Bluetriton Brands, Inc. v. Washington Township Zoning Hearing Board and Weis Markets, Inc. (Pennsylvania Court Splits on Shopping Center Gas Station Fight)

Full write-up

Weis Markets, Inc. operates a grocery store under a lease at Bangor Plaza, a 20.3-acre planned development within Washington Township's Commercial District in Northampton County, Pennsylvania. In 2022, Weis applied to the Township's Zoning Hearing Board for a special exception to add a Gas-N-Go fuel station, with six fueling positions under a canopy, on a pad previously approved for a now-vacant bank branch. The Board approved the application in February 2023, over the objection of Bluetriton Brands, Inc., which owns the Deer Park spring water brand and operates a commercial water-extraction business on fifteen parcels in the Township, several of which directly adjoin the Bangor Plaza site and lie downstream of it.

Bluetriton's opposition rested on more than an ordinary neighbor's land-use objection. Through a licensed hydrogeologist and a petroleum-storage-systems expert, Bluetriton presented evidence that surface and groundwater flow southward from the Weis property toward the Greenwaltz Spring, the primary source for its Deer Park bottling operation, and that the fuel station's planned effluent discharge into a stormwater basin forming part of that same flow path created a meaningful risk of gasoline contamination. Its expert also cited Pennsylvania Department of Environmental Protection records showing that roughly half of Weis's existing Gas-N-Go locations statewide had drawn DEP notices of violation for storage-tank compliance failures, including undetected releases and inadequate spill controls.

The Court of Common Pleas of Northampton County sided with Bluetriton on appeal and reversed both the Board's site-plan approval and its grant of the special exception. Weis then appealed to the Commonwealth Court, arguing that no special exception was required at all because a fuel station is permitted by right in the Commercial District, that no site plan was required given ambiguous language in the Township's zoning and subdivision ordinances, and that even if a special exception were required, the ordinance set no specific standards for the use, so nothing shifted the evidentiary burden to Weis in the first place.

Writing for a unanimous panel, President Judge Renée Cohn Jubelirer agreed with Weis on the narrower site-plan question, holding the ordinance's language on when a site plan must be submitted was genuinely ambiguous and that Weis did not need to submit one as a precondition to proceeding. The court declined to resolve the special-exception question on the merits, however, because the trial court's order had not addressed all of the arguments Bluetriton raised against the Board's grant of the special exception, and remanded for the Court of Common Pleas to issue a new opinion reaching those remaining arguments.

The upshot is that retailers and shopping-center owners adding a new use to an existing commercial development should check a local ordinance's site-plan and special-exception provisions independently rather than assume one tracks the other, since Weis needed four years and two levels of appellate review just to resolve the site-plan half of its application. A neighboring business with a genuine, quantifiable property interest, here a groundwater source feeding a national beverage brand, can build an evidentiary record sophisticated enough to survive a favorable board decision and prevail at the trial-court level, and a chain's regulatory compliance record at its other locations can end up as evidence of risk at a new site. Because the Commonwealth Court remanded rather than deciding the special-exception question outright, a partial appellate win on one zoning issue can still leave the underlying approval, and the carrying costs of the vacant pad in the meantime, unresolved for years.

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