Posted by: Patricia Salkin | May 11, 2016

PA Appeals Court Finds Evidence Failed to Support Board’s Determination that Property Owner Abandoned its Nonconforming Use of Property as a Vehicle Garage

Property owner Itama Development Associates, L.P., appealed from an order of the Court of Common Pleas of Westmoreland County (trial court) denying the consolidated land use appeals of Itama and its tenant, Minuteman Environmental Services, Inc. The School District used the subject garage for storage, fueling, parking and routine maintenance of its school buses and vehicle fleet. These uses continued even after the school building was demolished. Kenneth Lee, an inspector from the Department of Environmental Protection, testified that he visited the Property on five occasions from July to September 2014. He observed roll-off containers, some containing residual waste from drilling activities; empty frac tanks; and other equipment. Lee also observed employees erecting a containment area upon which emptied frac tanks would be placed. On his last two visits, Lee observed a disabled truck parked on the Property that was loaded with residual drill cuttings. Because of this, the trial court affirmed the Rostraver Township Zoning Hearing Board’s order directing Minuteman to cease and desist commercial trucking activities on Itama’s property.

Itama first argued that the Zoning Board’s approval of its occupancy permit at the June 11, 2014, hearing established the law of the case with respect to the lawful nonconforming uses. Specifically, Itama contended that, contrary to the Board’s findings and conclusions in its November 21, 2014, decision, the Board did not limit Itama’s occupancy permit to “diesel fueling and minor maintenance,” nor did it hold that the School District had abandoned its use of the Property for parking vehicles. The court found that the law of the case doctrine is inapplicable here, since the law of the case doctrine applies to rulings within the same case, not to rulings in two separate cases in which the Zoning Board’s holdings are inconsistent. Likewise, Itama’s res judicata argument also failed, as the record did not indicate 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.

The Zoning Board found that the School District abandoned its use of the Property for parking buses and other vehicles in June 2009, more than 12 months before Itama purchased the Property in 2013. However, 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. Therefore, the court found these activities were ongoing less than nine months before Itama applied for its occupancy permit.

Itama’s final assignment of error was that the Zoning Board erred in determining that Minuteman’s use of the Property constituted a change in the prior legal nonconforming use, in violation of Section 195–87 of the Zoning Ordinance. During the relevant time period from 2009 through 2013, the School District used the Property as a vehicle garage for fueling, maintaining and dispatching its buses and vehicles. Thus, the Board erred in concluding that the parking of vehicles for any duration was not ancillary to the School District’s operation of a vehicle garage. Moreover, the Board approved Itama’s application to continue the nonconforming use of the Property as a vehicle garage without limitation, and with full knowledge that Itama’s proposed tenant would essentially be running a trucking operation 12 months a year. Accordingly, the court found that the incidental storage of roll-off boxes and other containers was an increase in the intensity of the prior use, but was 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 Associates, LP v. Zoning Hearing Bd. of the Township of Rostraver, 132 A.3d 1040 (PA Commwlth 1/7/2016)

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