The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Hatboro Borough, :
Appellant :
:
v. : No. 703 C.D. 2019
: Argued: June 8, 2020
Buckingham Retail Properties, LLC :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: November 9, 2020
Hatboro Borough (Borough) appeals from a May 2, 2019 Order of the Court
of Common Pleas of Montgomery County (common pleas) that found the Borough’s
Zoning Ordinance1 (Ordinance) unconstitutionally excluded convenience stores that
dispensed fuel from anywhere in the Borough. The Order also provided that
Buckingham Retail Properties, LLC (Applicant) was entitled to site-specific relief
to develop its proposed Wawa within the Borough.2 The Zoning Hearing Board of
Hatboro Borough (Board) previously denied Applicant zoning relief, including
Applicant’s substantive challenges to the Ordinance. Because the Board’s
1
Borough of Hatboro Zoning Ordinance of 1985, as amended, §§ 27-101 – 27-2606.
2
The Order required Applicant to submit an application that complied with the applicable
ordinances in effect at the time of the original application. It otherwise denied Applicant’s appeal
related to variances that had been requested and denied. Applicant has not cross-appealed from
the Order. Therefore, discussion of the variances has been omitted to the extent possible.
characterization of the proposed convenience store as a form of restaurant was
unreasonable and a convenience store with fuel pumps is not otherwise permitted
anywhere in the Borough, we agree the Ordinance is exclusionary. Accordingly, we
affirm common pleas’ Order reversing the Board.
I. BACKGROUND
A. Applicant and the Subject Property
The facts are undisputed. Applicant is the equitable owner of three parcels of
land located at the intersection of South York Road, also known as Route 263, and
Horsham Road in the Borough (collectively, Subject Property). (Board Decision,
Findings of Fact (FOF) ¶¶ 4, 6.) Two of the parcels are zoned RC-2 Retail
Commercial and have been vacant since 2014 when a nursing home and spa were
demolished; the only thing that remains on those parcels are two paved areas. (Id.
¶¶ 10, 25, 27-28.) The other parcel is zoned R-1 Residential and currently has a
single-family residence thereon. (Id. ¶¶ 10, 21.) The plan is to consolidate the three
parcels into one. (Id. ¶ 11.) There is access to all of the parcels from Horsham Road,
as well as from a long driveway from South York Road to the rear of the two parcels
in the RC-2 District. (Id. ¶ 26.)
The Subject Property is just under two acres in size. (Id. ¶ 17.) To the west
of the Subject Property is a row of single-family residences. (Id. ¶ 33.) To the south
of the Subject Property is Borough Hall and behind that is Victorian Village, which
has apartments, an insurance agency, “an Italian restaurant[,] a bank, and a
pharmacy” therein. (Id. ¶ 34.) This area is zoned O-Office. (Id.) South of Victorian
Village is a YMCA. (Id. ¶ 35.) The area across South York Road from the Subject
Property is zoned R-2 Residential, where a park is located. (Id. ¶ 36.) The area
2
across from the Subject Property on Horsham Road is zoned RC-2 and contains the
Old Mill Inn. (Id. ¶ 37.) Farther north of the Subject Property is “Technology
Learning Center, New Life Cleaners, RPM Cycles, U-Haul, Amy Pizza, [an]
automotive service [station], a used car lot[,] and a church.” (Id. ¶ 38.) South York
Road is the main corridor through the Borough, along which “there is
office/laboratory space, a pizza restaurant, service bays[,] and other commercial
uses.” (Id. ¶¶ 26, 40.) Along the east side of South York Road is a John Deere
dealership, which is catty corner to the Subject Property, as well as “a nail salon,
vacant retail office space, an engineer’s office[,] and an appliance store.” (Id. ¶¶ 41-
42.) This area is zoned HB Highway Business. (Id. ¶¶ 42-43.)
B. The Proposed Project
Applicant seeks to construct a 5,585-square-foot building on the Subject
Property that would be 33 feet high and house a Wawa. (Id. ¶¶ 46, 48.) Also
proposed are 6 fuel dispensing units with access on both sides, providing for 12 total
fueling positions. (Id. ¶ 49.) A 56.2-foot by 96-foot A-frame canopy would be
erected over the pumps, which, at its peak, would measure 20 feet, 8 inches high.
(Id. ¶¶ 51-53.) In addition, 3 underground storage tanks would be installed in an
area measuring 42 feet by 46 feet, or 1,932 square feet. (Id. ¶¶ 56, 58.) Fifty parking
spaces are also proposed. (Id. ¶ 66.) Some parking, a masonry dumpster enclosure,
a shed, and possibly a light pole and bollard are the only items that would be located
on the parcel in the R-1 District. (Id. ¶¶ 68, 75-77, 82.)
On March 7, 2017, Applicant submitted an application seeking five variances
needed in order to proceed with the proposed plan. (Id. ¶ 2; Supplemental Record
(Suppl. R.), Ex. A-1.) On May 10, 2017, Applicant filed an amended application,
3
withdrawing its request for three variances and asserting substantive validity
challenges to the Ordinance based on de jure and/or de facto exclusion of retail stores
that also sell fuel.3 (FOF ¶¶ 2-3; Suppl. R., Ex. A-2.) In the alternative, Applicant
sought variances “[t]o permit improvements associated with a retail store use in the
R-1 zoning district, and to permit an accessory use, motor vehicle fuel sales, not to
be located at or above the second-story level” or “[t]o permit a retail store with motor
vehicle fuel sales in the RC-2 and R-1 zoning districts.”4 (Suppl. R., Ex. A-2 at 2.)
