The Law

Erie Zoning Ruling a Nightmare for C-Store by Ron Davis Strict enforcement of local zoning laws has seriously jeopardized the profit potential of a Pennsylvania shopping center tenant. The shopping center, located in suburban Erie, had leased space to the tenant for the operation of a retail grocery store. But unlike a typical grocery store, this one included a plan for the sale of gasoline from pumps installed in front of the facility. That plan didn’t sit well with residential neighbors. They pointed out that zoning laws state that the business district in which the shopping center is located does not permit gasoline service stations. In response, the tenant argued that his business would not be a gasoline service station, but rather “a convenience store that sells groceries as well as gasoline.” In fact, the tenant’s store would not offer any typical automotive services, and because the fuel pumps would be self-service types, the sale of gasoline would be strictly a retail transaction. The residential neighbors nevertheless sued to prevent the installation of gasoline pumps at the tenant’s store. A Pennsylvania court sided with the tenant, concluding that the tenant’s store qualifies as a convenience store “whose principal business is simply gasoline sales.” The residential neighbors appealed that decision. The Commonwealth Court of Pennsylvania reversed the lower court decision, explaining, “A convenience store is not a separate and distinct entity, but, rather, is a species of grocery store. As such, it is apparent that its use does not encompass gasoline sales, which, in fact, are totally omitted from the business district zone…. In relegating convenience stores to their identity as a type of grocery store, the zoning laws place the use together with meat, poultry, fish, fruit and vegetable markets, all of which are traditional retail food enterprises. Therefore, the proposal to combine the two types of sales as parts of a convenience store use runs counter to the terms of the zoning laws.” (Alessi v. Millcreek Tp. Zoning Hearing Bd., 814 A.2d 278 [Pa.Cmwlth 2003]) Decision: February 2003 Published: March 2003