Itama Dev. Assocs., LP v. Zoning Hearing Bd. of Rostraver, 2016 Pa. Commw. LEXIS 34 (Pa. Commw. Ct. 2016).

At times, a broad view of nonconforming uses is appropriate. For instance, when comparing a garage for school buses and vehicles, including repair bays and fueling equipment, to a use to hold trucks for the oil and gas industry. The use of the property remains the same even if the business using it changes.
Case Details:

A school district had obtained the right to continue, as a nonconforming use, its use of a property as a vehicle garage.  The school purchased a new property, and while it stopped parking its fleet at the other property, it continued to use that property for refueling and maintenance.  The school sold the other property to Applicant who permitted the school to continue to use the property for the same use while the school built a new facility.

Approximately eight months after the school ceased using Applicant’s property, Applicant applied for an occupancy permit proposing a “continuation of non-conforming use and/or structure as [a] vehicle garage.”  The Township’s Zoning Officer rejected the application after determining the school had abandoned the nonconforming use when it stopped storing vehicles at what had become Applicant’s property.  A hearing was held where Objectors opposed Applicant.  The Zoning Hearing Board determined that the use was abandoned by the school and that Applicant’s use was different than the school’s use.  The trial court affirmed.

On appeal, the Commonwealth Court reversed.  The Commonwealth Court determined that Applicant presented sufficient evidence that the school continued to use the property in the nonconforming way – a manner that included parking vehicles on the property.  It was clear that the “activities were ongoing less than nine months before [Applicant] applied for its occupancy permit.”  Moreover, Applicant and the school had a written agreement that the school could continue to use the property as previously used and an email indicated that the school still used the property as a garage.   The use, therefore, was not abandoned.

The Commonwealth Court further determined Applicant’s new use, which included oil and gas industry support such as maintaining transport trucks and the equipment they move, such as “frac tanks,” hauling roll-off boxes, and drill cuttings was sufficiently similar to the schools garage and maintenance center for its buses and other vehicles to constitute a continuation of the nonconforming use.

Date of Decision: 1/7/16

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