Judge reverses Planning Board's approval to build a Super Wawa in Winslow on the White Horse Pike.

A state Superior Court judge this month reversed a decision by the Winslow Township Planning Board made last year authorizing the construction of a Super Wawa on the White Horse Pike (Route 30).

In her February 15 decision, Judge Deborah Silverman Katz in Camden County sided with the plaintiffs' argument that the decision fell not under the jurisdiction of the Planning Board, but under that of the Township Zoning Board of Adjustment. She stated that the developers need to apply to the zoning board for a use variance on the property.

"The court finds that the Planning Board acted arbitrarily, capriciously and unreasonably," according to Silverman Katz's opinion.

Local residents Marc and Heidi Dragish and Bryan Popiolek and S&N Multani LLC, which operates the gasoline station that would be across White Horse Pike from the Super Wawa, were named in court records as plaintiffs.

The defendants are the Winslow Township Planning Board, Alfred F. Salvatore Jr., Daryl A. Salvatore Sr. and Winslow 30 Developers LLC. The Salvatores own the property and the LLC, based in Lakewood, would buy the land and develop it for Wawa.

Judge Silverman Katz stated that no material facts were in dispute and the case involved solely a question of law.

At the heart of the dispute was whether the planned Super Wawa, a convenience store with 10 fueling stations, should be considered a gasoline filling station, as the plaintiffs argued, or a "hybrid use," as argued by the developers. The developers and the lawyer for the Planning Board contended that, because the Wawa would not have a repair shop, it would not be a gasoline filling station under the local ordinance.

"The court is not persuaded by the 'hybrid use' argument," Silverman Katz wrote in her opinion. "If a liquor store is not a permitted use in a residential zone, but a retail store is, then a liquor store that also sells clothing would not suddenly become eligible."

The property is in a residential zone and Winslow zoning law does not permit gasoline filling stations in that zone. 

Silverman Katz wrote that if a gasoline filling station is not permitted in a residential zone, "the fact that a 'convenience store' is an equal part of the business does not suddenly make it eligible."

Her opinion said the plaintiffs' arguments were more persuasive. "The proposed Wawa more closely aligns with the term 'gasoline filling station' than a roadside retail sales and service establishment," she wrote.

The developers should have applied for a use variance from the zoning board because "the ordinance clearly contemplated that 'gasoline filling stations' should be considered an incompatible use within the PR-1 residential zone."

Another dispute in the case was whether Township law prohibits a gas station within 2,000 feet of another gas station. A Conoco gas station and repair garage operates across the street from the proposed Wawa site.

The Wawa should not be excluded under this law from operating across the street from the Conoco because it has no repair facility, the defendants argued.

Silverman Katz found that constructing the Wawa gas station within 2,000 feet of the Conoco station was indeed prohibited under the ordinance and that a variance should have been sought from the zoning board.

» READ MORE: Ever-growing Wawa: Loving them, hating them at the same time as Super Wawas roll out in the region.

If the proposed Wawa at the intersection of the White Horse Pike and Waterford-Blue Anchor Road makes it by the zoning board, the small D&S Sub Shop, which has operated on the site since 1948, and two houses would be demolished.

A legacy Wawa convenience store, which does not have the gasoline filling station, is less than a mile north of the site on the White Horse Pike.