BEFORE THE ZONING HEARING BOARD OF LOWER MERION TOWNSHIP, MONTGOMERY COUNTY PENNSYLVANIA _______________________________ APPEAL NO.

4090 _______________________________ IN THE MATTER OF: : Applicant - Appellant : 200 West Montgomery Ave. Ardmore, LLC: 116 W. Montgomery Avenue : Ardmore, PA 19003 FINDINGS, OPINION AND ORDER FINDINGS The property at 116 West Montgomery Avenue (the corner of Montgomery and Woodside Avenues) is owned by 200 West Montgomery Ave. Ardmore, LLC (the "Applicant"), an affiliate of Lehigh Gas Company. The property is zoned R 7 Residence. Immediately to the south of the property is a Pennsylvania Railroad line. To the north across Montgomery Avenue is a residential neighborhood. The adjacent property to the east is a residential condominium. [See Exhibit A-3, aerial photograph] For many years, the property has been the site of a nonconforming commercial operation – a gasoline service station with six pump islands and four vehicle repair bays. There have also been limited retail sales of food and beverages at the station over the years.1 The Applicant leases the property to Robert Fritsch, who has operated the station since 1969. The Applicant and Mr. Fritsch now desire to modify the business to

eliminate the vehicle repair and install a car wash and expanded convenience store.

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A more detailed analysis of the extent of the nonconforming use will be provided below.

A. 1.

The Initial Application and Hearing

The proposed use of the property In April 2007, the Applicant applied to the Board for a special exception and

variances in order to expand the retail sales operation and to add the car wash.2 The Board held the initial hearing on the application on May 10, 2007. There, Applicant's engineer, Ronald Klos, P.E., and Applicant's representative, Ken Frye, described the existing conditions and the Applicant's plans to expand the nonconforming use. The existing service station building is 2710 square feet. Approximately 300 square feet is retail space for selling food. The vehicle service bays are approximately 1500 square feet. The rest of the building is made up of office space, storage and corridors. [N.T. 5/10/07, p. 48] Also on the property are six pump islands (two pumps have dual dispensers), paved driveways and parking areas. [N.T. 5/10/07, p. 11; Exhibit A-2, existing conditions plan] The total impervious surface on the property is 83.2 percent, nonconforming to the maximum limit of 50 percent provided for certain uses in the R 7 district. E.g., Code §155-56 A(6).3 [N.T. 5/10/07, p. 22] Applicant proposed to reduce the size of the existing building to 2000 square feet and to use that building exclusively for the sale of retail and convenience products. [N.T. 5/10/07, p. 15] Applicant also proposed to build a new 1380 square-foot building in the rear of the property to house two car wash bays and an equipment room. The two pump islands closest to the existing building would be removed and a queuing lane would be
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Applicant requested a special exception under Section 99 B of the Lower Merion Zoning Ordinance to expand the nonconforming use from 2710 square feet to 3380 square feet of building area. See, Code §155-99 B. Applicant also requested a variance from the prohibition on parking in the front yard setback, a variance from the 20-foot buffer requirement, and a variance from the prohibition on development on steep slopes. Code §§155-114 D, 155-166 D. 3 The allowable impervious surface in the R 7 district varies according to use and ranges from 40 percent for apartment houses to 50 percent for single-family dwellings.

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maintained clockwise around the retail building for access to the two-bay car wash. A portion of this queue would be on an area of steep slopes in excess of 25 percent. Finally, ten parking spaces would be provided within the front yard setbacks of Woodside and Montgomery Avenues. [N.T. 5/10/07, pp. 15-19; Exhibit A-1, site plan] When questioned by the Board, Mr. Klos acknowledged that the plan to provide stacking in an area where other vehicles would circulate to use the fuel pumps was a safety concern that would create conflicts on the site. [N.T. 5/10/07, pp. 30-31, 38-39] In addition, Mr. Klos had not performed any noise studies, air quality studies or traffic studies to determine whether the proposed use would have any adverse impacts on the community. [N.T. 5/10/07, pp. 20, 23-24]4 Consequently, in order to allow the Applicant an opportunity to determine whether the proposed use could be reconfigured to eliminate the on-site vehicular conflicts and to provide other additional information required for a special exception, Mr. Klos' testimony was suspended with the understanding that the matter would be continued to a later date. [N.T. 5/10/07, pp. 39-42] 2. The addition of a car wash Ken Frye then testified regarding the inclusion of the car wash. Mr. Frye's background is in the marketing and sales end of the business and he is responsible for the development of the Exxon-Mobil "On the Run" convenience stores for Lehigh Gas. Lehigh Gas owns and leases approximately 200 gasoline and convenience store facilities. It also operates 9 such facilities itself. [N.T. 5/10/07, pp. 44-45] Mr. Frye stated that that

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The Zoning Ordinance requires applicants for a special exception to establish, among other things, that the proposed use will not "adversely affect the public health, safety and welfare due to changes in traffic conditions, drainage, air quality [and] noise levels[.]" Code §§155-114 A and C(1).

