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

Report by BCPC to Jointure on 2020 Census Population & Housing Data

At the October 7, 2021, Newtown Area Joint Zoning Council (JZC) meeting, Lisa Wolff, Senior Planner, Bucks County Planning Commission (BCPC), presented an analysis of the recently released 2020 U.S. Census Redistricting Data Summary Files related to the "Jointure" townships (Newtown, Wrightstown, and Upper Makefield).

Her analysis, which will be incorporated into the updated Newtown Area Comprehensive Plan, covers population trends from 1950 through 2020, population change from 2000 to 2020, population by race, and housing data.

Jointure Population Trend

Ms. Wolff first reviewed the growth in population of the Jointure townships from 1950 through 2020. See the table below and listen to the audio snippet where Ms. Wolff highlights the important trends.

In the following audio snippet from the JZC meeting, Ms. Wolff talks about the trend in Jointure population from 1950 though 2020:

Population Change

It is clear that population growth is declining, especially between 2010 and 2020. Newtown, for example, saw a growth of only 3.1% during this period (see Table 2 below).

In the following audio snippet from the JZC meeting, Ms. Wolff reviews more details of Jointure population changes from 2000 to 2020:

Population By Race

The racial/ethnicity profile of all three Jointure townships show a shift to a more diverse population from 2000 to 2020. Newtown, for example, was 94% white in 2000 and 82% in 2020. The biggest change was in the “Asian Alone” category – an increase from 734 residents in 2000 to 2,201 in 2020. This category includes “Asian Indian,” which I am sure constitutes the majority of “Asian Only” residents in Newtown.

In the following audio snippet from the JZC meeting, Ms. Wolff reviews more details population by race:

Housing Data

The last piece of data in the report is “Housing Occupancy Status,” which is summarized in Table 3 of the report.

In the following audio snippet from the JZC meeting, Ms. Wolff summarizes the housing data:

Newtown saw a 28% increase in “vacant housing units” from 2010 to 2020 (389 vs 304). At the JZC meeting, it was not clear what was included in this category. The U.S. Census Bureau website provides the following definition:

“A housing unit is vacant if no one is living in it at the time of the interview, unless its occupants are only temporarily absent. In addition, a vacant unit may be one which is entirely occupied by persons who have a usual residence elsewhere. New units not yet occupied are classified as vacant housing units if construction has reached a point where all exterior windows and doors are installed and final usable floors are in place. Vacant units are excluded if they are exposed to the elements, that is, if the roof, walls, windows, or doors no longer protect the interior from the elements, or if there is positive evidence (such as a sign on the house or block) that the unit is to be demolished or is condemned. Also excluded are quarters being used entirely for nonresidential purposes, such as a store or an office, or quarters used for the storage of business supplies or inventory, machinery, or agricultural products. Vacant sleeping rooms in lodging houses, transient accommodations, barracks, and other quarters not defined as housing units are not included in the statistics in this report.”

Future Development

Ms. Wolff also reported the estimated number of acres of land suitable for future potential development in each municipality. For Newtown that number was just under 40 acres, for Upper Makefield it is a little more than 250 acres, and for Wrightstown it is a little more than 425 acres. These are just early estimates, but it is evident that Newtown may be reaching its limit for future development.

Additional Information

• The complete BCPC 2020 Census Data Report
• Newtown Township Land Use Trends 2005-2020
• Comprehensive Plan Resident Survey Results (Newtown)

Posted on 11 Oct 2021, 11:37 - Category: Development

Economic Development Committee Discusses Proposal for a LI/OLI Overlay District

I attended the in-person September 21, 2021, Newtown Economic Development Committee (EDC) meeting because I wanted to learn more about “Economic Development projects for 2022 budget” – which was an item on the agenda.

This was the first mention I have seen of the 2022 budget in ANY official agenda for a public meeting. Not even us supervisors know what projects will be in the proposed preliminary 2022 budget, which will not be presented to the Board of Supervisors (BOS) until October 18, 2021.

However, the EDC discussion actually focused on the Bucks County Planning Commission (BCPC) REVISED proposal for Planning Services to Develop an Overlay District to the LI and OLI Zoning Districts. For background, view the video: "Township Planner Presentation on Rezoning the OLI & LI Districts." Members did not have the revised proposal to review at this meeting.

