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In re Appeal of Provco Pinegood Sumneytown, LLC

Commonwealth Court of Pennsylvania

July 29, 2019

In Re: Appeal of Provco Pinegood Sumneytown, LLC From The Decision Dated December 4, 2017 of The Board of Commissioners of Upper Gwynedd Township Appeal of: Provco Pinegood Sumneytown, LLC

          Argued: June 3, 2019

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ELLEN CEISLER, Judge

          OPINION

          ROBERT SIMPSON, JUDGE.

         I. Introduction

         In this land use appeal, Provco Pinegood Sumneytown, LLC (Developer) appeals from an order of the Court of Common Pleas of Montgomery County (trial court) that affirmed a December 2017 decision by the Upper Gwynedd Township (Township) Board of Commissioners (Commissioners) denying Developer's second application for preliminary land development approval for construction of a Wawa Food Market, which would be comprised of a convenience store and gasoline service station. The Commissioners' decision included 31 numbered paragraphs identifying specific reasons for denying Developer's application.

         Without taking additional evidence, the trial court affirmed the Commissioners on the grounds specified in Paragraph 31 of the Commissioners' decision. In Paragraph 31, the Commissioners reasoned that Developer failed or refused to seek special exception relief before the Township's Zoning Hearing Board (ZHB) as required by the Township's Zoning Ordinance. Because Developer's application violated the Zoning Ordinance, it also expressly violated the Township's Subdivision and Land Development Ordinance (SALDO).

         On appeal, Developer first contends the Commissioners erred in concluding that a zoning officer's report, made in the context of a land development plan review, was an appealable determination under the Pennsylvania Municipalities Planning Code (MPC).[1] Also, Developer asserts the Commissioners erred in concluding that Developer's failure to appeal the determination was a valid legal basis to deny its application where it had already received a decision from the ZHB permitting a convenience store with a gasoline service station at the property.

         Relevant for current purposes, Developer also contends the Commissioners erred or abused their discretion in denying its application based on traffic standards and requirements for safe road access not contained in any Township Ordinance. Further, Developer argues the Commissioners violated its due process rights by refusing to allow it to cross-examine witnesses whose testimony the Commissioners relied upon to support the denial of its second application. Upon review, we affirm, although on a different basis.[2]

         II. Background

         Developer owns two contiguous lots (site) located at the intersection of Sumneytown Pike and West Point Pike in a C-Commercial District in the Township. Developer proposed to build a 5, 585-square-foot Wawa convenience store with gasoline sales from eight outdoor detached fueling stations (16 fueling lanes), and 56 parking spaces. The fueling stations would be located under a detached 7, 150-square-foot A-frame canopy. A convenience store is a retail use permitted by right in the C-Commercial District.

         A. Related Zoning Proceedings

         In November 2016, the ZHB issued a decision determining that Developer's proposed gasoline sales use was an accessory use to a by-right principal convenience store retail use. See ZHB Dec., 11/22/16; Reproduced Record (R.R.) at 460a-61a. The decision was appealed to the trial court. On March 23, 2018, in an opinion and order by Judge Daniel J. Clifford, the trial court reversed the ZHB, holding that Developer failed to demonstrate that the gasoline sales use was an accessory use to the convenience store. The trial court remanded the case to the ZHB to determine whether Developer was entitled to a special exception for its proposed gasoline sales use. Developer appealed to this Court, which quashed the appeal as from an interlocutory order. See In Re: Appeal of Bd. of Comm'rs of Upper Gwynedd Twp. (Appeal of Provco Pinegood Sumneytown, LLC) (Provco I) (Pa. Cmwlth., No. 502 C.D. 2018, filed April 3, 2019), 2019 WL 1492781 (unreported).

         B. Planning Commission Proceeding on First Application

         Meanwhile, in January 2017, Developer submitted its first preliminary land development application to the Planning Commission. Merck & Co., Inc. (Merck) and Hartford Properties, Inc. (Hartford), two neighboring property owners, were permitted to intervene in opposition to the application. The Planning Commission held five meetings on the application. The Township and Merck presented engineering testimony on alleged traffic, stormwater and other engineering deficiencies. At the final meeting, the Planning Commission voted six to one to reject the application.

         C. Zoning Officer's Determination (Special Exception)

         In addition, after reviewing the application, the Township's specially appointed Conflict Zoning Officer Kenneth Amey (Zoning Officer), notified the Township Manager by letter (copied to Developer and others) that the gasoline sales use required special exception approval under the Zoning Ordinance. Although Developer initially appealed the Zoning Officer's letter regarding the need for a special exception, Developer later withdrew its appeal. Developer took the position that the Zoning Officer's letter to the Township Manager did not constitute either a decision on a permit application or a formal zoning opinion. Rather, Developer interpreted the Zoning Officer's letter as a review letter offering comments on Developer's first application.

         D. Commissioners' Denial of First Application

         At a July 2017 Commissioners' meeting, the parties again presented engineering evidence. The Township and Merck again focused on traffic and stormwater management concerns. Due to various deficiencies in the application, the Commissioners voted at the meeting to deny the application.