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the vehicle repair operation on the site was no longer viable and that the trend in the industry is to provide gasoline sales and a convenience store. While only 10 of Lehigh Gas's 200 sites have car washes, he noted that the addition of the car wash on the Applicant's property would "improve upon the potential for – to continue the viability of the property." [N.T. 5/10/07, pp. 48-50] Mr. Frye acknowledged, however, that the main competitors with the site are the "big box" sites (like Wawa), which do not offer car washes. He also agreed than none of the Applicant's competitors in Lower Merion Township have the configuration of uses proposed for the subject property. 5/10/07, pp. 60-61, 64] As to the economics of the business, Mr. Frye stated that the existing operation derives 80% of its gross revenue from gasoline sales (with a gross margin of 1-2%), 18% of its gross revenue from vehicle repair (with a gross margin of 45-50%), and 2% of its gross revenue from retail sales (with a gross margin of 23%). He expected that, if the proposed uses were approved, the gross revenue figures would be: 86% from gasoline sales, 12% from retail sales and 2% from car washes. [N.T. 5/10/07, pp. 52-58] Mr. Frye did not provide the gross margin for the car wash, but stated that profits from it are "very high." [N.T. 5/10/07, p. 58] 3. How the car wash operates Finally, Dan Martelli testified regarding the car wash operation. Mr. Martelli is employed by PDQ Manufacturing, maker of robotic and bay automatic car washes. [N.T. 5/10/07, p. 93] He described the "G5" model, which is the one he expected the Applicant to purchase for the site. This model requires the vehicle operator to pull into an open bay where sonar measures the car for a "touchless" high-pressure wash with a number of [N.T.

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cycles: wash, polish, sealer, spot-free rinse and blow dry. [N.T. 5/10/07, pp. 94-95] Mr. Martelli stated that, in order to be a "viable" operation, the car wash would have to service 1500-1700 vehicles per month. [N.T. 5/10/07, p. 104] He estimated that, weather permitting, approximately 65% of car washes are performed on Saturday and Sunday. [N.T. 5/10/07, p. 112] He expected that customers would wait in line for up to 35-40 minutes in order to use the car wash, with the line being 5-6 vehicles long. [N.T. 5/10/07, pp. 108, 113] At the conclusion of Mr. Martelli's testimony, the Board granted the Applicant a continuance to address the issues raised during Mr. Klos' testimony. B. The Amended Application and 2008 Hearings

At the Applicant's request, there were no additional hearings in 2007. Instead, on January 17, 2008, the Applicant filed an amended application and amended plans. The amended application again sought a special exception to expand the nonconforming use (though reducing the square footage, as explained below). In the alternative, it sought a variance to change to a new nonconforming use. The amended application also sought variances from the prohibition on paving and parking in the front yard, and from the 20foot buffer requirement. The Applicant eliminated its prior request to construct a portion of the circulation drive on steep slopes. 1. The site plan and neighborhood traffic The Board held the initial hearing on the amended application on February 7, 2008. The Applicant re-called Mr. Klos to testify regarding the new proposed site plans. These plans call for a reconfiguration and reduction in the size of the existing building from 2710 square feet to 2509 square feet. Both the retail sales and the car wash would

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be contained within the reconfigured building. The retail space would be 1669 square feet, the car wash would be reduced to a single-bay taking up 540 square feet, and an equipment room would encompass 300 square feet. [N.T. 2/7/08, pp. 9-10; Exhibit A-4, site plan] Two pump islands would be removed, but the Applicant would continue to sell gas from the remaining islands. Eleven parking spaces are shown on the plan: 9 for the retail use (1 per 200 square feet) and 2 for the car wash (1 per 500 square feet). [N.T. 2/7/08, pp. 11-12] 5 The two driveways onto Montgomery Avenue would be reconfigured so that the one on the west side (closest to the intersection with Woodside Avenue) would be enter-only, and the one on the east side (farthest from the intersection) would be exit-only. [N.T. 2/7/08, p. 10] As for the queuing of vehicles for the car wash, Mr. Klos stated that the required 200 feet of "storage area"6 would have to be provided with two merging queue lines. The longer one (163.6 feet) would be along the eastern property line adjacent to the residential condominiums and would lead directly to the car wash entrance. A second line (65.4 feet) would be located directly in front of the convenience store building, between the building and the pump islands. That smaller line would merge into the first. [N.T. 2/7/08, p. 12] Mr. Klos also testified that in order to accommodate vehicular access to the car wash, an area of existing landscaping in the Woodside Avenue front yard and approximately 310 square feet of the required buffer area is proposed to be paved. [N.T. 2/7/08, pp. 22-23, 25]

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Mr. Klos believed that only 8 spaces were required for the retail use, but at 1669 square feet, it requires 9 parking spaces. Code §155-95 J. 6 See Code §155-98.

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Matthew Hammond then testified as an expert in traffic engineering.

Mr.

Hammond's company studied the existing traffic near the subject property and determined that the level of service ("LOS") is "D" at all access points (on a scale of "A" to "F"). The left turn from Woodside onto Montgomery Avenue is LOS "F" [N.T. 2/7/08, pp. 31-32] Mr. Hammond noted that nearly 2000 vehicles travel on Montgomery Avenue past Woodside Avenue in the morning peak hour. Over 2000 vehicles make that trip in the evening peak hour. [N.T. 2/7/08, pp. 36-37] As for vehicles using the subject property, Mr. Hammond estimated that the proposed use would generate 54 new morning peak hour trips (for a total of 106) and 75 new evening peak hour trips (for a total of 133). In other words, the use would generate about one vehicle per minute on the property during the peak hours. [N.T. 2/7/08, pp. 46-48] In order to partially address the problems with LOS at the intersection, Mr. Hammond recommended that the Applicant submit a request to PennDOT to change the timing of the traffic signal. He did not, however, actually study how any such change might affect the LOS. [N.T. 2/7/08, pp. 42-43] In addition, Mr. Hammond did not study the internal traffic circulation on the property that would result from the proposed use, or the effectiveness of the Applicant's proposed stacking lines. The Board requested that the Applicant provide that information at a future hearing. [See, N.T. 2/7/08, pp. 63-71] Before the hearing was adjourned, the Applicant attempted to qualify Tracy Stroschein as an expert in noise studies and air quality. After voir dire, the Board determined that her testimony on air quality would not be accepted as an expert opinion,