C. Board Proceedings
Over the course of the next year, 11 public hearings were held, at which
Applicant, the Borough, and several nearby residents who were granted party status
participated. (Board Decision at 1-2.) Eight witnesses testified for Applicant,
including: representatives of Applicant; a real estate project manager for Wawa; and
experts in landscape architecture and zoning and land development, community
planning and zoning, traffic engineering, planning and design, professional land
surveying, and hydrogeology, remediation, and storm water management. The
Borough presented three witnesses: an expert in geology and environmental
planning; an expert in land planning and zoning; and its own zoning officer.
Based upon the evidence presented, the Board issued a two-page Decision and
Order on August 29, 2018, denying all of the requested relief. On September 18,
2018, the Board issued a 55-page Decision and Order setting forth 297 findings of
fact, 9 conclusions of law, and its reasoning behind the Decision. In making its
3
Because the sole issue before the Court is whether common pleas erred in concluding the
Ordinance was de jure exclusionary, we do not address whether the Ordinance was de facto
exclusionary.
4
Applicant also sought in the amended application a variance related to landscaping.
4
determination, the Board credited the testimony of Borough’s witnesses and
discredited the testimony of Applicant’s witnesses. Relevant to the de jure
exclusion, the Board found as follows. “Fuel sales are not permitted as a principal
use in the RC-2” District; therefore, Applicant had to show the fuel sales are
secondary or subordinate to the Wawa. (FOF ¶¶ 210-11.) The Board did not credit
the testimony of Applicant’s witnesses that fuel sales are an accessory use to the
Wawa because transactions inside the Wawa outnumber transactions at the pumps
by a three-to-one ratio. (Id. ¶¶ 215-17, 225.) The Board explained that no supporting
data was provided to support this testimony, nor did Applicant explain if the figure
included individuals who purchased both fuel and food. (Id. ¶¶ 218-19.) The Board
also found that because the witness from Wawa refused to discuss sales figures, there
was no evidence of how sales inside the store compared to sales at the pumps. (Id.
¶¶ 220-21.) The Board further found that based upon the amount of projected fuel
sales, the Board did not consider the proposed sale of fuel a secondary, subordinate,
or accessory use, but the fuel sales were “a separate and distinct principal use.” (Id.
¶¶ 229-30, 232.) According to the Board, the Ordinance does not limit the number
of principal uses permitted per lot. (Id. ¶¶ 233, 240.) While motor vehicle fuel sales
are not permitted as a principal use in the RC-2 District, the Board found fuel sales
are permitted in the HB District, which allows for gasoline service stations. (Id.
¶¶ 234-35, 238.) Using a dictionary definition of “service station,” the Board found
the proposed sale of motor vehicle fuels fits within the definition and, thus, was
permitted. (Id. ¶¶ 237-38.)
Turning to the convenience store portion of the proposed project, the Board
found that food sales are a major component of a Wawa, citing the testimony of one
of Applicant’s witnesses that sale of food and beverages comprise more than 50%
5
of Wawa’s revenue and about Wawa’s planned expansion into online ordering and
delivery through Grub Hub, Wawa’s plan to hire supervisors and managers to
oversee its food and beverage operations, and Wawa’s emphasis on customization
of food orders. (Id. ¶¶ 257-61.) The Board also stated Wawa’s chief executive
officer (CEO) was quoted in an article as describing Wawa’s growth “from a
traditional convenience store” into “a hybrid convenience store/to-go restaurant” and
that Wawa’s website advertises food and beverages and promotes mobile ordering
of food. (Id. ¶¶ 255, 280-81.)
The Board also summarized the testimony of the Borough’s zoning expert,
whom the Board found credible. The Borough’s zoning expert testified that Wawas
generally feature a large kitchen in the center of the back wall for preparing foods.
(Id. ¶ 275.) According to the Borough’s zoning expert, only four feet of the store is
dedicated to nonpackaged or prepared foods and another three or four feet is devoted
to “motor oil, antifreeze, and the like.” (Id.) The Borough’s zoning expert opined
that convenience stores sell necessities for daily living, such as paper products,
condiments, pet supplies, etc., and Wawa does not sell that. (Id. ¶¶ 275, 278.) In
his opinion, people go to convenience stores when they do not want to go to a
supermarket. (Id. ¶ 279.) The opinion of the Borough’s zoning expert was that the
proposed Wawa was “a restaurant selling packaged and prepared take-out food.”
(Id. ¶ 282.)
The Board found that restaurants were permitted in the RC-2 District provided
there is indoor seating, but drive-in or drive-through restaurants were not permitted
in the RC-2 District. (Id. ¶¶ 262, 264.) According to the Board, drive-in or drive-
through restaurants are permitted in the HB District and indoor seating is not
required. (Id. ¶¶ 263-64.) The Board noted that the terms “restaurant,” “drive-in
6
restaurant,” and “drive-thr[ough] restaurant” are not defined by the Ordinance, so it
looked to the dictionary for guidance in defining “restaurant” as “a business
establishment where meals or refreshments may be purchased.” (Id. ¶¶ 265-66
(quoting Merriam-Webster’s Dictionary, Suppl. R. Ex. B-8).) The Borough’s
zoning expert testified that a take-out restaurant would be of the same general
character as a drive-in or drive-through restaurant and, therefore, would be permitted
in the HB District as a special exception. (FOF ¶ 272.) The Borough’s zoning
officer concurred that the proposed use would be permitted in the HB District as
either “a service to the traveling public . . . or as a gasoline service station and drive-
in restaurant.” (Id. ¶ 285.)
