Last night, on June 10, 2019, the Board of Supervisors unanimously voted against Wawa’s Land Development Plan, which proposed construction of a ‘Super’ Wawa convenience store and gas station at the intersection of Lancaster and South Aberdeen. Ultimately, the Plan included violations of Radnor’s Zoning Ordinance and Subdivision and Land Ordinance that prevented its approval absent onerous conditions; given Wawa’s negotiating position and the residents’ overwhelming opposition to the project, there was no meaningful opportunity to seek a compromise at this phase of the project.
I’m honestly a little disappointed by this outcome. Opinions can obviously differ but, based on my own idiosyncratic preferences, I believe that a Wawa at the intersection of Lancaster and Aberdeen would be a better aesthetic than what’s there now. More importantly, it’s my expectation that the gas station, service station, and car wash have all infiltrated hazardous substances into the soil that will cost hundreds of thousands of dollars to remediate; Wawa is one of a select few businesses that could fit in that space and have the financial wherewithal to repair the pollution. And, while I view the additional traffic as dangerous to pedestrians—especially children—the untreated petrochemicals that I anticipate to be in the soil so close to schools is another kind of very real danger. Given the near unanimity of resident opinion, however, this is clearly an issue where I need to be a true representative and not indulge my own preferences; I plan to continue to be that representative.
Which brings us to phase II of the project. Some of you at the meeting wondered why Wawa withdrew the amended plans it had developed in conjunction with the neighbors in favor of its original land development plan. I don’t know. But, if I had to guess, I would suggest that this is a negotiation tactic: the Plan that Wawa will now appeal to the Court of Common Pleas in Media is the least appetizing option to the Township; this gives Wawa the opportunity to re-offer the amended plans that some of the neighbors endorsed during the course of their appeal, in exchange for permission to build in spite of the zoning violations that would have barred any of the three plans from approval last night. To mix metaphors, Wawa has moved the goal posts of the negotiation in order to prevent the Township from bootstrapping new concessions in addition to the earlier amendments.
But wait! In my last e-mail I wrote that the Board of Commissioners only had the authority to call balls and strikes, and that concessions that did not bring the Plan into conformity with our Zoning Ordinance and SALDO would not save the plan. That raises the question: how can the Township negotiate with Wawa on appeal if it isn’t willing to submit a truly by-right plan?
The answer is that, having ruled on Wawa’s Land Development Application, the Board of Commissioners has ceased to be a quasi-legislative/quasi-judicial body and is now merely a party to Wawa’s pending appeal.* And, while the Board of Commissioners cannot violate the Zoning Ordinance in its quasi-legislative or quasi-judicial functions, it’s well-settled that, as a party to an appeal, it is free to enter into settlements—even settlements that violate the Zoning Ordinance.** If you’re thinking that this system just encourages deep-pocketed land developers to file successive appeals in hopes settling after exhausting the Township and residents’ interest and financial ability to oppose the development, then congratulations—you’ve just discovered the flaw America’s appeals system. On the other hand, the Township is currently appealing the Court of Common Pleas decision permitting Villanova to erect a dome next to a residential neighborhood so, if you support that appeal, then you’ll agree that there is an upside to the messy, confusing, and frustrating appellate process.
Here’s what all that means for residents:
First, the Board voted against the Wawa Land Development Application, but that doesn’t mean that the project is dead. For those of you who are in favor of a Wawa under appropriate conditions, the new stage of the proceedings increases the Board’s flexibility in both making offers and imposing restrictions, so this is a win for you. For those of you who are opposed to the Wawa under any circumstances, last night’s vote was a key victory for you, but it’s important that you continue to make your positions known because the process hasn’t ended.
Second, the negotiations will not be carried out in public, and the public will not receive meaningful status updates. The Board is permitted to keep litigation matters confidential,† and its decision to waive that privilege can result in waiving the attorney-client privilege for the entirety of the representation, and not just with respect to the specific information made public.†† I understand the frustration at being told that what was a transparent process is about to become completely opaque. Unfortunately, sharing confidential information about active litigation would possibly be a breach of the individual Board members’ fiduciary duties to the Township, and not something we’re going to do.
On the other hand, at least one group of residents has already retained counsel and of course others are free to do so as well. Interested residents who intervene in the appeal will be included in mediations and in multi-lateral settlement discussions, and will not only be kept abreast of the situation but will have a genuine say in any settlement that is proposed and, maybe, reached. So, just like Wawa, the law provides a back-door for residents as well. I strongly urge you to take advantage of it.
Third, my newsletters going forward may continue to include footnotes and have fewer pictures. I’d love to get back to writing something that doesn’t require the use of double-daggers, so hopefully this case doesn’t last too long.
*Technically the appeal hasn’t been filed and served yet, but I suspect that’s just because it takes a while for the Prothonotary to stamp Wawa’s Notice of Appeal.
** See, e.g., Boeing Co. v. Zoning Hearing Bd. of Ridley Twp., 822 A.2d 153, 161 (Pa. Commw. 2003). (“Because court-approved settlements of zoning cases are lawful, we must recognize such settlements as being distinct from zoning hearing board variances; even though a judicial settlement may result in a departure from the ordained zoning pattern, that kind of departure falls within the court’s jurisdiction, not the board’s jurisdiction.The objectors’ real concern here is that if parties to zoning appeals can settle them by stipulation, the procedures and purpose of the MPC may be totally circumvented. However, the law favors settlement[.]”).
† “An agency may hold an executive session for one or more of the following reasons: . . . (4) To consult with its attorney or other professional advisor regarding information or strategy in connection with litigation or with issues on which identifiable complaints are expected to be filed.” 65 Pa.C.S. § 708 (a)(4).
†† See, e.g., Bagwell v. Pennsylvania Dep’t of Educ., 103 A.3d 409, 418 (Pa. Commw. 2014) (“a party in litigation may not selectively disclose records that help its position, while protecting others on the subject as privileged, because to do so is to wield the privilege as both a sword and a shield. To do so is fundamentally unfair to the opposing party, in addition to not serving the interest in candor to the courts.”).