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but that she could so testify on noise issues. [N.T. 2/7/08, pp. 79-88] Ms. Stroschein did not appear at any subsequent hearing. 2. On-site traffic circulation Mr. Hammond returned at the next hearing on April 17. In an attempt to address the Board's questions about on-site traffic, Mr. Hammond studied the internal vehicular traffic at a site in Lionville, Chester County. That site consisted of a 3200 square-foot convenience store, 10 gasoline fueling stations, and a single-bay car wash. [N.T. 4/17/08, pp. 7-8] Mr. Hammond performed six vehicle counts on six days in March and April, tracking which elements (gas, retail, car wash) the occupants of each vehicle used. He applied the percentages of those customer uses to the anticipated traffic on the subject property and concluded that there would be 19 trips (10 vehicles) on the property to use the car wash (alone or in combination with other services) in the typical peak hour. Using an average car length of 20 feet, Mr. Hammond concluded that even if all 10 vehicles entered the property at the same time for a car wash, they could be accommodated in the 200-foot stacking line. [N.T. 4/17/08, pp. 8-11; Exhibit A-7] Mr. Klos then testified regarding the proposed circulation of on-site vehicles. He stated that while one car is in the car wash, 10 vehicles can be stacked in the two merging queue lanes. [N.T. 4/17/08, pp. 28-29; Exhibit A-8, site stacking exhibit] Up to 8 vehicles can be located at the multi-product dispenser islands. Eleven vehicles could occupy parking spaces on the property. Assuming three spaces for employee vehicles, Mr. Klos concluded that 26 customer vehicles could be on the property at any one time. [N.T. 4/17/08, pp. 30-31]

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A number of potential conflicts with pedestrians and with other vehicles emerged during Mr. Klos' testimony. In order for customers parked in the 9-space parking area at the rear of the property to enter the convenience store, they would have to cross in front of the traffic exiting the car wash on their right. [N.T. 4/17/08, p. 32] On their left are two full-access driveways from Woodside Avenue from which vehicles could enter the property into the customers' path. [N.T. 4/17/08, p. 33] Convenience store customers walking from their vehicles at the pump islands would have to cross the path of the shorter queue line. They would also be in the path of vehicles of car wash customers entering the queue line from any of 3 different driveways (2 on Woodside Avenue, 1 on Montgomery Avenue). [Exhibit A-8] In addition, vehicles that leave the car wash and want to exit onto Montgomery Avenue (without exiting first onto Woodside Avenue and waiting for the traffic light) would have to traverse the site, pass in front of the Montgomery Avenue entrance driveway, pass the pump islands and then exit from the eastern Montgomery Avenue driveway. [N.T. 4/17/08, p. 39] Mr. Klos acknowledged that vehicles traveling on Montgomery Avenue would more likely than not use the Montgomery Avenue entrance driveway to access the site, rather than turn at Woodside and use one of those driveways. And those entering vehicles would encounter any vehicles traversing the site to exit on Montgomery Avenue. [N.T. 4/17/08, p. 40] Vehicles that use the multi-product dispensers and also want to use the car wash (the Applicant's stated desire), would have to wait at the dispenser for an opening in the queue line, or traverse the entire site to get to the end of the line on busy days. The Applicant does not intend to erect any barriers to prevent vehicles from entering the car

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wash line from the product dispensers. [N.T. 4/17/08, pp. 45-47] If the line is full and the gas customer wants to join it, he would have to pull forward and make a back-up "kturn" or wait at the pump until there is enough room in the line. [N.T. 4/17/08, pp. 47-48] 3. Air quality and noise The final hearing on the amended application was held on June 5. Robert G. Richardson, P.E. testified regarding the projected effects of the proposed use on air quality and noise in the neighborhood. Mr. Richardson has testified as an expert over a dozen times on noise analysis, but only on one previous occasion as an expert in air quality. [N.T. 6/5/08, p. 10] He has taken ambient readings and done modeling for noise analysis, but he has only done modeling for air quality analysis. [N.T. 6/5/08, pp. 10-11] To assess the air quality impacts from the proposed use in this matter, Mr. Richardson did not even do a computer model. He simply relied on an existing study done by PennDOT for the Plymouth Meeting Interchange of the Pennsylvania Turnpike. That study predicted the air quality impacts on the surrounding neighborhood (in terms of carbon monoxide emissions in parts per million) from the vehicles using the Interchange. Mr. Richardson then compared the Interchange to the subject property. He concluded that if the far greater number of vehicles using the Interchange did not have an adverse impact on the air quality of the neighborhood, that would hold true for the vehicles using the subject property. [N.T. 6/5/08, pp. 13-14] When questioned about this methodology, Mr. Richardson acknowledged that ambient air quality varies from location to location, based on a number of factors including topography, ground surface, traffic concentration and natural features. He did not specifically account for those variables when comparing the Interchange with the