Because the proposed uses were permitted in the HB District, the Board found
that Applicant failed to satisfy its burden of demonstrating the Ordinance was de jure
exclusionary. (Id. ¶ 287.) In further support of this finding, the Board found other
similar uses exist within the Borough. For instance, in 1982, the Board permitted a
convenience store, specifically a 7-Eleven, by special exception in the HB District.
(Id. ¶¶ 243-44.) The approval provided the applicant would not sell fuel, but it is
unknown whether the convenience store even requested permission to sell fuel or
whether it agreed to not do so. (Id. ¶ 248; Suppl. R. Ex. A-3, Tab 17.) In 1984,
Mobil Oil Company obtained variances for relief from floor area and sign
requirements for its establishment in the HB District, which is now the site of Lukoil.
(FOF ¶¶ 249-50.) One of the findings of fact in that decision stated the applicant
wanted to continue the existing lawful nonconforming snack shop use at the new
gasoline service station. (Id. ¶ 251; Suppl. R. Ex. A-3, Tab 18.) Finally, in 1985,
Exxon obtained variances related to signs and to erect a canopy and install a new
island for fuel pumps within a setback. (FOF ¶ 253; Suppl. R. Ex. A-3, Tab 19.)
7
According to one of Applicant’s witnesses, the property has a small snack shop, but
it is unknown how it was approved. (FOF ¶ 254.)
Based upon the above findings, the Board reasoned that Applicant’s proposed
uses are permitted in the HB District, and therefore, the Ordinance was not de jure
exclusionary. The Board likened the proposed fuel sales to a gasoline service station
or gasoline filling station, which are permitted in the HB District. (Board Decision
at 38-39.) Further, while Applicant characterized the Wawa as a retail store, the
Board determined it was “more accurately, a type of restaurant.” (Id. at 37.)
Specifically, the Board determined that “Wawas are take-out restaurants because
they feature a large kitchen in the center where customized food is prepared” and
because “[t]hey sell packaged and prepared take-out food.” (Id. at 39.) The Board
reasoned that the proposed Wawa was a take-out restaurant that was of the same
general character as a drive-in or drive-through restaurant, and that, because drive-
in and drive-through restaurants, and uses that are of the same general character
thereof, are permitted in the HB District, the proposed use was also permitted in the
HB District. (Id.) To the extent Applicant’s zoning expert testified a Wawa is not a
restaurant since it lacks indoor seating, the Board noted the Ordinance does not
require indoor seating to be considered a restaurant. (Id. at 39-40.) The term
“restaurant” is undefined, the Board explained, and the only place indoor seating is
mentioned is in reference to restaurants located within the RC-2 Retail Commercial
District, which does not apply to drive-in or drive-through restaurants permitted in
the HB District. (Id. at 40-41.) The Board acknowledged that there are definitions
of restaurant that require seating, but others, such as the one it relied upon, do not.
(Id. at 40.) Because the term was undefined, the Board stated it was within its
authority to consult a dictionary for guidance. (Id.) After recounting general
8
principles of statutory construction related to zoning ordinances and the declaration
of legislative intent for the HB District, the Board stated that “Applicant’s proposed
use is clearly a highway[-]oriented commercial use . . . and fits within the permitted
use of a ‘service to the traveling public.’” (Id. at 41-42.) In conclusion, the Board
stated that “[s]ince [Applicant]’s two primary uses may be developed, as proposed,
on a single property within the HB District, [] Applicant’s de jure challenge must
fail.” (Id. at 42.)
D. Appeal to Common Pleas
Applicant appealed the Board’s Decision to common pleas, asserting, among
other things, that the Ordinance was unconstitutional because it excluded
Applicant’s proposed use from the Borough. Common pleas did not take additional
evidence.5 Upon consideration of the parties’ briefs and following oral argument,
common pleas issued its Order granting in part and denying in part Applicant’s
appeal. Common pleas granted the appeal to the extent Applicant asserted a
substantive challenge to the Ordinance on the basis of de jure exclusion. Common
pleas denied Applicant’s appeal to the extent it was challenging denial of the
variances. Common pleas did not address Applicant’s substantive challenge to the
Ordinance on the basis the Ordinance was de facto exclusionary.
The Borough filed a timely notice of appeal, and common pleas directed it to
file a statement of errors complained of on appeal pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b), Pa.R.A.P. 1925(b) (Statement). In its Statement, the
Borough “challenge[d] only that portion of the [] Order that determined that . . . [the]
5
Because common pleas took no additional evidence, our review is limited to determining
whether the Board “erred as a matter of law or abused its discretion.” Williams Holding Grp., LLC
v. Bd. of Supervisors of W. Hanover Twp., 101 A.3d 1202, 1211 n.8 (Pa. Cmwlth. 2014).
9
[O]rdinance is de jure exclusionary, and has unconstitutionally excluded a legitimate
land use.” (Statement at 1.) The Statement further provided that “[c]orrespondingly,
[the Borough was] challeng[ing] that App[licant] [wa]s entitled to site-specific relief
permitting App[licant] to develop a convenience store with fuel dispensing facilities
and parking on the [Subject P]roperty. . . .” (Id.)
In response to the Statement, common pleas issued an opinion explaining its
reasoning for its decision (Rule 1925(a) Opinion). In its Rule 1925(a) Opinion,
common pleas noted that gasoline fueling stations are not permitted in the zoning
districts where the Subject Property is located and are only permitted in the
HB District. (Rule 1925(a) Opinion (Op.) at 3.) Although the Ordinance permits
drive-in and drive-through restaurants in the HB District, common pleas rejected the
assertion that a Wawa convenience store was a drive-in or drive-through restaurant.
