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WARMINSTER TOWNSHIP v. SOL J. KESSLER (12/13/74)

decided: December 13, 1974.

WARMINSTER TOWNSHIP, APPELLANT,
v.
SOL J. KESSLER, CHARLES E. BROOKS AND MARTHA BROOKS, APPELLEES



Appeal from the Order of the Court of Common Pleas of Bucks County in case of In Re: Appeal of Sol J. Kessler and Charles E. Brooks and Martha Brooks from Decision of Warminster Township Zoning Hearing Board, No. 73-774-07-6.

COUNSEL

George M. Bush, with him Hartzel, Bush & O'Neill, for appellant.

Peter A. Glascott, for appellees.

Judges Crumlish, Jr., Kramer and Wilkinson, Jr., sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 16 Pa. Commw. Page 68]

The determinative issue presented by this appeal is whether or not a car washing facility, operated independent of an automobile repair garage, is a permitted use in a LI-Light Industrial Zone under Section 1405(36) of the Warminster Township Zoning Ordinance. This section provides for the following use: "Automobile repair garage including paint spraying and body and fender or car washing facility, provided that all

[ 16 Pa. Commw. Page 69]

    repair and paint work is performed within an enclosed building."*fn1

On October 9, 1972, Sol J. Kessler (Kessler), the equitable owner of a corner property located at the intersection of Street Road and Mary Street in Warminster Township, applied to the Zoning Hearing Board of Warminster Township (zoning board) for a variance to sell retail gasoline incidental to a proposed car wash facility which Kessler contended was a permitted use under Section 1405(36) of the applicable zoning ordinance. After a hearing, the zoning board denied the application by interpreting Section 1405(36) to permit a car wash facility only in conjunction with an automobile repair garage. The zoning board further denied a variance for the retail sale of gasoline because Kessler had failed to establish unnecessary hardship.

An appeal was taken to the Court of Common Pleas of Bucks County, at which time it was discovered that Kessler had failed to file an application for a permit for the proposed use as required by Section 1401 of the zoning ordinance. The lower court accordingly remanded the record for the nunc pro tunc filing of an application for a zoning permit. On May 2, 1973, Kessler filed two applications for permits under Section 1405(36): One for the operation of a car wash only, and the other for a car wash as a principal use with the retail sale of gasoline as an accessory use. The permits were denied by the zoning officer, and on appeal to the zoning board, this denial was affirmed. Consistent with its prior decision, the zoning board determined that a car wash facility was not a principal use under Section 1405(36), and further that the retail sale of gasoline could not be an accessory use thereto.

On appeal of this decision, the court below reversed as to the application for a car wash, determining that

[ 16 Pa. Commw. Page 70]

Section 1405(36) as strictly construed permitted a car wash facility as a matter of right. The denial of a retail gas operation as an accessory use, however, was affirmed as there was no evidence that such a use is usually and naturally incidental to a car wash facility. Warminster Township appeals the former determination to this Court. No cross appeal was filed ...


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