In this nonconforming use case out of Westmoreland County, the Commonwealth Court found that use of a legally nonconforming school bus depot could be permissibly changed to a commercial truck depot with incidental storage of roll-off boxes and other containers.

Itama Development purchased a 2.9-acre parcel in Rostraver Township’s B-2 Retail Business District from the local School District in April 2013. The Property had previously been the site of a high school and bus depot, legally nonconforming uses in the B-2 district. The bus depot consisted of a four-bay garage and underground diesel fuel tank. The District had used the depot for storage, fueling, parking, and routine maintenance of its vehicle fleet. In June 2009, the District purchased a new facility for this purpose and discontinued its long-term storage of vehicles on the Property. However, it continued using the depot for refueling and maintenance. After purchasing the Property Itama allowed the District to continue using the site as a bus garage and refueling station until its new facility was completed.

In April 2014, Itama applied for an occupancy permit to allow a tenant to use the garage to store, maintain, and refuel trucks for providing water to gas drilling operations. Their application maintained this was a continuation of the previous non-conforming use.  The Township Zoning Officer rejected the application, concluding the District had abandoned its nonconforming use in 2009. In June 2014 the Zoning Hearing Board (ZHB) approved Itama’s occupancy permit.  Shortly thereafter the proposed tenant withdrew from the deal and a new tenant was found. The Zoning Officer then issued identical violation notices to the new tenant, claiming the new tenant’s temporary storage of roll-off boxes and frac tanks deviated from the existing nonconforming use.

The ZHB held that the District had abandoned its nonconforming use of parking vehicles in 2009, and thus Itama was prohibited from resuming that use. It further found that it was an impermissible change in the legal nonconforming use to use the Property for anything but fueling and minor vehicle maintenance. Itama appealed. The Court of Common Pleas of Westmoreland County denied Itama’s appeal and affirmed the ZHB’s decision. Itama again appealed.

The Commonwealth Court denied Itama’s res judicata arguments that the ZHB was precluded from relitigating any aspect of the legality of the nonconforming use in the second proceeding because it had been finally decided in the June 2014 decision. However, it found that the Township had failed to prove that the District had actually abandoned or intended to abandon its use of the Property as a vehicle garage. A “vehicle garage,” the court concluded encompassed the fueling, maintaining, parking, and dispatch of vehicles. Finally, it found that while the incidental storage of roll-off boxes and other containers was an increase in the intensity of the prior use, it was not sufficiently dissimilar from the “vehicle garage” use to constitute an impermissible expansion of the prior nonconforming use.

Click here to read: Itama Development Associates, LP v. ZHB of the Twp. of Rostraver, 985 C.D. 2015 (Pa. Cmmw. Ct. Jan. 7, 2016).

Edited by:

Sivertsen_BLOG     Zachary A. Sivertsen, Esq.