Agenda - Planning Commission - 01/31/2013 - Special

Home

Zoning Bulletin September 25, 2012 I Volume 6 I Issue 18 the sale of gasoline would take place outdoors, that use would not comply with the standard for a permitted retail use, concluded the Board. Costco appealed to the trial court. The trial court affirmed. Agreeing with the Board's interpretation of the Ordinance, the trial court found that the Ordinance required a proposed accessory use to comply with the standards applicable to the permitted use to which it was accessory. The trial court held that Costco's proposed sale of gasoline did not meet the standard that retail uses be conducted in "indoor facilities" because a gasoline service station is conducted outdoors. Costco appealed. DECISION: Affirmed. The Commonwealth Court of Pennsylvania held that the sale of gas- oline was not a permitted accessory use under the Ordinance because accessory uses were permitted only when "in compliance with the stan- dards applicable to the permitted use to which they are accessory" and those standards required the use be conducted in "indoor facilities," and gasoline filling stations were an outdoor facility. Analyzing the Ordinance, the court found that the only "[s]tandard retail uses permitted by right" were "[s]hops, stores or other indoor fa- cilities for the retail sale of goods or merchandise to the general public .." The Ordinance provided a "long and varied," "exhaustive" list of examples of retail uses permitted by right. The sale of gasoline was not on that list. The court noted that "indoor" was not defined in the Ordinance. Looking to the plain meaning of "indoor," the court found it was "something done inside a building." Pumping gasoline, noted the court, does not take place indoors. Moreover, "other indoor facilities" must be interpreted, said the court, to include things of the same type as what is included in the preceding list, i.e., "shops" and "stores." A gasoline filling station is not a "shop" or a "store," said the court. In sum, a gas- oline filling station is not a shop, store, or other indoor facility, found the court. Costco had argued, however, that some of the retail uses in the Ordinance's list of retail uses permitted by right took place outside such as "drive -through" windows. The trial court had explained that the drive -through window of a restaurant was more indoors than outdoors, and the appellate court found its reasoning to be logical. The court concluded by acknowledging that, logically, Costco's proposed gasoline filling station appeared to be "a natural adjunct to its retail store." Still, the court found it clear that a gasoline filling station was an outdoor facility, and thus did not meet the standard for retail stores (i.e., an "indoor facility") permitted by right under the Ordinance. © 2012 Thomson Reuters 11