       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Zippy’s Car Wash                       :
(Triple C Development)                 :
                                       :
            v.                         :   No. 35 C.D. 2019
                                       :   Argued: November 14, 2019
Zoning Hearing Board                   :
of Township of Ridley                  :
and Township of Ridley                 :
                                       :
Appeal of: Township of Ridley          :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ELLEN CEISLER, Judge
        HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                       FILED: January 6, 2020


            The Township of Ridley (Township) appeals from the order of the
Court of Common Pleas of Delaware County (common pleas), dated
December 11, 2018. Common pleas reversed the decision of the Zoning Hearing
Board of the Township of Ridley (Board), which denied the application of Zippy’s
Car Wash—Triple C Development (Applicant) for zoning relief to operate a car
wash in the Township. We now vacate and remand.
                             I. BACKGROUND
            On August 9, 2017, Applicant entered into a ground lease with Harper
Associates (Owner) for property located within the Township at 201 Kedron Avenue
(the Property). Applicant seeks to construct and operate an automated car wash on
the Property, which is adjacent to an existing Wawa gas station and convenience
store and half a block from an existing car wash. The Property is split zoned, with
approximately 60% of the Property located in the Township’s C-2 General
Commercial District (C-2 district) and approximately 40% located in the
B (Residential) District (residential district).
              On September 28, 2017, pursuant to Owner’s authorization, Applicant
applied to the Board for zoning relief. First, Applicant asked the Board to make a
determination that its proposed car wash use is permitted under Section 325-32(G)
of the Township of Ridley Zoning Ordinance (Ordinance). Section 325-32 of the
Ordinance, which is part of Article VII of the Ordinance governing the C-2 district,
provides, in relevant part:
              A structure may be erected or used and a lot may be used
              or occupied for any of the following uses and no other:
                 ....
                 G. Uses which, in the opinion of the Zoning Hearing
                 Board, are of the same general character as those listed
                 as permitted uses[1] and which will not be detrimental
                 to the intended purpose of this district.

       1
          Section 325-32 of the Ordinance expressly permits uses in two ways. First,
subsection (A) incorporates by reference “[a]ny principal use permitted in the C-1 Neighborhood
Commercial District[].” Such uses incorporated by reference are:
       A. Any use permitted in the C Residential Districts, except single- and two-family
       dwellings, subject to the regulations of the C Residential Districts.
       B. Retail sales shall be conducted only in a fully enclosed building. No sales or
       exposure of goods for sale are permitted outside of the building.
            (1) Food market.
            (2) Drugstore.
            (3) Clothing.


                                               2
     (4) Shoe store.
     (5) Restaurant, but not to include the “drive-in” type.
     (6) Jewelry store.
     (7) Gift shop, florist shop.
     (8) Book store, stationery shop.
     (9) Radio, television and music store.
     (10) Variety store.
     (11) Dry goods and notions store.
     (12) Hardware store, sporting goods.
C. Offices for lawyers, realtors, architects, engineers, tax consultants and similar
professional businesses; offices for industrial and trade union; offices for credit
union and offices for commercial and civic organizations.
D. Medical clinics and offices of doctors, dentists, osteopaths and similar or allied
professions but not including veterinarian establishments.
E. Banks, offices of stock brokers and finance agencies.
F. Offices for nonprofit organizations, social and fraternal associations, political
and religious organizations.
G. Business office of a public utility, transportation, advertising, insurance,
executive and administrative offices of commercial and industrial establishments.
H. Offices of local, state and federal government agencies.
I. Miscellaneous business services such as consumer credit reporting services,
telephone answering services, engineering and art supply dealers.
J. Florist shops, art galleries, specialty shops selling at retail where goods are not
created or stored other than for sale.
K. Mortician and funeral establishments.
L. Studios for musicians, artists, photographers and dancing instruction.
M. Educational instruction and commercial schools.
N. Personal service shops which deal directly with consumers, offices and
establishments, provided that each such use occupies a total floor area of not more
than 4,000 square feet.
     (1) Barber and beauty shops.
     (2) Dry cleaning and laundry pickup shops.


