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A Proposed Gasoline Use

August 4, 2014

An interesting recently decided Commonwealth Court case involved Costco's proposal to install 16 gasoline fueling pumps next to its existing store contending such use is a permitted accessory and/or special exception use under the applicable zoning ordinance.  The zoning ordinance permits indoor store retail sales in the specific zoning district where the Costco store is located, but not outdoor retail sales such as a gasoline fueling station

Costco contended the outdoor sale of gasoline is a use subordinate and customarily incidental to an indoor retail store and should be permitted as an accessory use.  Hence, Costco contended the proposed fueling site should be approved.  The Zoning Officer disagreed, denying Costco's application which denial was appealed by Costco to the Zoning Board which affirmed the Zoning Officer's decision.  Costco then appealed to the Commonwealth Court.

Costco testified its retail store is located on 9.44 acres surrounded by its huge parking lot.  Costco intended to eliminate 84 parking spaces and construct a canopy with 4 fueling bays to house 16 self-serve fueling positions with a kiosk for an attendant to address customers' concerns.  Costco noted it had been installing gasoline stations at retail stores since 1999 and its' big box competitors likewise have been installing gasoline fueling sites at their locations.  A Costco engineering witness testified the traffic patterns would not be adversely impacted and there were adequate remaining parking spaces for its store. 

The applicable Zoning Code Section identified a significant number of retail uses permitted by right including, incidentally, the sale and repair of vehicles.  But the sale of gasoline, not an unusual retail activity, was specifically not included in the list.

The Zoning Board, while recognizing parking and traffic issues were not a problem at the location, nevertheless based its denial on the Zoning Ordinance.  The Board adopted the Zoning Officer's reasoning that retail sales are conducted in indoor facilities, adding the special exception in another section of the Ordinance excluded the gasoline fueling station as an alternative retail use in that specific section.  The Commonwealth Court noted, adopting the Board's conclusion, all aspects of the self-serve is outdoors - the attendant, the pumps and the customers required to leave the vehicle to pump and pay for gasoline.  Thus, the Commonwealth Court agreed the gasoline filling station was not an indoor retail use nor under the Code, as a result, could be deemed an accessory use to Costco's retail store.

With respect to Costco's special exception argument, the Zoning Ordinance included a provision dealing with outdoor retail restaurants and similar type uses that could be approved as a special exception.  The Court concluded gasoline fueling station use was not similar to any of those special exception uses and, hence, that section could not be utilized to permit Costco's proposed gasoline fueling station. 

Possibly Costco will appeal the Commonwealth Court's decision but, in my opinion, it is doubtful an appeal will result in a reversal.

The lesson for members, when considering the development or improvement of a site, is to verify zoning before making a significant investment.

This article was written by Norman P. Zarwin, Esquire and published in the Alliance of Automotive Service Providers of Pennsylvania and Delaware magazine. 


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