Mar 25, 2019

Eastburn and Gray Attorneys Successfully Strike Condition of Approval Precluding 24-hour Operation of Convenience Store

John A. VanLuvanee, Julie L. Von Spreckelsen, and Zachary A. Sivertsen successfully represented The Verrichia Company (“Verrichia”) in an appeal of conditions imposed by the Schuylkill Township Board of Supervisors on its grant of conditional use approval to construct a convenience store with fuel sales at the corner of White Horse Pike and Valley Forge Road to the southeast of Phoenixville.

After the attorneys successfully argued for conditional use approval for the convenience store, the Schuylkill Township Board of Supervisors imposed a number of conditions on the use and development of the site, ostensibly meant to protect the health, safety, and general welfare of the community. Most notably, the Board imposed a restriction on the hours of operation; limiting store hours to 5:00 a.m. to 11:00 p.m. The asserted basis for this restriction was a series of news articles detailing robberies occurring at a variety of convenience stores across Pennsylvania, New Jersey, and Delaware. These articles, the Board concluded, demonstrated the inherent risk of violent crime associated with businesses that are always open. Such truncated hours of operation however, create a significant competitive disadvantage for the new store, as nearby convenience stores are under no such restriction, and the convenience store’s brand was largely based on being available to its customers 24 hours a day, 7 day a week.

In striking the Board’s condition, the Honorable David F. Bortner of the Chester County Court of Common Pleas concluded that the asserted basis for imposing the condition was meritless because none of the evidence presented indicated any likelihood of crime at the proposed location, and the Board’s concerns lay “squarely in the realm of speculation…” Commenting on Judge Bortner’s ruling, Ms. Von Spreckelsen noted that “this decision is important in the fight against municipal overreach and the improper intrusion of municipalities into business operations under the guise of zoning regulations.”

Mr. VanLuvanee handles zoning, subdivision and land development matters, as well as real estate transactional matters, for both developers and property owners. His clients include national builders and developers, as well as many regional and local builders and developers.

Ms. Von Spreckelsen has been representing commercial and residential real estate developers, businesses, individuals, and distinguished institutional clients in real estate law, including zoning, subdivision, land development and municipal-related matters for more than 15 years. She frequently represents clients in front of municipal bodies and state courts throughout Pennsylvania and New Jersey.

Mr. Sivertsen practices land use and zoning, real estate, litigation, construction, and municipal law at Eastburn and Gray. He has appeared on behalf of clients before zoning hearing boards, municipal governing bodies, courts of common pleas, and the Pennsylvania Commonwealth Court in land development matters, applications for zoning variances, and zoning appeals.

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