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IMS AMERICA v. ZONING HEARING BOARD BOROUGH AMBLER AND HERMAN IACOVETTI (01/30/86)

decided: January 30, 1986.

IMS AMERICA, LTD., APPELLANT
v.
ZONING HEARING BOARD OF THE BOROUGH OF AMBLER AND HERMAN IACOVETTI, APPELLEES



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of IMS America, Ltd. v. Zoning Hearing Board of the Borough of Ambler, No. 83-17354.

COUNSEL

Marc B. Kaplin, with him, Stephen Raslavich, Lesser & Kaplin, P.C., for appellant.

George Q. Hardwick, for intervenor, Herman Iacovetti.

Judges Rogers and MacPhail, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 94 Pa. Commw. Page 502]

IMS America, Ltd. (appellant) has appealed from an order of the Court of Common Pleas of Montgomery County affirming the decision of the Zoning Hearing Board of the Borough of Ambler (Board) that the application of landowner Herman Iacovetti to extend a lawful nonconforming use of land should be granted.

Mr. Iacovetti owns a lot of land containing 24,308 square feet, improved with a small automobile service and repair building and two gasoline pump islands. It is located at an intersection in the Borough of Ambler. Mr. Iacovetti commenced operation of the existing gasoline and auto repair station in 1971 which he then rented from others. He purchased the property in 1976. The property was at first zoned commercial and Mr. Iacovetti's operations were permitted uses until 1977 when borough council enacted a new

[ 94 Pa. Commw. Page 503]

    zoning ordinance which placed the property in the TC Transportation Center District in which the use of land for a gasoline and auto repair station was not a permitted use.

In August 1983, Mr. Iacovetti filed with the Board an appeal from the action of the borough zoning officer refusing his application for permission to build and operate a car wash facility as an extension of his nonconforming use of the property. The use of land for a car wash is also not permitted in the TC district.

At the Board's hearing Mr. Iacovetti testified that he used two-thirds of his lot for his gasoline and auto repair station and its appurtenances and that cars have been parked on the balance of the lot. The existing building is 55 by 28 feet or 1,540 square feet in area; the proposed car wash building would be a separate building measuring 80 by 25 feet or 2,000 square feet; that is, about one-third larger than the existing building. A plan in evidence shows that the entrance to the car wash would be by passing through the pump islands; the exit would be to a public road by means of a proposed new curb cut. A witness knowledgeable in the car wash industry testified that the car wash could cost as much as $150,000.

The Board reluctantly concluded that Mr. Iacovetti was entitled to a permit to have the car wash by Section 2605 of the Ambler Borough zoning ordinance and also upon what it believed were holdings of the Pennsylvania Supreme Court that a car wash is a use accessory to a gasoline and auto repair station and therefore is ineluctably and unconditionally qualified to be approved as an extension to an existing lawful nonconforming gasoline and auto repair station. The common pleas court, which ...


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