Convenience Store Zoning Case Provides Important Lessons for Developers

January 30, 2020Alerts

Protestants opposing zoning relief to prevent competition and the loss of their business can be “formidable foes,” as a recent case from suburban Philadelphia demonstrates.  

In Tinicum 15 Industrial Highway, the Tinicum Township Zoning Hearing Board (ZHB) granted the applicant nine dimensional variances to construct a new Wawa market in Tinicum Township, Delaware County, Pennsylvania. A protestant (500 Wanamaker Avenue Partners), who owns an adjacent Sunoco gas station, requested party status at the ZHB hearing and then appealed the ZHB decision to the trial court. 

At the ZHB hearing, the protestant did not provide any evidence but simply cross-examined the applicant’s witnesses. Interestingly, counsel for the applicant did not appear to call as a witness and cross-examine the principal of the protestant, who was identified at the hearing. The trial court denied the applicant’s motions to quash the land-use appeal and to require the protestant to post a bond but then denied the protestant appeal. 

The Commonwealth Court reversed the trial court’s decision in finding that there was “simply nothing substantive in the record” to support the testimony that the variances were the minimum necessary to facilitate the reasonable development of the property. Furthermore, the Commonwealth Court found that the record was devoid of any evidence showing that the applicant attempted to develop the property without the need for dimensional variances.

This case demonstrates why it is important to cross-examine the principals of the protestant to identify, under oath, their specific objections to the requested relief. It is also key to establish a detailed record as to each and every element to support the grant of the requested variances. Pursuant to this case, it is also critical to show that the subject property cannot be reasonably developed without the requested zoning relief.