(Id. at 4.) In support of its conclusion, common pleas examined two dictionaries,
both of which defined drive-in and drive-through restaurants as ones that provide
restaurant service to customers without the need for the customer to leave one’s
vehicle. (Id.) Because there is no takeout window or employee attending to
customers remaining in their vehicles, common pleas stated the proposed “Wawa
convenience store” was not a drive-in or drive-through restaurant. (Id. at 4-5.)
Common pleas observed that the Ordinance also permits uses of the same
general character as the delineated uses. As a result, it examined whether the Wawa
was a take-out restaurant, as the Borough asserted. Again, common pleas considered
how two dictionaries define “restaurant” and concluded that “a restaurant where
take-out is available would be a restaurant where meals are prepared and may be
eaten on the premise[s], or may be taken and eaten elsewhere.” (Id. at 5.) Common
pleas concluded that “[t]he only similarity in the definition of a ‘drive-in’ or ‘drive-
10
thr[ough]’ restaurant and a ‘take-out’ restaurant is the fact that they are both
establishments where food is consumed,” and, thus, they are not of the same general
character. (Id.)
Assuming it did find a take-out restaurant was of the same general character
as a drive-in or drive-through restaurant, common pleas concluded a Wawa
convenience store nonetheless would not fall within the definition of a restaurant.
(Id. at 5-6.) Common pleas stated that the ability to purchase and consume food on
site was significant to both definitions of restaurant it examined and the proposed
Wawa lacks seating or a dining area. (Id. at 6.) Therefore, common pleas found that
the proposed use did not fit the “restaurant” definition. (Id.)
Having concluded a convenience store with a gasoline fueling station was not
permitted in the HB District, common pleas next examined whether the proposed
use fell within another specifically permitted. Common pleas agreed with Applicant
that a convenience store was allowed with an accessory use in the RC-2 District but
only if the accessory use is located on the second floor of a structure. (Id. at 6.)
Because a gasoline fueling station cannot be located on the second floor, common
pleas concluded the Ordinance “does not provide for a district that permits both a
gasoline fueling station and a convenience store.” (Id.)
Next, common pleas considered whether the Borough met its burden of
showing that the exclusion of a specific legitimate land use was “substantially related
to the promotion of public health, safety, and welfare.” (Id. (quoting Wimer Realty,
LLC v. Township of Wilmington, 206 A.3d 627, 641 (Pa. Cmwlth. 2019)).) Common
pleas determined it could not “find a harmful result or consequence that would ensue
from building a gasoline fueling station next to a convenience store,” and, as a result,
the Borough’s Ordinance was de jure exclusionary. (Id.) Consequently, common
11
pleas stated its award of site-specific relief was appropriate under precedent. (Id. at
7.)
II. PARTIES’ ARGUMENTS
A. The Borough
On appeal, the Borough argues its Ordinance is not de jure exclusionary
because the proposed Wawa project fits the same general character as other uses
permitted in the HB District. Specifically, the Borough claims the proposed plan is
essentially a gasoline filling station and restaurant, which are permitted within the
Borough. The Borough argues that Applicant must overcome the presumption of
the Ordinance’s validity by showing a total exclusion, which Applicant has not done.
The Borough acknowledges that there is no explicit provision allowing for “a retail
store with motor vehicle fuel sales,” but argues the proposed use is not a “retail store”
as Applicant characterizes it, but is more akin to a type of restaurant with a gasoline
filling station. The Borough argues the proposed fuel sales are encompassed by
either a gasoline filling station or a gasoline service station, which are permitted in
the HB District. As for the Wawa’s non-fuel sales use, the Borough asserts this
proposed use is analogous to a take-out restaurant, which is of the same general
character as drive-in or drive-through restaurants that are permitted in the HB
District. According to the Borough, the Wawa may sell other items but these other
items are incidental to food sales. The Borough argues common pleas erred in
concluding that indoor seating was required for a use to be considered a restaurant
under the Ordinance. The reference to indoor seating in the Ordinance refers only
to restaurants located within the RC-2 District, and does not apply to restaurants in
other zoning districts. The Borough argues that the Ordinance does not limit the
12
number of principal uses per property, and the two proposed uses here – a take-out
restaurant and gasoline fueling station – qualify as services to the traveling public
and are permitted as special exceptions in the HB District. Therefore, the Borough
asserts the Ordinance is not de jure exclusionary, and, accordingly, the Borough asks
the Court to reverse common pleas’ Order.6
B. Applicant
Applicant responds that the Ordinance excludes retail convenience stores that
also sell fuel, such as the one proposed, from all zoning districts. Applicant asserts
that while fuel sales are permitted in the HB District, that district does not permit the
retail sale of convenience items. It further argues that the proposed Wawa is a
convenience store, not a take-out restaurant, as the Board found and the Borough
asserts. Applicant argues the Borough’s classification of the Wawa as a restaurant
“is a transparent and convoluted attempt by the Borough to find any way, regardless
of how preposterous, for the proposed use to be permitted within the [] HB District.”
(Applicant’s Brief (Br.) at 9.) According to Applicant, “[n]o reasonable person
would consider the proposed retail convenience store to be a take-out restaurant.”