                                          3
            (3) Tailors and dressmaker shops.
            (4) Self-service laundry.
            (5) Finance and loan agencies.
            (6) Medical and dental offices.
       O. Other uses which are similar to the above and subject to the following
       regulations:
            (1) All business establishments shall be retail or service establishments
            dealing directly with consumers. All goods produced on the premises shall
            be sold at retail on the premises where produced.
            (2) All uses in this category shall be subject to approval by the Zoning
            Hearing Board prior to issuance of a zoning permit.
       P. Customary accessory uses and buildings incidental to any of the above permitted
       uses, including the following:
            (1) Advertising signs customarily incidental to any of the permitted uses
            pertaining only to the products or services offered for sale on the premises
            and subject regulation in Article XII of this chapter.
            (2) Fence, subject to regulation in Article XIII of this chapter.
       Q. No permitted use in this district shall include a drive-through or walkup window
       whereby the consumer transacts for goods or services outside of the building.
Second, Section 325-32(B)-(F) of the Ordinance permits:
       B. Any retail business whose principal activity is the sale of new merchandise in
       an enclosed building, including, but not limited to the following:
            (1) Automobile sales, boat sales, motorcycle sales.
       C. Retail sales in which both a workshop and a retail outlet or showroom are
       required (such as plumbing, electrician, interior decorating, dressmaking, tailoring,
       upholstering, photographic reproducing, radio and home appliance and similar
       establishments), subject to the following provision: Not more than 25% of the total
       usable floor area of the establishment shall be used for servicing, repairing,
       manufacturing or processing activities.
       D. Restaurants, tea rooms, cafes and other establishments serving food and
       beverages, except those having the character of a “drive-in” type.
       E. Enclosed theaters, assembly halls, concert halls, and similar places of assembly
       or entertainment.


                                                4
Applicant requested, in the alternative, a use variance permitting the proposed car
wash.
               The Board held a hearing on November 8, 2017. At the hearing,
Applicant’s Chief Operating Officer, Austin Evans (Evans), testified that the
proposed use consists of an automated car wash enclosed in a 115-foot tunnel. Evans
explained that the car wash would operate every day from 8:00 a.m. to 8:00 p.m. and
would be attended by approximately four employees during operation. He also
described the use of the car wash as follows:
               [Customers] pull up to . . . the pay terminals, which is
               where they[] . . . select their wash . . . .
                       Once they pay[,] . . . [they] pull around, where
               another employee will greet them here at the front side of
               the tunnel and guide them onto our conveyor track.
                       As they pull onto the conveyor track, the employees
               will prep[are] the car inside the building, if applicable, and
               start the wash.
                       ....
                       Once [the customers] come to the exit end of the
               tunnel, . . . they pull around to the vacuum area.
                       As you can see on the site plan here, we
               have 18 proposed vacuum spaces in which the customers
               will be available to have free vacuums . . . .



        F. Customary accessory uses and buildings incidental to any of the above permitted
        uses, including the following:
             (1) Advertising signs subject to regulation in Article XII of this chapter;
             provided, however, that such signs shall not detract from the general intended
             purpose of this district.
             (2) Fence, subject to regulation in Article XIII of this chapter.




                                                 5
                   And then . . . they would pull out here, our exit, in
             the shared-access driveway between the car wash and the
             Wawa.

