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CALIFORNIA CAR WASH ALLENTOWN v. ZONING HEARING BOARD WHITEHALL TOWNSHIP (06/16/86)

decided: June 16, 1986.

CALIFORNIA CAR WASH OF ALLENTOWN, INC. AND TEXACO, INC., APPELLANTS
v.
ZONING HEARING BOARD OF WHITEHALL TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lehigh County, in case of California Car Wash of Allentown, Inc. and Texaco, Inc. v. Zoning Hearing Board of Whitehall Township, No. 84-C-1023.

COUNSEL

Mark Malkames, with him, William G. Malkames, for appellants.

Joseph A. Fitzpatrick, Jr., Fitzpatrick & Associates, for appellee.

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

Author: Rogers

[ 98 Pa. Commw. Page 210]

California Car Wash of Allentown, Inc. (landowner) and Texaco, Inc., applicants, have appealed from an order of the Court of Common Pleas of Lehigh County affirming the decision of the Zoning Hearing Board of Whitehall Township (Board) that the applicants' application for "authorization of the continuation, change, and expansion of a nonconforming use from a service station to a service station with a food mart" should be denied because the nonconforming use had been abandoned.

The landowner owns a lot with frontage on two public roads in Whitehall Township, located in the C-1 Neighborhood Commercial Zones district in which an

[ 98 Pa. Commw. Page 211]

    automobile service and repair station is a permitted use. The landowner's use of the gasoline service station is nonconforming solely because the service station does not conform to Section 1311(d) of the Whitehall Township Zoning Ordinance which provides that an automotive service station shall not "be located nearer or closer than twenty-five hundred . . . feet to any other automotive service station measured on a direct line"; there is another station less than 2,500 feet distant.

The landowner's application to the Board was made on December 15, 1983. The landowner requested to continue, change, and expand its nonconforming use and, in addition, applied for variances from certain setback and sign requirements in connection with its proposal to raze existing buildings and construct a retail store and gasoline dispensing facilities.

After two hearings, the Board issued its decision. The undisputed facts, all of which are the subject of the Board's findings, are as follows. When the landowner acquired title to the lot in 1977, the land was leased to the Exxon Corporation as a service station selling gasoline to the public. While Exxon used part of the lot for the sale of gasoline, the landowner used another part of the lot to service, repair, and change the oil of foreign cars. Exxon terminated the lease in September, 1982. After September 1982, the landowner continued its foreign car service business. It sold gasoline to persons whose foreign cars were being serviced and to persons who rented trucks from a Ryder Truck rental franchise also located on the lot. The landowner discontinued selling any gasoline about April 10, 1983. The pump island which had been used by Exxon remained in place although only one nonoperational pump remains. The underground storage tanks for gasoline are still in place, the electric service lines for the pump island have been disconnected, and the foreign car repair operation

[ 98 Pa. Commw. Page 212]

    stopped doing business on the lot in September ...


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