(Id.) Even if it was a take-out restaurant, as found, Applicant argues a take-out
restaurant is not of the same general character as a drive-in or drive-through
restaurant, both of which are permitted in the HB District. Applicant further argues
that while the Ordinance provides for sale of certain items in the HB District, such
as the sale of vehicles, boats, trailers, heavy equipment or farm implements, building
supplies, monuments, and plants, none of these are of the same general character as
the items usually sold at a convenience store. Because the Ordinance totally
6
The Board joins in the Borough’s brief.
13
excludes retail convenience stores with fuel sales from anywhere within the
Borough, Applicant requests the Court to affirm common pleas’ Order.
III. DISCUSSION
A. General Legal Principles
Generally, a municipality’s zoning ordinance is entitled to a presumption that
it is constitutionally valid. Interstate Outdoor Advert., L.P. v. Zoning Hearing Bd.
of Warrington Twp., 39 A.3d 1019, 1024 (Pa. Cmwlth. 2012). To overcome this
presumption, the party challenging the ordinance bears a heavy burden to show the
ordinance completely or effectively excludes an otherwise legitimate use. Id. There
are two ways a challenger can do this: (1) by showing the ordinance is de jure
exclusionary; or (2) by showing the ordinance is de facto exclusionary. A de jure
exclusion exists if the ordinance, on its face, totally excludes a use. Township of
Exeter v. Zoning Hearing Bd. of Exeter Twp., 962 A.2d 653, 659 (Pa. 2009). In
contrast, a de facto exclusion exists if, when applied, the ordinance effectively acts
to prohibit a use that is otherwise permitted. Id.
The mere fact that an ordinance does not specifically address a use does not
necessarily mean the ordinance is exclusionary. Caln Nether Co., L.P. v. Bd. of
Supervisors of Thornbury Twp., 840 A.2d 484, 491 (Pa. Cmwlth. 2004). Rather, we
must consider “whether a reasonable interpretation of the ordinance reveals another
zoning classification in which the particular use may be allowed.” Ficco v. Bd. of
Supervisors of Hempfield Twp., 677 A.2d 897, 900 (Pa. Cmwlth. 1996). “When a
proposed use can be considered within another zoning classification or, where the
zoning ordinance is broad enough to encompass the proposed use, there is no de jure
exclusion.” Caln Nether, 840 A.2d at 491. In addition, if an ordinance conditionally
14
permits a use as a special exception, it is not de jure exclusionary. Kratzer v. Bd. of
Supervisors of Fermanagh Twp., Juniata Cty., 611 A.2d 809, 814 (Pa. Cmwlth.
1992). “The issue of whether a proposed use falls within a given category of
permitted use in a zoning ordinance is a question of law, subject to this Court’s
review.” Caln Nether, 840 A.2d at 491.
In examining whether a proposed use is covered by an ordinance, “we are
mindful that ordinances are to be construed expansively, affording the landowner
the broadest possible use and enjoyment of his or her land.” Atiyeh v. Bd. of
Comm’rs of the Twp. of Bethlehem, 41 A.3d 232, 236 (Pa. Cmwlth. 2012). “In
addition, in accordance with the dictates of statutory construction,[] we are required
to interpret an ordinance, if possible, in a manner which will not violate the federal
or state constitutions.” Kratzer, 611 A.2d at 813 (footnote omitted). If a term is
undefined, consistent with the rules of statutory construction, we should give words
their plain meaning and “may consult definitions in statutes, regulations[,] or
dictionaries for” guidance. Caln Nether, 840 A.2d at 491. A municipality’s
interpretation of its ordinance is entitled to substantial deference. Montgomery
Crossing Assocs. v. Township of Lower Gwynedd, 758 A.2d 285, 288 (Pa. Cmwlth.
2000). “Where an ordinance is reasonably susceptible of two conflicting
constructions, a court should adopt that interpretation which would uphold the
validity of the ordinance.” Ficco, 677 A.2d at 900-01.
Whether an ordinance is exclusionary is a question of law, reviewable by the
Court. Wimer Realty, 206 A.3d at 640. Courts examine whether an ordinance is
exclusionary using a two-step analysis:
[F]irst[, we] consider whether the challenging party has overcome
the presumed constitutionality of an ordinance by showing it
excludes [the proposed use] as a use. If we determine the challenger
15
has done so, we then consider whether the municipality has salvaged
the ordinance by presenting evidence to show that the exclusionary
regulation bears a substantial relationship to the public health,
safety, morality, or welfare.
Township of Exeter, 962 A.2d at 661. Only if a challenger rebuts the presumption
that the ordinance is valid does the burden shift to the municipality to demonstrate
that the exclusion promotes the public health, safety, and welfare. Atiyeh, 41 A.3d
at 236.
With the above principles in mind, we turn to the Ordinance at issue here.
B. The Borough’s Ordinance
The Borough enacted its Ordinance in 1985, and parts thereof have since been
amended. The Borough is zoned into various districts that have different purposes
and permit different uses. Relevant here are the R-1 Residential, RC-2 Retail
Commercial,7 and HB Highway Business Districts. As expected, the R-1 District
permits single-family detached dwellings.8 Ordinance § 27-602. Certain other uses,
not applicable here, are permitted by special exception. Id. Section 27-1202 of the
Ordinance governs the RC-2 District and provides in pertinent part:
1. In the RC-2 [] District, a building or structure may be erected,
altered, or used, and a lot or premises may be used or occupied, for any
of the following uses and no other:
A. Retail sale of dry goods, general merchandise, clothing, food,
flowers, beverages, pharmaceuticals, household supplies or
7
The Subject Property is located in the R-1 and RC-2 Districts. The parcels located in the
RC-2 District were previously zoned R-4 Residential District. On May 23, 2016, the Borough
enacted Ordinance No. 1034 which amended the Borough’s official zoning map and rezoned those
parcels to the RC-2 District. (Suppl. R. Ex. A-3, Tab 10.)
