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September 25, 2012 I Volume 6 I Issue 18 Zoning Bulletin Use/Interpretation ' etail tore • wner eeks to Install Gasoline Filling tation as Accessory Use Township denies request, saying only indoor retail sales are permitted in zoning district Citation: In re Costco Wholesale Corp., 2012 WL 3079258 (Pa. Commw. Ct. 2012) PENNSYLVANIA (07/31/12)—This case addressed the issue of whether a gasoline filling station was permitted as an accessory use under a township's zoning ordinance, which required accessory uses meet the standards applicable to the permitted use and the standards included being an "indoor facility." The Background/Facts: Costco Wholesale Corporation ("Costco") owned and operated a retail store in the Expressway Corridor Preserva- tion Overlay District ("Overlay District") in Montgomery Township (the "Township"). Costco proposed to install 16 gasoline fueling pumps in the parking lot next to its existing store. It believed gasoline filling stations were permitted as an accessory use under the Township's Zon- ing Ordinance. The Township's Zoning Officer informed Costco that the Overlay District peumitted indoor retail sales, but not outdoor retail sales, such as gasoline filling stations. The Zoning Officer also rejected Costco's proffered theory that the outdoor sale of gasoline was a use subordinate and customarily incidental to an indoor retail store. Costco appealed the Zoning Officer's determination to the Zoning Hearing Board (the "Board"). After a hearing, the Board denied Costco's appeal of the Zoning Officer's determination that Costco's proposed gasoline filling station was not authorized in the Overlay District. The Board's decision was based upon its construction of the Zoning Ordinance. It construed the Zoning Ordinance as not permit- ting gasoline filling stations in the Overlay District. In regard to Costco's argument that the gasoline filling station was a permitted ac- cessory use, the Board explained that accessory uses were permitted where: (1) the use was subordinate to the permitted Overlay District use; (2) the use was customarily incidental to the peuuiiitted Overlay District use; and (3) the use complied "with the standards applicable to the permitted use to which they are accessory." Here, the Board reasoned that the "standard" applicable to the permitted use of retail sales was that the sales be conducted in an "indoor" facility. Because 10 © 2012 Thomson Reuters