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subject property, but accepted the baseline air quality levels from the Plymouth COPAM (the state air monitoring system) station. [N.T. 6/5/08, pp. 44-46] Although there are differences between that station and the subject property, Mr. Richardson felt that since both are dealing with CO emissions from vehicles, the PennDOT study provided a valid comparison. He also acknowledged, however, that emissions on a site that is constrained by trees and buildings (like the subject property) would be concentrated in a way that emissions on a wide open highway (like the Interchange) would not. [N.T. 6/5/08, pp. 46-47] He did not account for that in his opinion. [Id.] Mr. Richardson also

acknowledged that vehicles idling in line for the car wash (as opposed to driving through the Interchange) would increase carbon monoxide levels, but not having done a model, he did not know to what extent. [N.T. 6/5/08, pp. 41-42] In fact, he could have actually performed ambient air quality monitoring on the subject property, but his company does not own the equipment to perform the monitoring and he believed it would be "cost prohibitive." [N.T. 6/5/08, pp. 47-48] Mr. Richardson's methodology to evaluate potential noise effects from the proposed use was a little different. Like his colleague Mr. Hammond, he studied a car wash that he believed was similar to the one contemplated for the subject property. He took readings of the noise levels at distances of 40 feet and 80 feet to simulate the distances to the property lines on the subject site. He then compared the readings to the limits in the Lower Merion Noise Ordinance. Code §§105-1, et seq. [N.T. 6/5/08, pp. 16-19] At a distance of 40 feet, the noise from the car wash exceeded the Township limits at three frequency bands. At a distance of 80 feet, the noise exceeded the Township limit at one frequency band. [N.T. 6/5/08, pp. 19-20]

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In order to mitigate the effects of the noise, Mr. Richardson recommended that the Applicant: (1) operate only from 7 a.m. to 11 p.m., (2) improve the fencing on the border with the residential neighborhood, and (3) reduce the pressure of the undercarriage wash. [N.T. 6/5/08, pp. 26-27] While he believed that the proposed car wash could comply with the Noise Ordinance by reducing the water pressure, Mr. Richardson did not do any quantitative analysis to substantiate that belief. And he was not familiar with any data from the manufacturer to support his opinion. [N.T. 6/5/08, pp. 27-28, 30, 52]7 He also did not consider the prevailing wind direction on the property, which he admitted could have an impact on noise levels for the adjacent neighbors. [N.T. 6/5/08, p. 52] He agreed as well that a fence would not mitigate the effects of noise on the second floor balconies of those neighbors. [N.T. 6/5/08, p. 39] 4. The purported need to add a car wash Robert Fritsch, the operator of the service station since 1969, then testified regarding the performance of the business. He stated that unless the station is converted to a car wash and convenience store, it would eventually close. [N.T. 6/5/08, p. 65] He claimed that the business currently generated no gross profit, having last generated a profit in 2004. [N.T. 6/5/08, pp. 77-80] He did not, however, provide any testimony or evidence as to how the proposed uses would render the business profitable (or viable). [E.g., N.T. 6/5/08, p. 78] Applicant closed its case with Ken Frye, who provided more precise figures for the square footages of the proposed uses that would make up the 2509 square-foot building. [See N.T. 6/5/08, pp. 84-85; Exhibit A-12] He also reiterated his belief that

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Applicant stated that the manufacturer's specifications could be provided. [N.T. 6/5/08, pp. 28-29] They were not produced.

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about 88% of gas stations offer a convenience store, though just 8% offer a convenience store and car wash. [N.T. 6/5/08, p. 87] As was the case at the initial hearing in 2007, Mr. Frye testified that car washes are more profitable than convenience stores, but he did not quantify the profitability. [N.T. 6/5/08, p. 103] 5. The opposition Several neighbors testified in opposition to the amended application. They all identified the existing traffic congestion at Woodside and Montgomery Avenues as a significant problem. Maryann George introduced photographs of an accident near the property. [N.T. 6/5/08, pp. 106-121] The neighbors also described their experiences with the congestion of vehicles using the other convenience stores and stand-alone car washes nearby. Richard Sheridan also described the neighbors' concerns about the noise and fumes that the operation would likely generate. [N.T. 6/5/08, p. 107] After carefully considering all the evidence and weighing the testimony of the witnesses, the Board denies the amended application. OPINION The Lower Merion Zoning Ordinance permits nonconforming uses of buildings and land to remain, but they can expand only by special exception. Code §§155-99 A and B. Expansions are limited to 25% of the square footage (in building area and/or lot area) devoted to the use when it became nonconforming or on March 20, 1985, whichever is later. Code §155-99 B(2). But a nonconforming use cannot be changed, unless it is changed to a use that is permitted in the zoning district. Code §155-99 C. The Applicant in this matter has requested a special exception to expand the nonconforming gas station use. In the alternative, it has requested a variance to allow the

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use to be changed to a gas station with a convenience store and car wash. The Applicant has also requested dimensional variances from the applicable parking, paving and buffer regulations. A. The Use is Being Changed

As noted, the Zoning Ordinance protects only the use that existed on the date that the use became nonconforming. See Code §155-99 A; see also, Haller Baking Company's Appeal, 295 Pa. 257, 145 A. 77 (1928). In this case, the protected, lawful nonconforming use of the property is a gasoline service station with the accessory sale of food and beverages.8 The Applicant argues that the car wash should be permitted as of right as the mere continuation of that nonconforming use. The Board disagrees and concludes that the addition of a car wash to the site constitutes a prohibited change in use. Since the 1990s, the Supreme Court has held that the particular classifications in a local zoning ordinance do not control the determination of whether a new use "continues" a nonconforming use or constitutes a "change" in use. Limley v. Zoning Hearing Board of Port Vue Borough, 533 Pa. 340, 625 A.2d 54 (1993); Pappas v. Zoning Board of Adjustment of the City of Philadelphia, 527 Pa. 149, 589 A.2d 675 (1991). Instead, the Board must determine whether the new use is sufficiently similar to the prior nonconforming use. Id. Here the Board finds that the car wash is qualitatively different from the use of the property for a gas station and retail food sales. Accord, Shaner v. Schuylkill County Zoning Hearing Board, 859 A.2d 859 (Pa. Cmwlth. 2004) (nonconforming knitting mill and garment storage

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Applicant occasionally referred to the nonconforming use as "gas station and retail sales." A property's "use" for nonconforming purposes is not to be defined as the sum of its constituent uses. Fiechter v. Zoning Hearing Board of Pennsbury Township, 458 A.2d 616 (Pa. Cmwlth. 1983). In this matter, the nonconforming use is a gasoline service station. The sale of food and beverages has been incidental to that use.

