New Garden Township

New Walmart Did Not Meet Zoning Laws

Citizens won their Appeal

A big commercial developer did not obtain several waivers that would have allowed it to bypass the Zoning Review Board and the Planning Commission in New Garden Township, Pennsylvania. The developer, Pennsylvania Real Estate Investment Trust (PREIT), is a corporation that owns 38 shopping malls and 11 other commercial properties in 13 states. PREIT's lawyers worked with former Supervisors in New Garden Township to get waivers that allow it to build a 181,648 square foot Walmart that did not meet the Township's ordinances.

Specifically, the Walmart store, which was to be located on Route 41 about one mile north of the Delaware state line, would not have met the normal required pavement setbacks, building setbacks, impervious coverage limitations, lighting heights, square footage limits and even some stormwater requirements. This is especially important, since the construction of the mega-store would have been taking place at the headwaters of a sensitive watershed that not only feeds Somerset Lake, but is also a part of the White Clay Creek watershed, which has been designated a National Wild & Scenic River by the National Park Service.


The Walmart store's construction was planned as the first phase in a large-scale retail and residential development. Several years ago, in the early planning stages of the project, PREIT sought input from the community. They seemed open to suggestions for their "high-end" project. The largest store was slated to be a 90,000 square foot Home Depot. The Township Board of Supervisors voted to grant conditional use approval subject to 99 specific conditions. That's when things turned sour. PREIT filed an appeal to the Board's conditions, and a court date was set. The Township Board of Supervisors was shocked, and they worried that some of the conditions would be thrown out in court.

PREIT and New Garden Township never went to court. Instead, PREIT's hired lawyers negotiated with the Township Supervisors (behind closed doors) and in September 2007, a settlement agreement was signed by both parties. At that time, the Planning Commission and the Zoning Review Board were excluded from the process. The Settlement Agreement included language that was interpreted by PREIT and its attorneys as giving it the power to supersede the standard ordinances and laws that were put in place to protect the citizens. The Agreement gave PREIT waivers to normal procedures, but it also placed restrictions on what could be built and on making changes to the plans.

PREIT's last move was to have the Township Board of Supervisors approve another waiver in November 2011. The new waiver would have allowed them to subdivide their property into condominium units without submitting a subdivision application or obtaining subdivision approval as required by the Municipalities Planning Code and the Township's Subdivision and Land Development Ordinance (SALDO). Under heavy protest from citizens, the NGT Board of Supervisors voted 3 to 2 to approve the waiver which let PREIT bypass the Zoning Review Board and the entire subdivision process.

Many residents felt that the Board committed an error of law, abused their discretion and exceeded their authority. The Supervisors approved the waiver request even though the request was not referred to or reviewed by the Township Planning Commission, the County Planning Commission or the Township's Zoning Officer as required by the MPC or SALDO. In addition, a "waiver" is limited to seeking relief from a specific standard found within a SALDO, not to the entire process. The Supervisors' action constituted the granting of zoning variances in violation of section 909.1 (5) of the MPC, 53 P.S. § 10909.1, which vests exclusive jurisdiction for zoning variances with the Zoning Hearing Board.

Additionally, any legitimate request for a waiver must provide a reason why compliance would cause an undue hardship. PREIT failed to establish any hardship that would justify having the entire subdivision process waived. PREIT indicated that the request for a waiver was purely out of convenience based on the preference of potential businesses. The Township solicitor publicly advised the Board of Supervisors that PREIT had not established a hardship, but the Supervisors disregarded that, and approved the waiver anyway.

A group of concerned homeowners have since won their appeal to that decision. S.A.V.E. shared their concerns due to the projected increase in traffic on Route 41 (11,000 trips a day) and other area roads, the loss of community character, net loss of local jobs, and environmental degradation that would accompany the project.

The development plan that was crafted as an outcome of the Settlement Agreement was a mixed use development under the Unified Development Code. The plan did not include the Walmart condominium scheme, which was presented for the first time only in mid-2011. The plans include an age-restricted residential community, a convenience store with gas pumps, a retail center, restaurants, a department store, a "town center" and one big-box store, which was alluded to be a Home Depot for some time. The project was repeatedly described by PREIT as a "high-end" retail center. Artistic drawings and smooth talk from PREIT's lawyer at Township meetings were intended to calm skeptical residents, but were less than convincing. Artistic architectural renderings were then replaced by a standard Walmart design.


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