Newtown ZHB Issues Official Provco/Wawa Decision

The Newtown Township Zoning Hearing Board (ZHB) issued its official written decision regarding the Application of Provco Pineville Acquisitions, LLC to build a Wawa super store at the intersection of the Newtown Bypass and Lower Silver Lake Road in Newtown.

The decision grants the applicant’s request for a special exception to operate a Motor Vehicle Fueling and Convenience Store, but denies the applicant’s requests for all variances (number of fueling stations and sign relief). The ZHB voted 3-2 on September 20, 2021, to deny the variances (read “Breaking News: Wawa's Request for Zoning Variances Denied!”).

All parties have 30 days from November 4, 2021 to file an appeal to the Court of Common Pleas from the Decision. I fully expect Provco to do so.

“Findings of Fact”

There will be one (1) charging station but it will be utilized by two (2) parking spaces.

At the April 21, 2020, meeting of the Newtown Planning Commission, it was suggested among other things that the maximum number of gas pumps should be eight with allowances for an additional four electric charging stations.

The canopy would be a rectangular roof structure that will have a peaked roof and would appear as an A-frame from the northeast and southwest sides.

A high-speed diesel fueling station (for large tractor-trailer trucks) will not be located on the Subject Property.

Members of the Planning Commission and BOS expressed concern that such fueling stations would attract more large truck traffic on the Bypass.

Security cameras that can be accessed by the Township police will be installed. There was concern that a 24-hour business like this would attract criminals.

NOTE: Although the NTPC recommended and 18-hour operation limit, the final E-30 Gas Station-Convenience Store Ordinance does not limit the hours of operation. It states merely “Lighting shall be dimmed to 50% no later than one hour past the close of business unless the use is a 24-hour per day operation.” But it also states “The Board of Supervisors may limit the hours of operation if a residential use is located within 750 feet of the subject property line.”

 “24 hour lights are really out of place here, and would have a negative impact on wildlife as well.” – Comment form a respondent to my Wawa survey.

In regards to a drainage facility to be provided to dispose of the surface runoff, the Applicant has reserved a proposed storm water management facility in the southern corner, which is the lowest point of the property and the ideal place for the location of a storm water management facility.

 “Question is again they are lowering the ground level to area with no sewers in place that will flood the area out as well as put running water towards the homes that don’t have any drainage and septic and wells. What about the street pollution that cars will bring to that area and then runs off to the homes next to wawa ! Something has to be done to protect the property’s next to wawa.” – Comment from Gary Fabiano on FB.

“Environmental damage to the lake and surrounding area. The water run off and trash will enter the lake. Fish and wildlife are abundant in the area. In the summer, the lake is green and struggles with oxygen balance. The Wawa will worsen the condition.” – Comment form a respondent to my Wawa survey.

The visibility of the wall sign from the Bypass would be obstructed, considering that an individual has to see through the canopy roof and all the columns in order to see the wall sign.

It was suggested by the Newtown solicitor that having the wall sign visible from the Bypass would eliminate the need for other signage facing the Bypass.

There is a ten (10') foot embankment at the Bypass line of the Subject Property and the Applicant is planning to cut that embankment to approximately four (4') to five (5') feet high. The berm has to be cut down in order to provide visibility and to make sure that a driveway can be connected.

“What about the homes near the wawa ? Reducing the berm !! Geez we hear the cars on the bypass already the homes are from the 60s here way before the bypass so now more traffic by are homes the smell of gas possibly of a spill in are wells and creeks and also more traffic noise?” – Comment from Gary Fabiano on FB.

The Applicant is going to remove some trees from the preservation area because they are cutting down the berm and there will be vegetation and landscaping that will be provided in its place.

Meanwhile, the street view shown in the plan looks like there is no berm at all!

The striped area on Ex. A-6 is intended to be a future driveway to connect to, in the event there is ever future development on the opposite side of the PECO property.

At the March 15, 2021, Newtown Board of Supervisors Work Session, representatives of Lotus Park Senior Living LLC, presented a "sketch plan" for a Lotus Park Senior Living facility adjacent to the site of a proposed Wawa (see image below). This use is not a permitted use in the OR - Office Research Zoning District.

Selected Testimony from Wawa Project Engineer

Michael Redel, a real estate project engineer employed by Wawa, made these points in his testimony (listen to his testimony: “Newtown Township Versus Wawa: Round 1, Signage”).

No drive-in windows are being proposed for the sale of convenience items.

Wawa hires employees from the local area.

There will be no signage on the canopy itself and the pumps themselves will be branded as Wawa. The pumps are located within 1,000 feet of the Newtown Bypass.

Wawa is not planning any signage offsite, such as a sign on Interstate Route 95 (I-95) or Interstate Route 295 (I-295) that might direct people to the site.

The only time when Wawa would have temporary banners placed on the property would be during the first thirty (30) days because Wawa typically fly banners that read "now open" or "welcome" during that time period.

Selected Testimony from Wawa Traffic Engineer

Matthew Hammond, Executive Vice President of Traffic Planning and Design (TPD), who was qualified as an expert in both signage and traffic, offered the following testimony tidbits (listen to his testimony: “Newtown Township Versus Wawa: Round 2, Signage Part Deux”).

