross floor area each. (Fast food facilities are defined as being establishments where any one of the following occur or apply: no table service; food is dispensed by cafeteria style, no bussing of tables; and the use of disposable utensils).

(b) Standard retail uses permitted by conditional use.

[1] Restaurants or similar indoor eating facilities with drive-through and fast food facilities larger than 5,000 square feet in gross floor area each shall be standard retail uses permitted by conditional use.

[2] Motor vehicle sales facilities for new and used motor vehicles are prohibited.

(c) Alternative retail uses permitted by right. The following alternative retail uses shall be permitted by right:

[1] Banks and financial institutions, including drive-through facilities.

[2] Offices developed as part of a retail center..

[3] Service shops, including barber, beauty salons and dry cleaning pickup.

[4] Restaurants, taverns or similar indoor eating facilities, excluding all drive-through and fast food facilities.

[5] Stores that sell furniture, carpeting or other large-scale items and that have lower trip generation rates.

[6] Similar uses to the above alternative retail uses, if the applicant can demonstrate that the use meets the standard in § 230-199, above.

[7] Motor vehicle sales facilities for new and used motor vehicles are prohibited.

(d) Alternative retail uses permitted by conditional use.

[1] Indoor theaters or entertainment facilities ..

[2] Motor vehicle sales facilities for new and used motor vehicles are prohibited.

(e) Alternative retail uses permitted by special exception.

[1] Auto repair facilities, when authorized by special exception and excluding the following: auto parts stores, junkyards, auto body and painting facilities, gasoline filling stations, and car washes. [Amended 4-27-2009 by Ord. No. 09-236Z]

[2] Motor vehicle sales facilities for new and used motor vehicles are prohibited.

ZONING ORDINANCE, §230-199.B(2)(a)-(e); R.R. 490a-491a.

Critical here is the language of Section 230-199.B(2)(a) that identifies the "[s]tandard retail uses permitted by right" as "[s]hops, stores or other indoor facilities for the retail sale of goods or merchandise to the general public.." ZONING ORDINANCE,§230-199.B(2)(a); R.R. 490a. Subsection (a) lists a number of examples of retail uses permitted by right that range from the "sale and repair of motor vehicles" to the "sale and repair of clocks" and "home appliances." It is notable that the drafters of this long and varied list did not include the sale of gasoline, a very common retail activity, but did include the more obscure retail activity of clock repair. Also notable is the fact that the list speaks to a retail activity that often takes place indoors and outdoors, i.e., the sale of motor vehicles. Section 230-199.B(2)(a)[2] clarifies that the sale of motor vehicles is prohibited, even where, presumably, it may be confined to an indoor facility.

The Zoning Board and trial court concluded that the unifying theme of the Zoning Ordinance's exhaustive list of permitted retail uses, which did not include gasoline filling stations, was that the retail sales had to be conducted in "indoor facilities" in order to be permitted as of right. Costco contends that the phrase "other indoor facilities" is no more than an aside and does not express a standard for retail uses permitted as of right. A "standard," it contends, refers to the requirements for the building in which the use is conducted, such as dimensional requirements, or requirements limiting the use, such as hours of operation. Costco notes, correctly, that the list in Section 230-199.B(2)(a) was not intended to be all-inclusive because of the proviso "included but not limited to" at the introduction of the list. Costco argues that if a permitted restaurant use may include a "drive-through" feature, then it follows that a Costco store may include a "drive-through" feature for the sale of gasoline.

The Zoning Ordinance permits "shops, stores or other indoor facilities" in the Overlay District, but it does not define "indoor." Undefined terms must be construed "according to their common and approved usage." 1 Pa. C.S. §1903(a).*fn4 The plain meaning of "indoor" is "the interior of a building" or "something done inside a building." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY at 1154 (2002). Pumping gasoline does not take place indoors.