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facility could not add storage of untanned animal hides); Jay-Lee, Inc. v. Municipality of Kingston Zoning Hearing Board, 799 A.2d 923 (Pa. Cmwlth. 2002) (exotic dancers wearing pasties and g-strings were not sufficiently similar to nude dancers); Hager v. West Rockhill Township Zoning Hearing Board, 795 A.2d 1104 (Pa. Cmwlth. 2002) (nonconforming recreational campground could not be converted to campsite for long-term rental); See also, Ryan, Pennsylvania Zoning Law and Practice §7.6.3A. The testimony showed in many ways (not the least of which are the different impacts) that the Applicant's addition of a car wash to the site would be a change in use, not a continuation or natural expansion of the existing nonconforming use. The operation of the car wash itself is clearly different than the operation of the existing gas station. The physical layout of the existing building will be substantially altered to accommodate the car wash. [Exhibit A-12] The process is different from that employed at the gas station and will require the purchase of specialized equipment. See, Mignatti Appeal, 403 Pa. 144, 168 A.2d 567 (1961) (nonconforming quarry and stone crushing operation cannot add a bituminous concrete plant, as the process is entirely different). The new equipment will include high pressure water sprays and blow dryers that will generate noises unlike the existing uses in both quality and loudness. The users of the car wash will be required to line up in a queue, their engines idling for up to 40 minutes. The process and operation of the car wash is thus qualitatively different than the operation of the gasoline service station. The retail sales area is also proposed to be made substantially larger – increasing in size nearly ten times from 150-200 square feet to 1669 square feet. [Cf., N.T. 6/5/08, p. 80 and Exhibit A-12] Gross revenue from retail sales currently represents a mere 2% of the gas station's business. Applicant plans to make the expanded convenience store a destination in

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itself, with gross revenues expected to be around 12 percent. The expansion of what is now a mere limited accessory retail use into a convenience store is also a prohibited addition of a new use. Accord, Fiechter v. Zoning Hearing Board of Pennsbury Township, 458 A.2d 616 (Pa. Cmwlth. 1983) (gas station's plan to eliminate vehicle repair and add a convenience store is a change in use). Relying on Novello v. Zoning Board of Adjustment, 384 Pa. 294, 121 A.2d 91 (1956), the Applicant also claims that the car wash should be permitted as accessory to the gas station. There are several problems with that claim. First, the Applicant did not prove that the car wash is accessory. There was no evidence that the car wash business would be incidental to the sale of gasoline or food products. "Incidental" requires proof that the car wash would be dependent on the property's principal use as a gas station. Southco, Inc. v. Concord Township, 552 Pa. 66, 713 607 (1998). Here, the Applicant proved the reverse – its witnesses maintained that the viability of the service station is dependent on the car wash. [E.g., N.T. 6/5/08, pp. 65-66] In addition, the Applicant did not prove that a car wash is customarily incidental to a gas station and convenience store. To the contrary, Mr. Frye stated that car washes are generally not found with gas stations and convenience stores in Pennsylvania. [N.T. 5/10/07, pp. 60-61, 64] Moreover, where a new and different business is added to a nonconforming use, it cannot be justified as merely accessory. Mignatti Appeal, supra. The Commonwealth Court's discussion in IMS America, Ltd. v. Zoning Hearing Board of the Borough of Ambler, 503 A.2d 1061 (Pa. Cmwlth. 1986) is also instructive on this issue. There, the Court reversed a zoning board's grant of permission to a

nonconforming gas station operator to add a car wash as an extension of the nonconforming

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use. In criticizing the zoning board's decision, the Court noted that an accessory use is not required to be allowed as an extension of a nonconforming use. The Court also stated that, contrary to the assertion in the Applicant's memorandum: Novello does not stand for the proposition that a car wash is accessory to a gasoline service station for the purposes of the extension of the existing nonconforming use of a gasoline service station by the erection of a car wash. 503 A.2d at 1065 (emphasis supplied). In sum, the proposed addition of a car wash and the expansion of retail sales into a convenience store are not the lawful continuation of the existing nonconforming gasoline station, but represent a prohibited change in use. B. The Applicant Failed to Prove the Elements of a Special Exception

Applicant requests, in the alternative, that the car wash be permitted by special exception as an expansion of the nonconforming use. Code §155-99 B. The basis for this request is unclear. The first application requested permission to construct a new commercial building on the property to house the car wash. That increase in square footage of building area devoted to the purported nonconforming use is indeed permitted only by special exception under Section 99 B. However, the Applicant later amended its application to only utilize the existing building (with a reduced square footage at that) for all the proposed uses. At the subsequent hearings, the Board questioned the need for relief if the square footage of the area devoted to the use was not being increased, but decreased. [N.T. 2/7/08, pp. 14-18] Certainly the use could not be changed without a variance even if the area of the use were reduced, but a special exception is required only if the area of the nonconforming use is expanded.