(Reproduced Record (R.R.) at 42-43.)
             Applicant also presented the testimony of John Pettit (Pettit), a
professional engineer licensed in Pennsylvania. Pettit testified that, in his opinion
and experience, the proposed car wash is a commercial use which is of the same
general character as other commercial uses permitted in the Township’s commercial
zoning districts, including the C-2 district.     Pettit identified retail sales and
automobile sales as two uses expressly permitted under the Ordinance which are, he
opined, similar in intensity to the proposed car wash use. He also offered his opinion
that the proposed use is consistent with (1) the C-2 district’s purpose of encouraging
a wide range of commercial functions and (2) the character of the neighborhood and
surrounding uses, including the Wawa and a nearby restaurant.
             In describing the car wash process, Pettit clarified that the payment
terminals and the vacuum areas will be located outside the proposed building: “We
will have access off of th[e] driveway into the queue for the pay kiosk. You then go
into the building, . . . come out, [and] go to the vacuum spaces.” (R.R. at 50-51.)
Finally, Pettit testified that all aspects of the proposed use—with the exception of
one small part of the exit drive—will be located within the portion of the Property
located in the C-2 district.
             Several community members spoke at the hearing, either asking
questions of Applicant’s witnesses or offering their own comments on the
application. Sarkis Gharadaghian, owner of the nearby Ridley Car Wash, expressed
his opinion that the community cannot support two car washes. Tracey Dilossi, who
lives just down the street from the Property, voiced concern about the traffic impacts


                                          6
of the proposed use, but she clarified that she opposed the design of an adjacent
major road rather than the proposed use itself. Lois Moore asked how Applicant
would process wastewater, and Evans explained that any wastewater would be either
transported offsite for treatment or discharged to the sanitary sewer system.
              George Buckley (Buckley), another community member, entered an
appearance and was made a party to the hearing before the Board. He asked several
questions of Evans concerning Applicant’s ability to monitor and accommodate
especially heavy use of the car wash.                  Buckley also pointed out that
Section 325-32(H) of the Ordinance2 appears to prohibit transaction for goods or
services outside of a building, such as would occur at the outdoor pay terminals that
are part of the proposed car wash. The Board acknowledged that the application
entails outdoor transactions but responded to Buckley’s comment by explaining that,
because the car wash is not an expressly permitted use in the C-2 district, the outdoor
transaction limitation does not apply.
              Following the hearing, the Board issued a decision denying the
application and including the following relevant findings of fact and conclusions of
law:
                                     Findings of Fact
              ....
              2.      The [P]roperty is situated within two zoning
              districts, . . . 60% . . . of which lies in the [C-2 district] and
              . . . 40% . . . of which lies within [the residential district].
              3.      [Applicant] wishes the Board to make a finding that
              the proposed car wash use is of the same general character
              as those permitted uses listed at Section 325-32 [of the
              Ordinance,] or in the alternative, that a use variance be

       2
          Section 325-32(H) of the Ordinance provides: “No permitted use in [the C-2] district
shall include a drive-through or walkup window whereby the consumer transacts for goods or
services outside of the building.”

                                              7
             granted because the duel [sic] zoning of the [Property]
             constitutes a unique hardship upon [Applicant].
             ....
             7.     The car wash building would be located entirely
             within the [C-2 district].
             8.     Approximately . . . 40% . . . of the proposed use
             would be within the [residential district].
                                 Conclusions of Law
             1. A car wash use is not of “the same general character”
             as those permitted uses listed at Section 325-32 of the
             Ordinance.
             2. The fact that the proposed site exists within dual zoning
             districts is not a unique topographical and physical
             characteristic peculiar to the [P]roperty to constitute a
             substantial unnecessary hardship to support the approval
             of a use variance for a car wash.

(R.R. at 13-14.) In a memorandum opinion accompanying its decision, the Board
explained its first conclusion of law by citing decisions by Pennsylvania courts
holding that a car wash use is accessory to and of the same general character as an
automotive repair shop, garage, or gasoline service station. Those uses, the Board
observed, are not listed as permitted uses in Section 325-32 of the Ordinance. Based
on their exclusion, the Board concluded that the drafters of the Ordinance similarly
intended to exclude car wash uses from the C-2 district. Regarding its second
conclusion, the Board stated that, under Pennsylvania law, split zoning does not
constitute an unnecessary hardship and does not, therefore, support the grant of a use
variance.
             Applicant appealed to common pleas, arguing that the Board erred in
concluding that a car wash was not permitted by right in a C-2 district and in denying
its alternative request for a variance. Common pleas reversed the Board’s decision