         On August 7, 2017, the Commissioners issued its written decision. The Commissioners set forth 50 specific reasons for denying the application. Paragraphs 18, 20 and 21 addressed stormwater management deficiencies. Paragraphs 26-43 addressed traffic impact design and site ingress/egress deficiencies. Most notably, a driver exiting the site onto eastbound Sumneytown Pike would not be able to see the required distance to the west (or left) because of a blind curve and a train overpass which blocks the view of oncoming eastbound drivers. Paragraph 44 addressed parking deficiencies for oversized vehicles, common at other Wawa locations, which lead to the obstruction of traffic. Paragraph 50 addressed the Zoning Officer's letter regarding the need for a special exception for a gasoline sales use.

         E. Second Application

         On August 15, 2017, Developer submitted its second preliminary land development application, which was substantially similar to the first application. The Township's engineers again issued review letters to the Township Manager regarding various unresolved deficiencies. Zoning Officer issued a second letter to the Township Manager (copied to Developer and others) again noting the need for a special exception for gasoline sales. Developer did not appeal Zoning Officer's second letter indicating the need for a special exception.

         In October 2017, in response to a review letter from the Township's engineers, Developer submitted revised plans. Zoning Officer issued a third letter to the Township Manager (copied to Developer and others) indicating a special exception would be needed for gasoline sales. Developer did not appeal this letter.

         Ultimately, the Planning Commission voted 4-3 to approve the second application subject to two conditions. First, the exit on the western driveway on Sumneytown Pike must have a larger "pork chop" traffic barrier, which would more effectively preclude drivers from making prohibited left turns onto Sumneytown Pike. See R.R. at 1001a. Second, drivers must be prohibited from making left turns onto West Point Pike during the A.M. and P.M. peak hours. Id.

         Following the Planning Commission's conditional approval, Merck provided the Township Manager (copied to many others) with updated expert engineering reports regarding unresolved stormwater deficiencies. Merck also provided the Township with an expert engineering report detailing numerous traffic deficiencies.

         F. Commissioners' Denial of Second Application

         At a November 2017 public meeting, the parties again presented engineering evidence, including various traffic studies regarding safe stopping distance for egress from the site to Sumneytown Pike, anticipated U-turns and illegal left turns onto West Point Pike during peak hours, and insufficient parking for trucks and oversized vehicles. The evidence included studies of these types of problems at similarly designed Wawa locations.[3]

         At the conclusion of the meeting, the Commissioners voted unanimously, with one abstention, to deny the second application. On December 4, 2017, the Commissioners issued a written decision containing 31 specific reasons to deny the application. Reasons 7 and 8 addressed stormwater management deficiencies. Paragraphs 9-26 addressed traffic design and road access deficiencies. Paragraph 27 addressed the failure to provide parking for oversized vehicles, delivery trucks, landscaping trucks with trailers, recreation vehicles and larger commercial trucks. Paragraph 28 addressed internal site circulation deficiencies.

         Paragraph 31 addressed Developer's failure to obtain a special exception for gasoline sales use. The Commissioners noted that Developer failed to appeal the Zoning Officer's determination that the Zoning Ordinance required a special exception for a gasoline sales use. To that end, the Commissioners indicated that in a proceeding to determine whether to approve or disapprove a plan, a zoning officer's interpretation constitutes a determination under the MPC upon which the Commissioners may rely.

         Addressing the facts here, the Commissioners observed that Developer must appeal the Zoning Officer's determination within 30 days as required by Section 914.1 of the MPC, 53 P.S. §10914.1.[4] The Commissioners further noted that Section 909.1(a)(3) of the MPC, 53 P.S. § 10909.1(a)(3), [5]provides the ZHB with exclusive jurisdiction to hear and render a final adjudication on appeals from a zoning officer's determinations and that failure to appeal renders such determinations binding. Because Developer neither appealed Zoning Officer's determination nor applied for a special exception, the Commissioners determined Developer's proposed development violated Section 195-22.A(8)(c) of the Zoning Ordinance. Developer appealed the Commissioners' decision to the trial court.

         G. Trial Court's Decision and Order

         In November 2018, the trial court affirmed the Commissioners' order denying Developer's second application. In so doing, the trial court, in a decision by Judge Wendy G. Rothstein, observed that the rejection of a land development plan may stand if supported by even one of several objections, relying on Robal Associates, Inc. v. Board of Supervisors of Charlestown Township, 999 A.2d 630 (Pa. Cmwlth. 2010). Here, the trial court relied solely on the Commissioners' determination in Paragraph 31. More specifically, the trial court recognized that Section 195-22.A(8)(c) of the Zoning Ordinance requires a special exception for a gasoline service station, regardless of whether it is a primary or accessory use. The trial court also noted that the Zoning Officer's second and third determinations became final upon Developer's failure to appeal them within 30 days. See Lower Mount Bethel Twp. v. Gacki, 150 A.3d 575 (Pa. Cmwlth. 2016) (the developer's failure to appeal violation notice within 30 days resulted in conclusive determination of ordinance violation).

         Therefore, Judge Rothstein agreed with Judge Clifford's decision in the related zoning case that Developer's proposed development is in violation of Section 195-22.A(8)(c) of the Zoning Ordinance and Sections 168-13.E(6) and 168-13.H of the SALDO based on Developer's failure to obtain a special exception for the gasoline sales operation. Accordingly, the trial court determined the Commissioners' rejection of Developer's second application was validly supported by the Commissioners' reasons for denial set forth in Paragraph 31. Consequently, the trial court affirmed the Commissioners' denial of Developer's second application. Developer appeals.[6]

         III. Discussion

         A. Plan ...


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