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Forever and ever…

by Charles A. Rausch, Esquire (with assistance from Jayne Katherman, legal intern)

Municipalities have a tough time eliminating nonconforming uses.  Although a nonconforming use is not supposed to last forever, it almost seems impossible to get rid of them. The case of Itama Development Associates v. Zoning Hearing Board of Rostraver Township et al., (Pa. Commonwealth Ct., filed January 6, 2016) is another example of how hard it can be to eliminate a nonconforming use.

In this case, the school district owned a parcel of land in the Township that had been used by the school district as a four-bay garage and underground diesel fuel tank. The school district used the garage for fueling, parking and routine maintenance of its school buses.  At some point, the zoning changed that made the school district’s use nonconforming.  In 2009, the school district purchased another property for the storage of its school buses, but continued to use the old facility for refueling and maintenance of vehicles.  In 2013, Itama purchased the property from the school district, and agreed to allow the school district to continue using the property as a bus garage and refueling station.  In 2014, Itama applied for an occupancy permit proposing a continuation of the non-conforming use as a vehicle garage. The Township’s Zoning Officer rejected the application, finding that the School District had abandoned its nonconforming use back in 2009.

Itama appealed to the zoning hearing board arguing that the proposed use of the garage by its prospective tenant would be virtually identical to that of the school bus garage. The zoning hearing board approved Itama’s request to continue the nonconforming use of a vehicle garage without limitation. The Board also sent Itama a letter approving its occupancy permit. Shortly after the Board’s approval, Itama’s prospective tenant withdrew, and Itama leased the property to a new tenant, Minuteman Environmental Services. Minuteman was a commercial trucking operation that served the natural gas drilling industry.

The township then started receiving complaints from nearby residents. The zoning officer issued enforcement notices to Itama and Minuteman, stating that no zoning or occupancy permits had been approved for the storage of Minuteman’s containers and trucks on the property site, and that they must cease and desist from using the property in violation of the zoning ordinance.  Itama appealed again, contending that Minuteman’s operations were the same as those proposed by the initial prospective tenant.

At the zoning hearing, the zoning officer testified that his understanding of the school district’s legal nonconforming use had been impermissibly expanded.  Minuteman was using the property to store roll off containers containing residual waste from drilling activity, empty tanks and other equipment.  Neighboring landowners also testified that in contrast to the school district, Minuteman’s operations occurred at all times of the day, and horns and alarms sounded all the time.  The zoning hearing board held that the school district abandoned its lawful nonconforming use of the property in 2009, more than 12 months before Minuteman began using the Property.  This abandonment by the school district precluded Itama or any tenant from resuming that use years later.  The Board further held that Minuteman’s uses of the Property constituted an impermissible change in the legal nonconforming uses.  As a result of the Board’s findings, it denied Itama’s appeal of the zoning officer’s notice and cease and desist order.  Itama appealed to the trial court, which found that Minuteman’s extended parking of trucks, storage of roll-off boxes, tanks and other containers, along with construction of a containment area, were not similar uses to those of the school district. The trial court denied Itama’s land use appeal.

Upon appeal to the Commonwealth Court, Itama argued that: (1) approval of its occupancy permit formed the law of the case which bound the zoning hearing board; (2) the zoning hearing board erred in determining that the school district’s lawful nonconforming use of the property as a vehicle garage had been abandoned; and (3) the zoning hearing board erred in determining that use of the property constituted an unlawful change in the prior lawful nonconforming use by the school district.

The Commonwealth Court disagreed that the law of the case doctrine was applicable because it was impossible to discern which issues of fact were essential to the zoning hearing board’s first decision to approve a permit for the continuation of non-conforming use as a vehicle garage.  The court could not say whether the zoning board’s first decision approved the parking and storage of vehicles for all time so that the Board was estopped from considering in the second proceeding as to whether such uses had been abandoned.

Second, the Commonwealth Court disagreed with the trial court’s conclusion that the Township carried its burden of proof of an intent to abandon. The zoning ordinance states that nonconforming use shall be considered abandoned when it has been discontinued for a period of 12 months.  The zoning hearing board found that the school district abandoned the use in 2009.  However, Itama produced evidence that clearly showed the school district continued to use the Property as a bus garage and fueling station through 2013, which was less than 9 months before Itama applied for its occupancy permit.  The Township failed to prove the School District’s actual abandonment or intent to abandon the property as a vehicle garage.

Third, the Commonwealth Court disagreed that Minuteman’s use of the property constituted a change in the prior legal nonconforming use.  To qualify as a continuation of a nonconforming use, the current use must be “sufficiently similar to the nonconforming use as not to constitute a new or different use.”  Under the doctrine of natural expansion, a mere increase in the intensity of a use does not justify a finding of a new or different use.  Minuteman’s incidental storage of roll-off boxes and other containers was merely an increase in the intensity of the prior use.  Since it was not wholly dissimilar to the school district’s vehicle garage, the new use was not an impermissible expansion of the prior nonconforming use.

The take away from this case is to make sure that there is written documentation of the extent of a nonconforming use, and any changes to that nonconforming use, so that the municipality can make a strong case as to when a prior nonconforming use has been sufficiently changed to constitute a new or different use.