                                          8
and granted all relief necessary for Applicant to pursue the proposed use on the
Property. The Township now appeals to this Court.3
                                          II. ISSUES
                On appeal,4 the Township argues that the Board correctly concluded
that the proposed car wash use is not permitted in the C-2 district under
Section 325-32(G) of the Ordinance, and common pleas erred in concluding
otherwise. The Township also argues that the trial court erred to the extent it granted
variance relief.
                                      III. DISCUSSION
                          A. Section 325-32(G) of the Ordinance
                The Township contends that the Board properly concluded that the
proposed car wash is not “of the same general character” as the uses permitted in the
C-2 district and, therefore, is not permitted in the C-2 district under
Section 325-32(G) of the Ordinance. In support of its argument, the Township
emphasizes the similarity of the proposed use to an automotive service station use
(which is permitted only by special exception) and the stated purpose of the
C-2 district, which is to encourage pedestrian—not automotive—use. In response,
Applicant argues that the Board erred by (1) ignoring unrebutted expert testimony
concerning the proposal’s consistency with the purpose of the C-2 district,
(2) ignoring Pennsylvania law treating a car wash as a generally permitted


       3
           The Board, though named as an appellee, joins in the Township’s brief on appeal.
       4
          “Where a trial court takes no additional evidence in an appeal from a decision of [a zoning
b]oard, this Court is limited to considering whether the board erred as a matter of law or abused
its discretion.” German v. Zoning Bd. of Adjustment, 41 A.3d 947, 949 n.1 (Pa. Cmwlth. 2012).
“A zoning board abuses its discretion if its findings are not supported by substantial evidence.”
Arter v. Phila. Zoning Bd. of Adjustment, 916 A.2d 1222, 1226 n.9 (Pa. Cmwlth.), appeal denied,
934 A.2d 75 (Pa. 2007).

                                                 9
commercial use, and (3) applying the Ordinance in a manner that impermissibly
excludes car washes from the Township.
             At the outset, we note that the parties argue that we should defer to the
Board’s interpretation of the Ordinance or, alternatively, that we should liberally
construe the Ordinance to allow the broadest possible use of the Property. While
those interpretive principles are well established in Pennsylvania law when
interpreting ambiguous ordinances or statutory provisions, we see no ambiguity in
the language of Section 325-32(G) of the Ordinance. The language is not susceptible
of two or more reasonable interpretations, nor is it “vague, uncertain, or indefinite.”
Kohl v. New Sewickley Twp. Zoning Hearing Bd., 108 A.3d 961, 968 (Pa.
Cmwlth. 2015). Nor do the parties assert that this language is ambiguous or unclear.
Instead, the language of Section 325-32(G) is clear: it requires the Board to
determine whether a proposed use is of the same general character as permitted uses
and, therefore, is permitted within the C-2 district. Thus, in our estimation, the
parties’ arguments are not concerned with the meaning of the operative language but
with whether the Board properly exercised its authority under Section 325-32(G) to
determine that the car wash use is not “of the same general character” as the
permitted uses. Accordingly, we will not apply the interpretive presumptions that
the parties propose.
             In reviewing this very Ordinance, we have held that whether a use is
“of the same general character” as permitted uses presents a question of law. See
Cook v. Zoning Hearing Bd. of Twp. of Ridley, 408 A.2d 1157, 1158-59 (Pa.
Cmwlth. 1979). In Cook, the Board denied an application for an outdoor used car
sales lot within the C-2 district on the ground that it was not “of the same general
character” as the uses listed as permitted within the district, such as the retail sale of


