In October and November three hearings were held before Conshohocken’s Zoning Hearing Board. The issue involved a validity challenge to the ordinance passed by Conshohocken’s Borough Council that amended the Residential-Office Zoning District. This ordinance is what moved forward the proposal to build a Wawa on the Moore Property on 1100 block of Fayette Street.
Over the three hearings, the group that seeks the invalidation of the ordinance, which consists of nearby property owners, presented a witness that testified that the ordinance is spot zoning. The developer of the Wawa, Provco Pineville, defended the ordinance and its expert witness testified that the ordinance was not spot zoning.
To drill down to core of the testimony, the expert witness for the group challenging the ordinance testified that the ordinance created an “island” within a zoning district that could not be replicated elsewhere within the district. The ordinance doesn’t specifically say that the conditions it creates are specific to the Moore Property, but that by meeting these conditions (such as size of the property, etc.) a convenience store with gas is permissible. All of the conditions fit the Moore Property.
The expert for the group challenging the ordinance further testified that he always looks to see if the conditions are possible in at least two locations within a zoning district. It was his conclusion that once the Wawa exists, no property or collection of properties could meet the required conditions for a convenience store with gas pumps.
The testimony from the developer’s expert witness challenged the “island” concept due to the location of the Moore Property at the Whitemarsh border, non-residential neighboring properties such as the athletic fields and cemetery, and sheer size. He offered that the Moore Property couldn’t be viewed as a island because it always existed as something different within the zoning district. This witness also challenged the assertion that the conditions couldn’t be met elsewhere.
As we noted above, the conditions that allow for a convenience store with gas pumps, line up with the existing conditions of the Moore Property. Conditions include frontage to state highway (Fayette Street), square footage, etc. Under cross examination, the attorney for the group pursuing the validity challenge had the two witnesses offered by the developer confirm that they had helped write the ordinance.
During all of this the Borough of Conshohocken was also represented by at least two attorneys during each hearing. What is so odd about this is that the ordinance in question was one passed by Borough Council. Its their ordinance that needed defending (even thought the developer wrote it). For the very most part, the attorney who did the speaking for the two representing the Borough just parroted what the developer’s attorney said or objected to. The Borough presented no witnesses. The developer’s attorney was definitely in charge of the defense.
We are told this is not unusual. Maybe it should be. It made the Borough look beholden to the developer.
The Zoning Hearing Board is scheduled to make its ruling by February 1st.