Talks resume on planned Upper Gwynedd Wawa

UPPER GWYNEDD – The legal battle over plans for a proposed Wawa fuel station and convenience store continued Thursday night and looks likely to remain ongoing for at least two more months.

The developer behind the Wawa began making their case to the township’s zoning hearing board Thursday night that the fuel station and convenience store should both be allowed, while the township and Merck will continue their arguments over the next two months.

“The use is the issue. We are not arguing that the township has not provided enough fueling locations. We’re arguing the use has not been provided for,” said land planning consultant Charlie Schmehl.

Plans for a Wawa store and station were discussed for much of 2016 into 2017, with the developer making the case at length to combine the sites of the former Sumney Tavern and current Country Bride and Gent store into a larger lot, with driveway access off both Sumneytown and West Point Pikes.

In July 2017, the commissioners voted against a version of plans for that Wawa project, citing concerns about traffic and safety risks created by the driveway entrances, and a revised version of the plans was voted down in November 2017 due to similar concerns.

In February 2018, residents near the site began receiving fliers from developer Bruce Goodman directing them to a new website “Bring Wawa to Upper Gwynedd Township” and pushing plans for the store. The commissioners then responded with a statement saying the township’s consultants fails to comply with numerous local codes cited in the denial letters.

More recently, the township’s solicitor said in mid-July 2019 that the Wawa project is still the subject of a court fight and would need more testimony taken at the zoning hearing board level. That testimony continued at length Wednesday, with Schmehl and traffic engineer Joe Barron testifying on behalf of Wawa, and attorneys Jim Garrity and David Brooman opposing on behalf of the township and Merck respectively.

Testimony from the two witnesses took nearly three hours Thursday night, whit occasional interruptions for lawyers to confer or copies to be made, as the Wawa team argued the township’s current codes should, but do not, allow the convenience store and fuel sales as a single use.

“If the township’s position is right, and the only way that you can develop a convenience store with motor vehicle fuel sales is with a special exception for a ‘service station’ use – in other words, having two principal uses – then the ordinance, in our opinion, is exclusionary,” said VanLuvanee.

Garrity argued on behalf of the township that the gasoline sales and convenience store are both allowed in the township, and both could be allowed under certain conditions: “What we have said is, either way, it requires a special exception. That is what didn’t happen here, and that’s why we took an appeal, and why we have so many appeals out there.”

“The applicant has the burden of proving the ordinance totally excludes – totally excludes – the proposed use. It clearly doesn’t,” he said.

Testimony largely focused on the two sides’ varying interpretations of current township codes, whether the zoning board and commissioners acted properly in 2017 by voting against approving the plans, and whether the code books should be updated to specifically allow the fuel station and convenience store as a single use.

Barron said, in his opinion, the site is appropriate for the plan as shown with two driveways entering off of Sumneytown Pike and one more off of West Point Pike. Brooman said Merck’s position is that a recent ruling in Commonwealth Court that would prohibit the use of both Sumneytown Pike would make the plan untenable, since all traffic would then leave on West Point Pike and likely try to turn around in an adjacent Merck driveway.

“If the commonwealth court has any say, they can’t egress at all on Sumneytown Pike. The board of commissioners held they can’t egress onto West Point Pike, left, during the A.M. and P.M. peak hours,” Brooman said.

“So every single car that goes into that Wawa, for four hours a day, the busiest time of the day, are going to have to go out right onto West Point Pike, with no place to go,” he said.

VanLuvanee asked Schmehl if, in his 35-plus years of planning experience, he felt fuel sales are customarily incidental to convenience stores, and Schmehl said in his opinion, they were. Both referred to testimony from a Wawa consultant in 2017 providing facts and figures on the percentages of sales for fuel versus the stores, and Garrity said that testimony is the subject of a separate legal challenge from the township.

“We requested the publication (that consultant) relied upon, and Wawa immediately filed a motion for a protective order, which has not been resolved yet. So we have a situation where he is quoting from, and relying upon, a Wawa publication that he would not provide us,” Garrity said.

Due to the lengthy testimony, the zoning hearing board agreed to continue the arguments at future special meetings. Based on the availability of the attorneys and consultants, the board announced those two future meetings are currently scheduled for Sept. 10 and Oct. 8, both at 7 p.m. at the township administration biding, 1 Parkside Place.