The "cone of vision" that TPD looks at when looking at where a sign is located, is essentially the cone of your vision without taking your eyes off of the road in order for you not to have to turn your head one direction or another when traveling down the roadway on a roadway.

A traffic impact study was conducted by TPD in August 2018.

This Transportation Impact Study concludes "...all study area intersections will satisfy Penn DOT ILOS Standards, with the exception of the ILOS at the intersection of Newtown Bypass (S.R. 0332) and Lower Silver Lake Road/Newtown-Yardley Road, which will degrade from ILOS C to ILOS D, during the weekday A.M. peak hour. It is TPD's [traffic engineers hired by Wawa who did the study] opinion that ILOS D is acceptable in urban areas and further improvements would be infeasible at the intersection [emphasis added]."

The research provided by the ITE says that twenty-four (24°) percent of the traffic that will enter and exit this use is new to the roadway network, so if there are one hundred (100) vehicles generated during the A.M. peak hour, twenty-four (24) of the vehicles will be added to the roadway network are new.

A crosswalk would be provided along the entire frontage of Lower Silver Lake Road but no applications would be sent to PennDOT in order to put any type of crosswalk on the Newtown Bypass.

Some residents contend that children on bikes will cross the Bypass in order to get to the Wawa and that this is an unacceptable danger to the health and well-being of residents.

Selected Testimony from the Township’s Consultant

David Babbitt, who was qualified as an expert in land planning and zoning, offered the following testimony tidbits (listen to his testimony: “Newtown Twp vs Wawa: Round 3, Newtown's Expert Testifies”).

Of the twenty (20) Wawas in Bucks County, fourteen (14) have only six (6) fuel pumps. Three (3) out of the twenty (20) have more than six (6) pumps and the final three were too new to appear on Google Maps.

If a sign is designed to be legible and visible from the Bypass, it would be prohibited.

To be oriented toward the Bypass, even if it is not perfectly parallel, means that [a sign] is designed to be visible and legible from the Bypass. There are two signs in the application, namely, the monument sign along the Bypass and the wall sign, that are facing the Bypass and would be prohibited. See, however, testimony above regarding the wall sign not being visible.

If there was no monument sign along the Bypass, someone who is driving along the Bypass and turns their head 90 degrees to see what is on the site will know that the site is a Wawa. There are more SUV s, pickup trucks, and more larger trucks where people are sitting up higher and their eye level is the same elevation of the height of the berm. [See street rendering above.]

EMCs or electronic message center signs, include signs that utilize technology not listed in the definition provided by the JMZO and shall include similar technology, which may be developed in the future.

It is the JMZO, not the limitations of the site, that determine the number of fuel dispensers. There is a rational basis for limiting the number of fuel dispensers on a site less than five (5) acres to six (6) fuel dispensers, which would be that larger properties can accommodate more development and smaller properties can accommodate less development. A fuel dispenser is an example of more development because more fuel dispensers on a site would be a more intensive development than the same site with fewer fuel dispensers.

The ZHB Decision

Gas Pumps

The Board denied the Applicant's request for a variance from Section 501(B)(2) of the JMZO to permit eight (8) gasoline pumps where only six (6) pumps are permitted on a lot of four acres.

The request for two (2) additional gas pumps is solely for the convenience of Wawa, which is a criterion that does not support the grant of a variance.

Adding an additional gasoline pump to the permitted 6 pumps would actually be an increase of 14.28% in the number of gasoline pumps on the Subject Property, far from a de minimis difference.

Wall Sign

The Board denied the Applicant's request for a variance from Section 1103.C.4 to permit the north-facing wall sign to face onto the Newtown Bypass. The JMZO provision of prohibiting signs within 1,000 feet of the Bypass from facing onto the Bypass was enacted to protect both traffic safety along the Bypass and aesthetics.

…if the sign is oriented to be visible and legible from the Bypass, the sign would "face onto" the Bypass. The Board therefore found that the Applicant did not satisfy their burden for a variance request from the terms of Section 1103.C.4 because this request would alter the essential character of the neighborhood or district in which the Subject Property is located, since it runs contrary to the JMZO's intention of keeping signs off of the Bypass.

Message Centers Displaying Fuel Prices

The Board denied the Applicant's request for a variance from the terms of Sections 1103(D)(3) regarding illumination of signs.

The Applicant asserted that variances would not be needed, arguing that the freestanding monument signs that include fuel price modules are not electronic message centers. However, the proposed electronically controlled scrolling fuel price elements would be classified as "Electronic Message Centers" under Section 1101.A of the JMZO.

These proposed signs would be considered EMCs that would be prohibited under the JMZO because the proposed fuel prices are "portions of signs" that display scrolling images and static images that are capable of change or alteration by electronic means.

Monument Signs

The Applicant sought these variances to allow more, larger, and taller signs than are otherwise permitted for retail uses in Newtown Township. The Board denied the Applicant's request for a variance.

While the specific E-30 use had not yet been created, the Applicant was aware of the existing sign provisions when proposing a Wawa located on the Subject Property.

Furthermore, the Board found that Applicant fail in meeting its burden because these signs variances would alter the essential character of the neighborhood or district in which the Subject Property is located, considering that there are few if any signs along the Newtown Bypass in the area of the Subject Property and the addition of signs run counter to the JMZO's intention of keeping signs off the Newtown Bypass.

Posted on 06 Nov 2021, 10:01 - Category: Development