8
The Ordinance also permits agriculture in the R-1 District as of right. Ordinance § 27-
602.
16
furnishings; sale or repair of jewelry, watches, clocks, optical
goods, or musical, professional or scientific instruments.
....
C. Restaurant, tearoom, cafe, taproom, or similar establishment
serving food and/or beverage, and having facilities for the
indoor seating of their patrons, but without drive-in or drive-
through service; nor shall drive-in or drive-through facilities
be permitted as an accessory use under Subsection 1[.]M.
....
Ordinance § 27-1202. Subsection 1.M provides “[a]ccessory uses as authorized by
the general regulations of this chapter, including dwelling units, shall be located at
or above the second-story level and shall not be more than 50% of the total lot
area. . . .” Ordinance § 27-1202.1.M. According to the Ordinance, the legislative
intent of the RC-2 District is “to establish reasonable standards of performance and
promote the desirable benefits which retail commercial uses, professional and
business offices, and mid-rise multi-family development will have upon the
development and potential development of the Central Business District of the
Borough . . . .” Ordinance § 27-1201.
Part 13 of the Ordinance governs the HB District. Its declaration of legislative
intent states its purpose is “to establish reasonable standards of performance for the
development of highway oriented commercial uses in those locations which provide
for superior highway access that is a necessary prerequisite for such uses” and “to
provide standards which will ensure that such higher density traffic generating
commercial uses will not have a negative impact on any abutting residential
neighborhoods in the Borough.” Ordinance § 27-1301. The Ordinance provides:
17
1. In an HB Highway Business District, a building or combination of
buildings may be erected, altered, or used, and a lot or premises may be
used or occupied for any of the following uses and no other:
A. Services to the Traveling Public. Gasoline service stations,
drive-in and drive-through restaurants, hotels, motels;
provided, that no entrance or exit shall be located within 250
feet of a property used for a school, church, hospital,
playfield, playground, park, recreation area, or library.
B. Commercial Recreation. Bowling alleys, skating rinks,
miniature golf course, theaters.
C. Automotive and Allied Sales and Services. Service stations,
repair shops, used car and truck sales, automotive parts and
accessories, new car and truck sales, boat and marine sales,
trailer sales, heavy equipment and/or farm implement sales,
bicycle and motorcycle shops.
D. Miscellaneous Sales. Heating and plumbing shops, building
material sales (including lumberyard), monument sales,
nurseries, greenhouses, and garden stores.
E. Any use of the same general character as any of the above
permitted uses, when authorized as a special exception by the
. . . Board; provided, that such use shall be permitted subject
to reasonable restrictions as the . . . Board may determine;
and, further provided, that no trade or business shall be
permitted which is either hazardous or noxious.
F. Trailer camp and motor home camp.
Ordinance § 27-1302.
The Ordinance does not define the term “gasoline service station,” but does
define “gasoline filling station” as
[a]ny area of land, including structures thereon, or any building or part
thereof, that is used for the sale of gasoline or other motor vehicle fuel
or accessories, and which may or may not include facilities for
lubricating, washing or other[]wise servicing motor vehicles but which
shall not include painting or body and fender repairs.
18
Ordinance § 27-202. The Ordinance does not define “restaurant,” “drive-in
restaurant,” or “drive-through restaurant.”
C. Analysis
Because common pleas accepted no new evidence, we are reviewing the
Board’s decision for an error of law or an abuse of discretion. Williams Holding
Grp., LLC v. Bd. of Supervisors of W. Hanover Twp., 101 A.3d 1202, 1211 n.8 (Pa.
Cmwlth. 2014). An abuse of discretion occurs if the Board’s findings are not
supported by substantial evidence. Id. Therefore, we begin with the Board’s
interpretation of the Ordinance, which common pleas concluded was in error.
The Board considered Applicant’s proposal as two principal uses: a gasoline
filling station and a restaurant. Preliminarily, it is important to note that the Borough
does not argue that because each proposed use is permitted as a standalone use, its
Ordinance is not exclusionary. Rather, the Borough contends that the two uses
together are provided for by its Ordinance, and therefore, the Ordinance is not
de jure exclusionary. Specifically, the Borough contends that a take-out restaurant
that also dispenses fuel is permitted in the HB District. Section 27-1302.1.A of the
Ordinance permits “[g]asoline service stations” in the HB District. Although the
term “gasoline service stations” is not defined by the Ordinance, the term “gasoline
filling station” is defined and includes structures that sell gasoline. Ordinance § 27-
202. Applicant plans to sell gasoline. Therefore, the Board’s interpretation of the
Ordinance as encompassing the fuel pumps proposed as part of this project is
reasonable. Ficco, 677 A.2d at 900.
We must then address whether the Board’s separate characterization of the
Wawa building, and the services to be provided therein as a take-out restaurant, is
19
reasonable. Because the Ordinance does not define “restaurant” or “take-out
restaurant,” we must first consider whether the Board’s interpretation of the terms is
reasonable before considering whether the proposed use itself fits that interpretation.
In interpreting the term “restaurant,” the Board relied upon Merriam-Webster’s
Dictionary, which defines “restaurant” as “a business establishment where meals or
refreshments may be purchased.” (Board Decision at 40.) The Board did not
specifically examine the definition of take-out restaurant, but reasoned a Wawa
would be a take-out restaurant because it features a large kitchen in the center where
food is made to the customer’s specifications and taken elsewhere to be consumed.