The discussion focused on the process for approval of the proposal and how members of the EDC would be involved in the BCPC process if the proposal is approved by the BOS, which will vote to approve it or not on at the September 22, 2021, BOS meeting. They also discussed what an Overlay entails.

Overlay District Permits New Uses

Overlay Zoning is a regulatory tool that creates a special zoning district, placed over an existing base zone(s), which identifies special provisions in addition to those in the underlying base zone. The overlay district can share common boundaries with the base zone or cut across base zone boundaries. Regulations or incentives are attached to the overlay district to protect a specific resource or guide development within a special area.

Mary Donaldson - an EDC member - explained how an overlay to the LI and OLI zoning districts would allow for additional uses that are currently not permitted:

The EDC spent considerable time talking about possible new uses for the districts that the Overlay would allow. Restaurants, for example, were mentioned. You can find all the possible uses in a May 4, 2021 presentation before the Newtown Planning Commission by Township Planner Michele Fountain. You can also listen to that presentation.

Posted on 22 Sep 2021, 11:45 - Category: Development

Another Proposed Project on Newtown Bypass

Keeping the rural look of the Newtown Bypass has been a tradition in Newtown. It is a common belief among long-time Newtown area residents that the Newtown Bypass is supposed to remain an "undeveloped" greenway. For the most part, the Bypass is still somewhat preserved with trees and greenery along the route as can be seen in left side of the above photo. There are a couple of exceptions, such as Summit Square (located on the Middletown side of the road) and the NAC, to name just two of the most visible eyesores.

Preserving the “greenway” nature of the Bypass was threatened back in April 2017, when Supervisor Phil Calabro proposed that the township lease or sell two acres of Silver Lake Park, which is located on the Bypass, to Wawa (see Patch article). Although that idea never saw the light of day, a Super Wawa on the Bypass is still possible (read “Wawa is Back!”).

Will The Bypass Look Like Street Road or Route 1?

Many people fear that if Wawa is allowed to build on the Bypass with 16 fueling stations and multiple huge signs – including an electronic sign on the Bypass - it would open a “Pandora's box” for development on the Bypass and turn it into a Route 1 (right side of photo above). Fully 86% (n=288) of residents I surveyed who were against the Wawa agreed, and 78% (n=262) said it was not compatible with the historic, rural nature of Newtown. [Read “Residents Present Their Case For and Against a Super Wawa on the Bypass”]

Fast Forward to 2021: The Box Opens!

At the March 15, 2021, Newtown Board of Supervisors Work Session  representatives of Lotus Park Senior Living LLC, presented a "sketch plan" for a Senior Living facility to be located adjacent to the site of the proposed Wawa. The lot size of this parcel of land is only 4.83 acres! [See the map below.]

Guess what? The owners of this property - Innovative Hospitality Management – also own the property where the Super Wawa is likely to be built. When they saw an opportunity presented by the Wawa precedent, they proceeded to find a use for a plot of land that many experts consider unfit for development.

Like the convenience store/gas station use before the “curative amendment” was passed (see here), this use is not permitted in the OR (Office Research) district. To proceed with this project, the developer would need to get at least 11 zoning variances from the Zoning Hearing Board. [See CKS letter]

No decision was made at the BOS Work Session, but Supervisors had many questions and concerns. One question put forward by supervisor David Oxley had to do with the anticipated income by the township from such a facility. Recall that about 60% of Newtown’s tax revenue has consistently come from Earned Income Tax (EIT). The developer could not answer that question, but will do so if and when the application is officially submitted.

It should be noted that employment centers envisioned by the OR district could generate significant EIT revenue for the Township. Retail stores, such as Wawa, that pay a wage of $10 per hour to a minimal number of employees, do not provide any significant EIT income for the Township.

The Slippery Slope to “A Route 1” Bypass

Whether or not this proposed assisted living use application moves forward and is approved, there will be further pressure to rezone the OR district to allow other uses. The Newtown Economic Development Committee (EDC) already suggested changes to the zoning of the LI (Light Industrial) and Office Light Industrial (OLI) districts to “revitalize” the Business Commons area.

The EDC memo/plan was discussed at the February 16, 2021, BOS Work Session. Although the EDC also wanted to include the OR district in its plan, “the Supervisors agreed to discuss the memo only as it would apply to the LI and OLI zoning districts, focusing on the Business Commons only, at this time.” [Download the EDC Memo to BOS Re Zoning for Businesses.]