                                           10
new merchandise within an enclosed building. There, as here, common pleas
reversed the Board’s denial, and the Township appealed to this Court. Although the
provisions of the Ordinance appear to have been renumbered since Cook, the
language at issue is identical to the operative language here. Examining what would
later become Section 325-32(G) of the Ordinance, we wrote:
             Whether or not the “same general character” uses allowed
             by Section [325-32(G)] are merely permitted uses or uses
             allowed by special exception, the question of whether an
             open air used car lot is a use of the same general character
             as a retail business whose principal activity is the sale of
             new merchandise in an enclosed building . . . persists. The
             question is one of law. We hold that an open air used car
             lot is not of the same general character as a retail business
             conducted in an enclosed building. The used car lot was
             not, therefore, either a permitted use or a use permitted by
             special exception.

Id. (emphasis added) (footnote omitted). We also have held that, where an ordinance
requires that a proposed use be of the “same general character” as other permitted
uses, the ordinance “does not require the [p]roposed [use] to have the ‘same
character,’ but rather a similarity to other uses permitted by right in the [zoning
district].” MarkWest Liberty Midstream & Res., LLC v. Cecil Twp. Zoning Hearing
Bd., 102 A.3d 549, 558 (Pa. Cmwlth. 2014) (emphasis added) (discussing ordinance
allowing uses “of the same general character”), appeal denied, 113 A.3d 281 (Pa.
2015).
             Turning to the instant case, it appears that the Board’s decision is
inadequate in at least two respects. First, although the Board found that the car wash
building would be entirely located within the C-2 district, it also found that
“[a]pproximately . . . 40% . . . of the proposed use would be within the [residential
district].” (R.R. at 14.) This latter finding is plainly inconsistent with testimony and


                                          11
documentary evidence, showing that the residential portion of the Property will be
virtually vacant, with only a small portion of the exit drive being located in the
residential district. (R.R. at 52; Original Record (O.R.), Application, Ex. 8.)
             Second, and most importantly, the Board did not engage in adequate
legal analysis of whether the proposed car wash is of the same general character as
the permitted uses. Sections 325-25 and 325-32 of the Ordinance list dozens of uses
permitted by right in the C-2 district, including retail sales establishments (markets,
stores, shops, new vehicle sales), personal service establishments (restaurants,
offices, clinics, banks, laundries), and social and cultural venues (schools, studios,
galleries, theaters). Rather than analyzing the similarities between these uses and
the proposed car wash, the Board focused narrowly on Pennsylvania case law
describing car washes as accessory uses to automobile repair shops and gas stations.
Based on that narrow inquiry, the Board determined that, because repair shops and
gas stations are not permitted as of right in the C-2 district, car washes must be
similarly excluded because “what is not given is the same as what is denied.” (R.R.
at 16.) That reasoning might be a relevant part of the inquiry into whether the
proposed use is of the same general character as permitted uses, but it certainly is
not sufficient on its own to answer that question.
             In other words, Section 325-32(G) of the Ordinance requires the Board
to determine the similarity of the proposed use to the permitted uses, not only its
similarity to uses which are not permitted, which was the Board’s sole focus here.
Although the Board gave a brief summary of the listed permitted uses in
Section 325-32(G), it failed to recite any of the uses listed under Section 325-25
(which are incorporated by reference in Section 325-32(A)), and it failed to engage
in any discussion whatsoever of how the car wash use, as proposed, is similar to or


                                          12
different from the listed permitted uses. Moreover, the Board’s decision addressed
car wash use in general without discussing the features of the proposed use in
particular, including the fact that much of the use will occur within the enclosed car
wash building. It is not clear how the Board could have made the determination
required by Section 325-32(G) without (1) a comprehensive, exhaustive review of
all the listed permitted uses, including those incorporated by reference, and (2) a
fact-intensive analysis of how the proposed use is similar to, or different from, the
permitted uses. The Ordinance authorizes the Board—rather than common pleas or
this Court—to make that determination in the first instance, including by making
findings of fact with respect to the specific proposed use as it compares with the
listed permitted uses. Accordingly, remand is appropriate to allow the Board to
make such findings and perform a sufficiently thorough analysis.5
                                     B. Variance Relief
               Given that the Board must remake its determination under
Section 325-32(G) of the Ordinance, we need not review its determination regarding
variance relief at this time. We note, however, that the Board mischaracterized the
relevant variance issue in this matter.              In its decision, the Board described
Applicant’s request for variance relief as a request “that a use variance be granted
because the duel [sic] zoning of the [Property] constitutes a unique hardship upon