Further, under the ejusdem generis canon of construction, "other indoor facilities" must be interpreted to include things of the same type as what is included in the preceding list, i.e., "shops" and "stores." Independent Oil and Gas Association of Pennsylvania v. Board of Assessment Appeals of Fayette County, 572 Pa. 240, 246, 814 A.2d 180, 184 (2002) (citation omitted). A gasoline filling station is not a "shop" or a "store." Lest there be any doubt, the drafters gave a long and detailed list of what they consider to belong on a list of shops and stores. The only use that comes close is a "facility" that sells motor vehicles; unfortunately for Costco the drafters expressly struck such facilities from the list.

In sum, a gasoline filling station is not a shop, store or other indoor facility. That is why it is not included in the list of permitted retail uses. The omission must be presumed intentional.

Costco argues, however, that some of the retail uses in the list take place outside. In support, it notes that "drive-through" windows and the "retail sale of . flowers and plants . garden supplies and equipment" are on the list. ZONING ORDINANCE, §230-199.B(2)(a)[1]-[4]; R.R. 490a. Plants and flowers can be sold inside grocery stores, and lawn mowers can be sold inside hardware stores. These items, to be sure, may also be sold outdoors, but Costco offered no existing examples within the Overlay District of such outdoor retail facilities. The trial court explained that the drive-through window of a restaurant is more indoors than outdoors, and we accept that cogent logic.

Finally, Costco directs our attention to Section 230-156.4 of the Zoning Ordinance, which provides "Special regulations for restaurant, outdoor customer dining area."*fn5 This provision specifically allows outdoor dining in certain districts, including the Overlay District, as an accessory use by special exception. Costco contends that if outdoor dining can be done in the Overlay District, then it follows that gasoline sales can be permitted.

We disagree. The Zoning Ordinance was structured to address outdoor dining as a separate, stand alone issue, and it specifically allows outdoor dining in the Overlay District as an accessory use by special exception. Presumably, this was because, otherwise, outdoor dining would not be done in the Overlay District. If anything, the outdoor dining provision supports the Zoning Hearing Board's construction of Section 230-199.B(2)(a). The principle expressio unius est exclusio alterius provides "that the expression of one thing implies the exclusion of another thing not mentioned." Marion Center Area School District v. Marion Center Area Education Association, 982 A.2d 1041, 1044 n.2 (Pa. Cmwlth. 2009). The Zoning Ordinance did not enact a special and comparable provision for outdoor gasoline filling stations, and that omission must be presumed intentional.

Logically, Costco's proposed gasoline filling station does appear to be a natural adjunct to its retail store, and it is hard to discern any policy reason not to allow a gasoline filling station in an ample parking lot. The Township Fathers decided to exclude outdoor retail facilities, such as temporary flea markets or farmers' markets stalls, from the Overlay District. There is no dispute that a gasoline filling station is an outdoor facility and, thus, does not meet the standard for retail stores permitted by right. By extension, this standard excludes Costco's proposed accessory use.*fn6

In Costco's second issue, it challenges the Board's holding that Costco was not entitled to build a gasoline filling station by special exception as an alternative retail use under Section 230-199.B(2)(e). The trial court held that the Board erred in raising the issue, sua sponte, but it was a harmless error. A tribunal may affirm on alternate grounds, and that is what the Zoning Hearing Board did here. Accordingly, it was not error for the Board to affirm the Zoning Officer's decision by conducting a more thorough analysis of the Zoning Ordinance.

However, it is of no moment because we agree that "other indoor facilities" as used in Section 230-199.B(2)(a) was intended to have limiting effect and to exclude gasoline stations. Because accessory uses are permitted only when "in compliance with the standards applicable to the permitted use to which they are accessory," the sale of gasoline is an impermissible use. ZONING ORDINANCE, §230-199.F; R.R. 493a.

For these reasons, the order of the trial court is affirmed.*fn7

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Appeal of Costco : Wholesale Corporation from : the Decision Dated December 30, : 2010, of the Zoning Hearing Board of : Montgomery County : Appeal of: Costco Wholesale : Corporation :

No. 2095 C.D. 2011

ORDER

AND NOW, this 31st day of July, 2012, the order of the Court of Common Pleas of Montgomery County dated October 18, 2011, in the above captioned matter is hereby AFFIRMED.

MARY HANNAH LEAVITT, Judge


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.