Local Area Residents Speak Out

“I am 60 years old,” said one Newtown neighbor on Nextdoor. “I grew up in Churchville and went to school in Newtown...Council Rock then George School. What has happened to Newtown is a travesty. I avoid it because my heart breaks every time I drive through it. It used to be a beautiful town surrounded by farms and trees. Now it is one big congested, ostentatious commercial center. Even the original Goodnoe’s and dairy farm are gone. You could not pay me to live there.”

See Nextdoor discussion “Another proposed project on Newtown Bypass” for more comments from local area residents/

Posted on 19 Mar 2021, 12:07 - Category: Development

Wawa is Back!

On March 17, 2021, attorneys for Provco Pineville Acquisitions, LLC, submitted a Zoning Hearing Board application for a hearing to grant a “special exception” E-30 use to build a Super Wawa combination convenience store and gas station on the SW corner of Newtown Bypass and Lower Silver Lake Road in the Office Research (OR) district. This is the same location as in it’s original application that was presented to the Newtown Board of Supervisors (BOS) back in In May 2018 [Read “Developer and Attorney Present Their Case for a WaWa Superstore on the Newtown Bypass”].

Some History

Excerpted from the application:

In October of 2019, Provco submitted a "substantive challenge" to the Joint Municipal Zoning Ordinance (JMZO) to the Zoning Hearing Board (ZHB). Provco's challenge asserts that the JMZO is de jure exclusionary with respect to a "retail store with fuel dispensing facilities" use. Alternatively, the zoning application requested a use variance to allow a retail store with fuel dispensing facilities at the Property.

Prior to an evidentiary hearing being held on the Application, the Newtown Township Board of Supervisors ("BOS"), together with boards of supervisors of Wrightstown Township and Upper Makefield Township, amended the JMZO by adopting JMZO Ordinance #2020-02 ("Ordinance Amendment".) The Ordinance Amendment, in addition to other provisions, amended section 501.A.3 of the JMZO (OR District) to permit a Use E-30 Motor Vehicle Fueling and Convenience Store by special exception and listing criteria therefor. Applicant granted the ZHB an extension of the time within which the ZHB must hold a hearing on the 2019 Zoning Application through December 31, 2021.

The amendment passed by the JMZO allows the E-30 use in the OR zone of Newtown as well as other locations in Wrightstown and Upper Makefield.  [Read “Discussions of E-30 Zoning Amendment”  for more details about the curative amendment.]

Wawa Still Pushing for Variances

The new Provco application still requires several variances, including:

• To permit a Use E-30 Motor Vehicle Fueling and Convenience Store with eight (8) fuel dispensers on the 4.95 acre Property where six (6) fuel dispensers are permitted by right;
• Various signage variances such as locating a wall sign to be located within 1,000 feet of and facing the limited access portion of the Newtown Bypass;
• Applicant also proposes two (2) electronic message center monument signs - one (1) of 49.9 square feet in area and 10' in height located along the Newtown Bypass, and one (1) of 35 square feet in area and 8' in height located along Lower Silver Lake Road. Electronic signs are prohibited throughout Newtown Township and especially not on the Bypass – not even within 1,000 feet of the Bypass. Electronic signage has been denied to other gas station owners such as Rick Steele’s.

NOTE: JMZO Ordinances do not allow signs along the Bypass and prohibit electronic signs. See JMZO General Signage Ordinance: “Properties Located Along Non-Limited Access Portion of the Route 332 and Route 413 Bypass. No sign located within 1,000 feet of the Route 332 or the Route 413 Bypass legal rights-of-way shall face onto the Bypass so that the message or symbol on the sign may be visible from any location within the Bypass legal rights-of-way…” and “Electronic message centers are prohibited within the Jointure.”

One variance NOT requested concerns an electric vehicle charging station such as a Tesla SuperCharging station. There are quite a quite a number of Tesla owners in the Newtown area. This is something specifically requested by Newtown request and the new zoning ordinance requires a minimum of one electric vehicle charging station for Use E-30 when located in the OR District.

There are several steps and public meetings/hearings before this application reaches the ZHB for its decision. Meanwhile...

What Do You Think?

DISCLAIMER: This is not an official Newtown Township approved survey. Its purpose is solely to inform John Mack – a Newtown Supervisor – of the public’s opinion regarding this issue.

Posted on 18 Mar 2021, 11:11 - Category: Development

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