       5
          Applicant, though not now asserting a claim of exclusionary zoning, argues that
Section 325-32(G) of the Ordinance permits the proposed car wash because to apply that section
otherwise would render the Ordinance de facto exclusionary and, therefore, invalid. We are not
persuaded by Applicant’s argument. First, the issue of whether the Ordinance is exclusionary is
not before the Court at this time. Second, Applicant has presented no evidence of such a complete
exclusion, apart from counsel’s statement at the hearing that “no zoning district in the
Township . . . expressly permits a car wash use,” and Pettit’s testimony that, to his knowledge, the
Ordinance does not expressly permit a car wash in any zoning district. (See R.R. at 48, 71.) That
is not to say that Applicant, through another action, cannot establish that the Ordinance is
exclusionary. Furthermore, nothing in our opinion should be interpreted as addressing that issue.

                                                13
[Applicant].” (R.R. at 14 (emphasis added).) The Board focused its analysis solely
on the split-zoned nature of the Property without discussing whether Applicant had
identified other sources of hardship. On appeal, the Township also focuses on the
split zoning issue, arguing that Applicant should have sought a use variance in order
to use the residential portion of the Property even if Section 325-32(G) permits the
use. In contrast, the record establishes that Applicant sought, as an alternative to
approval under Section 325-32(G), “a variance from Section 325-32 to permit a car
wash in the [C-2 district],” without regard to the split-zoned nature of the Property.
(R.R. at 25 (emphasis added).) Thus, Applicant requests a use variance allowing the
proposed use on the Property only in the event that Section 325-32(G) does not
permit the car wash use as of right.
              If, on remand, the Board concludes that Section 325-32(G) of the
Ordinance does not permit the proposed car wash use, the Board must then consider
Applicant’s alternative request for a use variance. That analysis should not focus
narrowly on split zoning, but should assess all of the requirements for use variances
set forth in Section 910.2 of the Municipalities Planning Code,6 including
demonstration of an unnecessary hardship due to the physical conditions or
circumstances of the Property. See generally Taliaferro v. Darby Twp. Zoning
Hearing Bd., 873 A.2d 807, 812 (Pa. Cmwlth.), appeal denied, 887 A.2d 1243 (Pa.
2005) (discussing standard for demonstrating entitlement to variance relief). On the
other hand, if the Board concludes that Section 325-32(G) of the Ordinance permits
the proposed use, then the Board need not consider variance relief, as Applicant
sought that relief only as an alternative to approval under Section 325-32(G).


       6
        Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, 53 P.S.
§ 10910.2.

                                               14
                                IV. CONCLUSION
             For the foregoing reasons, we vacate common pleas’ order and remand
this matter to common pleas with direction to remand to the Board for proceedings
consistent with this opinion.




                                         P. KEVIN BROBSON, Judge

Judge Fizzano Cannon did not participate in the decision of this case.




                                        15
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Zippy’s Car Wash                         :
(Triple C Development)                   :
                                         :
            v.                           :   No. 35 C.D. 2019
                                         :
Zoning Hearing Board                     :
of Township of Ridley                    :
and Township of Ridley                   :
                                         :
Appeal of: Township of Ridley            :



                                    ORDER


            AND NOW, this 6th day of January, 2020, the order of the Court of
Common Pleas of Delaware County (common pleas), dated December 11, 2018, is
VACATED, and this matter is REMANDED to common pleas for proceedings
consistent with the attached opinion.
            Jurisdiction relinquished.




                                         P. KEVIN BROBSON, Judge
