Posted by: Patricia Salkin | January 25, 2016

PA Appeals Court Finds Commercial Trucking Activities Were a Continuation of a Legal Nonconforming Use

The subject property, a 2.9–acre parcel in Rostraver Township’s B–2 Retail Business District, is owned by the Belle Vernon Area School District. The Property was the site of the School District’s Rostraver High School, and also contained a four-bay garage and an underground diesel fuel tank. The School District used the garage for storage, fueling, parking and routine maintenance of its school buses and vehicle fleet, which continued even after the school building was demolished. Because the School District’s use of the Property predated the Zoning Ordinance, it was a legal nonconforming use under Section 195–82 of the Zoning Ordinance. In 2009, the School District discontinued long-term storage of its buses and vehicles on the Property, but it continued to use the Property for refueling and maintenance. In 2013, Itama Development Associates, L.P., purchased the Property from the School District and agreed to allow the District to continue using the Property as a bus garage and refueling station until its new maintenance facility was complete. In 2014, Itama applied for an occupancy permit proposing a “continuation of non-conforming use and/or structure as a vehicle garage.” The Township’s Zoning Officer, Robert Lahr, rejected Itama’s application, finding that the School District had abandoned its nonconforming use in 2009. The Court of Common Pleas of Westmoreland County then affirmed the Rostraver Township Zoning Hearing Board’s order directing Minuteman to cease and desist commercial trucking activities on Itama’s property.

As to Itama’s res judicata argument, in the June 11, 2014 hearing the Board approved, without limitation, Itama’s request to continue the School District’s nonconforming use of the Property as a vehicle garage with regard to its prospective tenant, KMI. In July 2014, the Zoning Officer observed a different tenant, Minuteman, using the Property and concluded that Minuteman was not operating in compliance with the occupancy permit. The court found that the record did not conclusively show that the Zoning Board’s first decision expressly approved the parking and storage of vehicles for all time so that the Board was estopped from considering in the second proceeding whether such uses had been abandoned.

As to the issue of whether Itama abandoned its nonconforming use, the court noted that Itama presented uncontroverted evidence that the School District continued to use the Property through July 2013 for maintaining and fueling its vehicles, activities that necessarily include parking. This was further evidenced by a written agreement between itself and the School District allowing the School District to continue to use the Property as a “bus garage and bus refueling station” after March 15, 2013. Accordingly, the court held that the Township failed to prove either the School District’s actual abandonment of, or intention to abandon, its use of the Property as a vehicle garage: including the fueling, maintaining, parking and dispatch of vehicles. Moreover, Minuteman’s incidental storage of roll-off boxes and other containers was found to be an increase in the intensity of the prior use, but not sufficiently dissimilar to the School District’s vehicle garage as to constitute an impermissible expansion of the prior nonconforming use. The trial court’s holding was therefore reversed.

Itama Development Assoc., LP v Zoning Hearing Board of the Township of Rostraver, 2016 WL 72822 (PA Commwlth 1/7/2016)


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