(Id. at 39.) The Board also found that packaged and prepared food is sold there as
well. (Id.) These products are likewise purchased to go. The Board acknowledged
other items were sold at the Wawa, but found those items were limited. (Id.) In
addition, the Board considered that food and beverage sales comprise more than 50%
of Wawa’s revenues, Wawa employs a manager and supervisor to oversee food and
beverages at each store, and Wawa’s website emphasizes the importance of Wawa’s
food service. (Id.) In addition, the Board found that Wawa’s CEO considers Wawa
“a hybrid convenience store/restaurant to go.” (Id.)
Given the deference provided to a municipality’s interpretation of its
ordinance, Montgomery Crossing, 758 A.2d at 288, and that the Board, in
interpreting the Ordinance, is permitted to look at dictionary definitions for
guidance, Caln Nether, 840 A.2d at 491, we cannot conclude the Board erred in
interpreting the term “restaurant” or “take-out restaurant” as it did. Although
Applicant advocated for a different definition of “restaurant” that requires seating,
and common pleas found that indoor seating was a requirement for all restaurants,
the Board was not obligated to accept these interpretations. Moreover, common
20
pleas’ imposition of indoor seating as a condition for all restaurants was in error.
The only reference to indoor seating in the Ordinance is in Section 27-1202, which
permits restaurants in the RC-2 District. As mentioned above, “restaurant” is not
universally defined by the Ordinance, and Section 27-1202 does not apply in the HB
District. Therefore, that a restaurant in the RC-2 District must have seating does not
mean that every other district also requires restaurants to have indoor seating. In
short, the Board’s interpretation of the terms “restaurant” and “take-out restaurant,”
although broad, is reasonable.
We must now decide whether it was reasonable for the Board to conclude that
the proposed Wawa is a take-out restaurant. Whether a proposed use falls within a
given category of permitted use in a zoning ordinance is a question of law. Caln
Nether, 840 A.2d at 491. Although a zoning board’s interpretation is entitled to
deference, its interpretation must still be reasonable. Ficco, 677 A.2d at 900. We
have examined the reasonableness of a municipality’s or zoning board’s
interpretation in substantive validity challenges before. In Caln Nether, for instance,
the applicant was proposing a new and used car dealership, which the municipality
determined would be permitted as a retail store, a term undefined by the ordinance.
840 A.2d at 491. The trial court agreed, concluding “that the principal function of a
car dealership is the sale of automobiles at retail.” Id. at 492 (citation omitted). We
affirmed stating “that a car dealership falls within the plain meaning of the term
‘retail store.’” Id. Likewise, in Kratzer, we determined that a municipality’s
interpretation that the undefined term “multi-family buildings” included the two-
family detached dwelling units that were proposed. 611 A.2d at 813. Therefore, the
21
ordinance was not exclusionary. Id. at 814.9 We reached a similar conclusion in
D.C. Guelich Explosives Company v. Zoning Hearing Board of Mifflin Township,
Columbia County, 523 A.2d 1208 (Pa. Cmwlth. 1987), where the applicant sought
zoning relief in the form of a variance or special exception and simultaneously
challenged the validity of the ordinance so it could construct a facility to store and
distribute explosives. The zoning hearing board denied relief, and the trial court
reversed. We subsequently reversed the trial court, noting that “both warehousing
and storage are among the enumerated permitted uses in the Industrial Districts,”
and the proposed use was a warehouse or storage facility. Id. at 1210.
While in those cases we found the interpretations of the ordinances were
reasonable, we reached the opposite result in Cracas v. Board of Supervisors of West
Pikeland Township, where we held that “[e]ven the most strained interpretation of”
the ordinance would not encompass the proposed uses, and, as a result, the ordinance
was facially exclusionary of same. 492 A.2d 798, 801 (Pa. Cmwlth. 1985). There,
a group of landowners of properties located in the Conservation-Residence District
originally sought a curative amendment that would allow a variety of commercial
activities to be conducted from their residences, which was denied. The landowners
then challenged the ordinance on the basis it excluded a number of commercial uses
standing alone, without regard to any residential use, specifically “[l]andscaping;
[s]ale and refinishing of antiques; [g]reen [h]ouses; [m]asonry; [c]arpentry;
[r]emodeling; [p]lumbing; [e]lectrical (including motor and electronic repair);
[h]ouse [c]leaning and [p]ainting businesses; [w]holesale establishments for the sale
and distribution of supplies and general merchandise,” including “customary storage
9
Caln Nether and Kratzer all involved appeals of denials of curative amendments sought
from the municipality’s governing board, not the denial of a substantive challenge by a zoning
hearing board. However, the analysis for de jure exclusions is the same.
22
and workyards incidental thereto.” Id. at 800. The trial court concluded the
proposed uses were “offices of painting, plumbing, masonry[,] and general
contractors,” which were permitted by the ordinance. Id. We disagreed. This Court
examined the ordinance and found only two districts – the Historical Business
District and the Business District – were relevant. The Historical Business District
allowed residences and accessory uses, retail stores not exceeding 1,000 square feet,
professional offices or studios, and “hotel[s], inn[s], and restaurant[s], theater[s],
auditorium[s], assembly hall[s], librar[ies,] or community recreation center[s].” Id.
at 800-01. The Business District permitted a “[r]etail service shop, or custom shop,
such as: bakery, candy, ice cream or similar shop, custom tailoring or millinery
shop; clock, watch, or jewelry shop; radio, television[,] or household appliance
shop” or a “[p]ersonal service shop such as barber shop, beautician, dry cleaning
establishment.” Id. at 801. Storage was expressly prohibited. Accordingly, we
determined the landowners’ proposed uses were not permitted. The Court held
“[e]ven the most strained interpretation of those provisions would not justify the
conclusion that . . . those districts allow[] any of the business uses sought by the
landowners’ relief requests.” Id. Further because the township supervisors relied
entirely upon the proposed uses being permitted in the township, they did not present
any evidence that the exclusion was necessary for the public health, safety, or
welfare. Id. Thus, we held the ordinance was exclusionary and the township
supervisors did not carry their burden justifying the exclusion.