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Applicant responded at the hearing that the "nature" of the nonconforming use was proposed to be changed [N.T. 2/7/08, p. 18], the implication being that the addition of a car wash was a natural expansion of the nonconforming gas station in response to the dictates of business. [See Applicant's post-hearing memorandum, p.4] Moreover, Mr. Klos testified that two small areas of the property that are currently grass would be paved and used for vehicle circulation for the car wash. That is technically an expansion of the area devoted to the use, triggering the special exception requirement. The Board has already determined in Section A of this opinion that the proposed use constitutes a prohibited change in nonconformity. Whether the area of the use can be expanded by special exception is, therefore, moot. In the interests of judicial economy, however, the Board will evaluate the Applicant's special exception request. A special exception in a zoning ordinance is not really an "exception." It is a use permitted where the conditions detailed in the zoning ordinance are found by the Board to exist: The rules that determine the grant or refusal of the exception are enumerated in the ordinance itself. The function of the board when an application for an exception is made is to determine that such specific facts, circumstances and conditions exist which comply with the standards of the ordinance and merit the granting of the exception. Kotzin v. Plymouth Township Zoning Board of Adjustment, 395 Pa. 125, 127-128, 149 A.2d 116, 118 (1959). It is the burden of an applicant to demonstrate full compliance with all the standards and criteria in the ordinance. Elizabethtown/Mt. Joy Associates, LP v. Mount Joy Township Zoning Hearing Board, 934 A.2d 759 (Pa. Cmwlth. 2007).

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The Zoning Ordinance contains a number of standards applicable to the Applicant's special exception request: 1. 2. 3. the expansion is limited to 25% of the area devoted to the nonconforming use; Code §155-99 B; a 200-linear foot vehicle storage area for the drive-through car wash must be provided; Code §155-98; the allowance of the special exception must not be contrary to the public interest, which requires consideration of: a. and b. c. d. schools e. 4. 5. other effects on the public health, safety, morals or welfare; Code §§155-114 A and C changes in traffic conditions, drainage, air quality, noise levels, natural features of the land, neighborhood property values neighborhood aesthetic characteristics being in accordance with the Township Comprehensive Plan provide the required parking adverse effects on public services and utilities such as water, sewer, refuse collection, police and fire protection, and public

paving and parking in the front yard is prohibited; Code §155-114 D(1) a 20-foot buffer area along the full length of each side and rear lot line is required; Code §155-114 D(2).

The Applicant's expansion of the traffic circulation area for the car wash is within the 25% limitation on expansion. The Applicant also plans to provide 200 linear feet of vehicle storage. However, the Applicant's paving and parking in the front yard of Woodside Avenue is prohibited by Section 114 D(1). The paving and vehicle circulation in the required 20-foot buffer is prohibited by Section 114 D(2).9 Because Applicant's plans fail to meet these requirements, the special exception will be denied.
9

The Applicant has requested a variance from these requirements, which for the reasons discussed below will be denied.

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In addition, the Applicant failed to sustain its burden of proof on the specific public injury criteria set forth in Section 114 C. The Applicant claims that it was the objecting neighbors who had the burden to prove that the proposed expansion would have an extraordinary adverse impact. That claim fails to take into consideration the particular provisions of the Lower Merion Zoning Ordinance. In point of law, the Zoning Ordinance shifts the burden of proof and the burden of presenting evidence on those criteria to the applicant where, as in this case, the objectors claim that there will be an adverse impact. Code §155-114 E. The Commonwealth Court, interpreting a zoning ordinance with nearly identical standards, has held that where the ordinance shifts burdens, the standards regarding increased congestion in the streets, increased danger of fire, overcrowding the land, impairing light and air, adversely affecting transportation, and unduly burdening public facilities remain specific criteria for which the applicant has both the persuasion burden and the presentation duty. Bray v. Zoning Hearing Board of Adjustment, 410 A.2d 909 (Pa. Cmwlth. 1980). Based on Bray, the Applicant bore both the duty of going forward with evidence and the burden of persuasion with regard to the specific criteria in Sections 114 C(1), (3) and (4). Applicant demonstrated that it would provide the required number of parking spaces (though some would be located in a required yard area), but failed to provide sufficient persuasive evidence with regard to traffic, noise and air quality. The noise issue is easily dealt with. Mr. Richardson acknowledged that under the Applicant's plans as submitted, the new car wash would violate the Lower Merion Noise Ordinance. Concomitantly, the plans are contrary to the public interest under Section 114

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C(1) of the Zoning Ordinance. The Board cannot grant the special exception for that reason alone. The Applicant attempted to mitigate the evidence that the proposed use would violate the Noise Ordinance with Mr. Richardson's opinion that the Applicant could meet noise limitations if certain unspecified adjustments were made to the equipment and a fence were erected. The Board gives no weight to that opinion. Mr. Richardson did not measure or test whether any reduction would actually result from either changes in equipment or fencing. He had not even seen the manufacturer's specifications for the equipment, and he agreed that any new fencing would have no beneficial effect for the adjacent neighbors, whose balconies and living areas are on the second floor of the condominium building. [N.T. 6/5/08, pp. 27-28, 30, 39, 52] Indeed, the primary queuing line for the car wash is proposed to be virtually on the property line adjacent to the neighbors' residences. [See Exhibit A-8] And regardless of Mr. Richardson's opinion about what could be done, it was the Applicant's burden to prove that its plans – as submitted – complied with the applicable ordinances, not that the plans could be made to comply in the future. Broussard v. Zoning Board of Adjustment of the City of Pittsburgh, 589 Pa. 71, 907 A.2d 494 (2006); Elizabethtown/Mt. Joy Associates, LP, supra. As to traffic, the Board finds that the Applicant failed to prove that the proposed use would not be contrary to the public interest. The on-site queuing operation, in conjunction with the location of the pump islands, the customer parking areas, and the four access driveways creates a danger to the vehicular and pedestrian traffic on the property. Pedestrians walking from the parking area would encounter vehicles leaving the car wash from one side and vehicles entering the property from the driveways on the other. [N.T.

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4/17/08, pp. 32-33] There is also the danger of ice accumulating in that area from vehicles leaving the wash (the Applicant's testimony regarding a heating system was vague at best). Vehicles exiting the car wash intending to travel east on Montgomery Avenue would have to circle the property, meeting in-coming traffic from the Woodside and Montgomery Avenue driveways, and would then have to travel adjacent to the pump islands, very near the vehicles in the queue line. [N.T. 4/17/08, pp. 39-40] Vehicles using the pumps and intending to access the car wash would, on a busy day, have to perform dangerous back-up and "k-turn" maneuvers at the pump in order to join the queue line. [N.T. 4/17/08, pp. 4748] The property is small, certainly below the market for a business combining these three kinds of commercial operations. The dangerous on-site traffic conditions from these uses are exacerbated by the property's size, its multiple driveways, its remote parking and its merging queue lines. The Board provided the Applicant with a number of opportunities and hearings to address this issue, going so far as to list the particular kinds of testimony that ought to be offered. In the end, all that the gas station operator could say was that on-site accidents would be "no more than normal." [N.T. 6/5/08, p. 74] Even if that were an acceptable standard of public safety, there was no substantial evidence to prove that this expanded commercial enterprise would meet it. The Applicant also failed to prove that the traffic service at the Woodside Avenue and Montgomery Avenue intersection would not be adversely affected, particularly during the peak hours when a new vehicle every minute would be entering the property. [N.T. 2/7/08, pp. 46-48] Vehicles slowing down to enter the site from the preferred Montgomery Avenue driveway would back up traffic into the intersection. Vehicles traveling south or west intending to enter the site from Woodside Avenue would encounter a substantial line of

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northbound traffic on that road. The effects of mitigating efforts (petitioning to change the timing of the signalization, or providing a deceleration lane) were not studied by the Applicant's traffic expert. [N.T. 2/7/08, pp. 42-43] The Board finds that this evidence was insufficient to meet the Applicant's burden on traffic impacts at the intersection. Accord, Elizabethtown/Mt. Joy Associates, LP, supra. The Applicant's evidence on air quality also failed to satisfy its burden on that issue. The only such evidence was Mr. Richardson's opinion that the PennDOT report on the Plymouth Meeting Interchange proves that vehicles idling in the Applicant's car wash queue line would not have an adverse impact on air quality. In basing his opinion solely on a report dealing with another property and use, Mr. Richardson did not take into account the differences between the Interchange and the subject property (or the specifics of the subject property). [N.T. 6/5/08, pp. 44-46] The Applicant's proposed use involves a site

constricted by buildings and vegetation, with vehicles idling for substantial periods of time in a line immediately adjacent to a residential development with overhanging balconies. The Interchange, on the other hand, is an open area, with vehicles traveling through at various speeds, substantial distances from the nearest residence. Mr.

Richardson's methodology did not account for those differences. [N.T. 6/5/08, pp. 46-47] The Board finds that his testimony did not satisfy the Applicant's burden of proof.10 In sum, assuming that the special exception standards apply, because the proposed use will admittedly fail to comply with restrictions on parking and paving in the front yard, will admittedly fail to provide the required 20-foot buffer, and will admittedly violate the Noise Ordinance, the special exception to expand the nonconforming use will be denied.
10

The Board is not suggesting that applicants for special exceptions cannot rely on published reports, statistics, models, or other evidence short of on-site air quality monitoring. In this particular case, however, the Board finds that Mr. Richardson's methodology was flawed to the extent that his opinion could not be considered substantial evidence that the proposed expansion would not be contrary to the public interest.

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The special exception will also be denied because the Applicant failed to meet its burden of proving that the expansion of the use would not have an adverse effect on the public health, safety and welfare in terms of noise and air quality. C. 1. Applicant Failed to Prove the Elements of a Variance

The use variance Anticipating that the addition of a convenience store and car wash would be

viewed as a change in use, the Applicant has requested in the alternative that the new uses be permitted by variance. The Municipalities Planning Code requires an applicant for a variance to prove: (1) That there are unique physical conditions peculiar to the property and that the unnecessary hardship is due to those conditions; (2) That because of the physical conditions, there is no possibility that the property can be developed in strict conformity with the zoning ordinance and that a variance is needed to enable reasonable use of the property; (3) That unnecessary hardship has not been created by the applicant; (4) That the variance is not detrimental to the public welfare; and (5) That the variance is the minimum variance that will afford relief and is the least modification of the regulation at issue. Hertzberg v. Zoning Board of Adjustment of City of Pittsburgh, 554 Pa. 249, 721 A.2d 43, 46-47 (1998); 53 P.S. §10910.2. The reasons for granting a variance must be substantial, serious and compelling, and the party seeking a use variance bears the difficult burden of proving unnecessary hardship. Abe Oil Co. v. Zoning Hearing Board of Richmond Township, 649 A.2d 182 (Pa. Cmwlth.

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1994). An applicant can establish unnecessary hardship for a use variance by evidence that: 1) the physical features of the property prevent the site from being used as zoned; 2) the property can be made to conform only at a prohibitive expense; or 3) the property has no value for any purpose permitted by the ordinance. Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 554 Pa. 249, 721 A.2d 43, 47 (1998). Claims that the ordinance does not allow the "highest and best" use of a property have never been accepted as proving unnecessary hardship. Rather, courts have required that the property cannot be used as zoned or can be made so only at a prohibitive expense. Halberstadt v. Borough of Nazareth, 546 Pa. 578, 687 A.2d 371 (1997). The Applicant failed to prove all the elements required for the grant of a use variance. While attempting to characterize the property as "unique" because it is a

rectangular corner lot with minimal steep slopes, Applicant's engineer admitted that the property could be developed as zoned – for residential use – within the building envelope. [N.T. 5/10/07, pp. 12-13] That precludes the grant of a variance. Id. Applicant attempted to prove that the proposed expansion is necessary for the "continued viability of the business." That standard applies particularly to variances for the expansion of nonconforming uses and was first enunciated by the Commonwealth Court in Jenkintown Towing Co. v. Zoning Hearing Board of Upper Moreland Township, 446 A.2d 716 (Pa. Cmwlth. 1982). It applies where an expanding nonconforming use violates

dimensional regulations (setbacks and percentage limitations) and is based on the constitutional right of a nonconforming use to expand. It does not, however, apply to variance requests to change from one nonconforming use to another. There is no such

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constitutional right to change a nonconforming use to one not permitted in the zoning ordinance. Hanna v. Board of Adjustment, 408 Pa. 306, 183 A.2d 539 (1962). Even if the Board applied the Jenkintown Towing standard, the Applicant failed to meet it. The only testimony on the need to add a car wash for the viability of the business was Mr. Fritsch's. His general, self-serving statement that he earned no gross profit over the last several years is inadequate to sustain the Applicant's burden of proof. Arter v.

Philadelphia Zoning Board of Adjustment, 916 A.2d 1222 (Pa. Cmwlth. 2007). There was no testimony or evidence of the value of the property or the business; nor was there any testimony or evidence regarding the car wash revenue or the extent to which that revenue would make the business viable. The Board remarked at the time that if the Applicant was trying to make a variance case based on economic necessity, Mr. Fritsch's testimony was not sufficient. [N.T. 6/5/08, pp. 75-78] Furthermore, although the Applicant claimed that a variance is necessary for the continued viability of the business, the limited evidence on that issue proved only that the current business is not viable. The Applicant is not seeking to take advantage of a normal increase in a nonconforming business or to sustain the viability of a nonconforming business, circumstances in which variances to expand nonconforming uses have occasionally been granted. Rather, the Applicant is seeking to open an entirely new, profitable commercial business – a car wash. Mr. Fritsch stated that if he could not operate a car wash at the property, his gas station would close – at least in part because his prices for gas are higher than other stations. [N.T. 6/5/08, pp. 65-66]11

11

Suggesting that the hardship is self-inflicted to a certain extent.

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While zoning ordinances cannot force a property owner's nonconforming businesses to close, zoning boards are not required to grant variances to save a property owner's failed nonconforming business. Mr. Fritsch's gas station has failed. The Board will not grant a variance to allow a new commercial use. The testimony and evidence indicates that the proposed use of the property would no longer be a gas station, but would be a car wash with accessory gas and food sales. For all of the above reasons, the request for a use variance to add a car wash to the nonconforming gasoline service station will be denied. Likewise, even though a lesser standard of hardship applies to the requested variances to allow paving, parking and vehicle circulation in the front yard and in the 20foot buffer, they will also be denied. Mr. Klos' testimony that the property can be developed with a dimensionally-conforming residential use precludes any finding of unnecessary hardship. The Hertzberg standard is not a talisman that sanctifies any request to violate dimensional limitations where personal desires dictate. See, e.g., Cardamone v. Whitpain Township Zoning Hearing Board, 771 A.2d 103 (Pa. Cmwlth. 2001) (denying dimensional variance); Camp Ramah in the Poconos, Inc. v. Zoning Hearing Board of Worcester Township, 743 A.2d 1019, 1023 (Pa. Cmwlth. 2000) (same). As the Commonwealth Court summarized in Yeager v. Zoning Hearing Board of the City of Allentown, 779 A.2d 595 (Pa.Cmwlth. 2001): Hertzberg … may also have somewhat relaxed the degree of hardship that will justify a dimensional variance. However, it did not alter the principle that a substantial burden must attend all dimensionally compliant uses of the property, not just the particular use the owner chooses. This well-

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established principle, unchanged by Hertzberg, bears emphasizing in the present case. 799 A.2d at 598 (italicized emphasis by the Court; underlined emphasis supplied). Here, it is only the Applicant's desire to add a car wash business to the property that has generated the request to violate the buffer and front yard requirements. That is not unnecessary hardship, even under the relaxed standards of Hertzberg. For all the foregoing reasons, the Applicant's requested relief will be denied.

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ORDER AND NOW, this 4th day of September, 2008, it is hereby ORDERED that the application of 200 West Montgomery Ave. Ardmore, LLC for a special exception to expand the nonconforming gasoline service station at 116 W. Montgomery Avenue to include a convenience store and car wash is DENIED for the reasons set forth in the foregoing opinion. Applicant's alternative request for a use variance and its request for dimensional variances from the front yard and buffer requirements are DENIED. Chairman Aaron and Members Fox and Brier participating, all voting "aye."

Attest: _________________________________ Michael Wylie Secretary

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