Here, if the Board’s conclusion that Wawa is a take-out restaurant is based
solely on Wawa’s sale of prepared food, we would agree its classification of the
proposed project as a take-out restaurant would be reasonable. However, the
Board’s categorization of the Wawa as a take-out restaurant disregards the other
23
items the proposed Wawa would sell. Thus, the Board’s conclusion that the
proposed Wawa is a take-out restaurant is more akin to the “strained interpretation”
of the ordinance in Cracas, 492 A.2d at 801, than the plain meaning interpretations
in Caln Nether, Kratzer, or D.C. Guelich. While the Board found there was no
“relevant or substantive testimony as to what the proposed Wawa would sell as to
non-food items,” (FOF ¶ 276), the Board credited the Borough’s witness who
testified as to the other types of items sold at the existing Wawa in the Borough,10
(id. ¶¶ 277, 289). The Borough’s zoning expert testified that a four-foot section of
“non-packaged or prepared food[]”is sold at the existing Wawa in the Borough. (Id.
¶ 277.) He also testified that there is usually an additional three- or four-foot section
where motor oil, antifreeze, or the like is sold. (Id.) Applying the Board’s own
interpretation of “restaurant” as “a business establishment where meals or
refreshments may be purchased,” (FOF ¶ 266 (emphasis added)), and “draw[ing]
upon common sense and basic human experience to construe [the] term[],” Kohl v.
New Sewickley Township Zoning Hearing Board, 108 A.3d 961, 969 (Pa. Cmwlth.
2015), one cannot conclude that the sale of these items are the type generally
associated with a restaurant. Although small in comparison to the projected food
sales, the sale of these other items adds a retail component the Board did not
consider. We agree with Applicant that when the sale of these other items is taken
into consideration, “[n]o reasonable person would consider the proposed [Wawa] to
be a take-out restaurant.” (Applicant’s Br. at 9.)
The Board purported to rely upon a plain language definition of restaurant to
conclude the proposed Wawa was a take-out restaurant but without regard to the
other types of items the Wawa would sell. Therefore, “[e]ven the most strained
10
The existing Wawa is considered a smaller legacy store and does not sell fuel. If the
new Wawa is constructed, the existing Wawa would be closed.
24
interpretation of [the Ordinance] would not justify th[is] conclusion.” Cracas, 492
A.2d at 801. Thus, we must find the Board erred in classifying the proposed Wawa
as a take-out restaurant because it did not consider the retail sales component of other
items besides prepared food.
We must therefore determine whether there is any district in which retail sales
of food and non-food items is permitted, in addition to fuel sales. The Board
suggests other sites exist within the Borough where retail items and fuel sales are
permitted to be sold. For support, they cite to zoning approvals from the early 1980s.
(FOF ¶¶ 242-54.) To the extent such uses exist, we do not find this argument
persuasive, as the Ordinance at issue was not enacted until 1985. There is no
evidence as to what uses any prior ordinance permitted. Therefore, these sites may
operate as preexisting conforming uses.
Examining the Ordinance, the only other feasible location is the RC-2 District.
Pursuant to Section 27-1202, the retail sale of general merchandise and food is
permitted in the RC-2 District. However, it does not provide for the sale of fuel,
unless such a use would be considered an accessory use, which the Board determined
was not the case. Even if the sale of fuel was considered an accessory use, under the
Ordinance, Applicant still could not locate the proposed Wawa in the RC-2 District
because, pursuant to subsection 1.M, “[a]ccessory uses as authorized by the general
regulations of this chapter, including dwelling units, shall be located at or above the
second-story level and shall not be more than 50% of the total lot area. . . .”
Ordinance § 27-1202.1.M. Because it is undisputed that Applicant cannot sell fuel
at or above the second-story level, the proposed Wawa is also excluded from the
RC-2 District. Accordingly, there is no district within which Applicant can locate
its proposed use.
25
Having concluded Applicant met its burden of showing the Ordinance is
exclusionary, we must consider whether the Borough “has salvaged the [O]rdinance
by presenting evidence to show that the exclusionary regulation bears a substantial
relationship to the public health, safety, morality, or welfare.” Township of Exeter,
962 A.2d at 661. Similar to the municipality in Cracas, the Borough presented no
such evidence. Cracas, 492 A.2d at 801. Accordingly, we must conclude it did not
meet its burden.
IV. CONCLUSION
Based upon the foregoing, we hold the Ordinance does not provide for a
location within the Borough for the proposed Wawa with fuel sales. Accordingly,
we affirm common pleas’ Order.
_____________________________________
RENÉE COHN JUBELIRER, Judge
26
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Hatboro Borough, :
Appellant :
:
v. : No. 703 C.D. 2019
:
Buckingham Retail Properties, LLC :
ORDER
NOW, November 9, 2020, the Order of the Court of Common Pleas of
Montgomery County, dated May 2, 2019, is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge