Itama Development Associates, LP v. ZHB of the Twp. of Rostraver v. Twp. of Rostraver v. Minuteman Environmental Services, Inc. ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Itama Development Associates, LP, :
Appellant :
:
v. :
:
Zoning Hearing Board of the :
Township of Rostraver :
:
v. :
:
Township of Rostraver :
:
v. : No. 985 C.D. 2015
: Argued: November 16, 2015
Minuteman Environmental Services, :
Inc. :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge1
HONORABLE MARY HANNAH LEAVITT, Judge2
HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION
BY JUDGE LEAVITT FILED: January 7, 2016
Itama Development Associates, L.P., appeals 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.
In doing so, the trial court affirmed the Rostraver Township Zoning Hearing
Board’s (Zoning Board) order directing Minuteman to cease and desist commercial
1
This case was assigned to the opinion writer before December 31, 2015, when President Judge
Pellegrini assumed the status of senior judge.
2
This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
trucking activities on Itama’s property. Because Minuteman’s activities were a
continuation of a legal nonconforming use, we reverse.
Background
The subject Property is a 2.9-acre parcel in Rostraver Township’s B-2
Retail Business District owned, at times relevant to this appeal, by the Belle
Vernon Area School District. Prior to the enactment of the Township’s zoning
ordinance in 1970,3 the Property was the site of the School District’s Rostraver
High School. In addition to the school building, the Property 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. These uses continued even after the school building was demolished.
There is no dispute that, 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.4 In 2009, the School District purchased a former 84
Lumber facility in the Township for the fueling, maintenance and parking of its
vehicle fleet. As of June 6, 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.
3
ZONING ORDINANCE OF THE TOWNSHIP OF ROSTRAVER, Ordinance No. 114 (adopted October 5,
1970), as amended by Ordinance No. 300 (adopted July 25, 1995) (Zoning Ordinance).
4
Section 195-82 states:
Subject to the provisions of this article, a use of building or land existing at the
time of the enactment of this chapter may be continued even though such use does
not conform to the provisions of these regulations for the district in which it is
located.
ZONING ORDINANCE §195-82.
2
On April 3, 2013, Itama 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.
Reproduced Record at 47a (R.R. __). The School District continued to use the
Property until July 2013. Zoning Board Decision at 2.
On April 25, 2014, Itama applied for an occupancy permit proposing a
“continuation of non-conforming use and/or structure as [a] vehicle garage.” R.R.
4a. The Township’s Zoning Officer, Robert Lahr, rejected Itama’s application,
finding that the School District had abandoned its nonconforming use in 2009.
Itama appealed the Zoning Officer’s determination to the Zoning Board.
Itama’s notice of appeal stated that its prospective tenant, Kiester
Miller Investments, LLC (KMI), would provide fresh water to gas well drillers and
operators in southwest Pennsylvania. Itama represented that “[t]he proposed use is
a continuation of a prior non-conforming use. The Property was used as a bus
garage both prior to and after the Township’s zoning ordinance, and the proposed
use is virtually identical.” R.R. 13a. More specifically, Itama described the
proposed use of the Property as follows:
Park approximately 25 water trucks at the site on an
intermittent basis. The trucks are on the road for the majority
of each 24 hour day. The … facility will be used as a central
location for the drivers to park the trucks while they switch out
their personal items and supplies, switch drivers, fuel the
vehicle and prepare for the next trip. This is consistent with the
prior use to store school buses on this property.
No water of any kind will be stored in the vehicles. All water
to be delivered is picked up at an off-site source, and
transported directly to the purchaser. No water will be in the
trucks when at, leaving from or returning to the … site.
3
Minor upkeep and maintenance of the trucks may be performed
while the trucks are at the … site. This would potentially
include fueling, changing windshield wipers and repairing flat
tires (which is consistent with the prior use). Major repairs of
any kind are sent offsite.
R.R. 14a.
At a hearing before the Zoning Board on June 11, 2014, Itama’s
president, Ron Amati, testified that KMI would use the Property to fuel and
perform “basic maintenance” on vehicles, such as fixing a flat tire. R.R. 78a.
Itama’s counsel represented that KMI would not store vehicles on the Property
other than the occasional, overnight parking of a temporarily disabled vehicle.
Rather, KMI’s trucks would “come in, get fueled, maintained, switch drivers, and
they go back out.” R.R. 96a.
At the conclusion of the hearing, the Board orally approved Itama’s
request to continue the nonconforming use of the Property as a vehicle garage,
without limitation. On June 12, 2014, the Zoning Board sent Itama a letter
approving its occupancy permit; it did not issue a formal decision with findings of
fact and conclusions of law. Shortly thereafter, KMI withdrew from the deal, and
Itama leased the Property to Minuteman Environmental Services, Inc.
(Minuteman) for a commercial trucking operation serving the natural gas drilling
industry.
In response to complaints from nearby residents, Zoning Officer Lahr
visited the Property and issued identical zoning violation notices to Itama and
Minuteman on July 15, 2014. According to these notices, Lahr observed
a truck and numerous, large, covered containers being stored on
the lot. Later discussions that day with Dan Finch and Brian
Bolus of Minuteman confirmed that their principal occupancy
at this site will be to dispatch trucks and the containers to
various job sites and then to return them again for temporary
4
storage. Upon review of my files, no zoning or occupancy
permit has been approved by the township for this use. You
must cease and desist from using this property in violation of
the zoning ordinance.
R.R. 179a. Lahr cited eight different violations of the Zoning Ordinance. R.R.
179a-80a.
Itama appealed to the Zoning Board, which held a hearing on October
8, 2014. Ron Amati testified that Minuteman’s operations are the same as those
proposed by KMI in Itama’s prior application for an occupancy permit: trucking,
dispatch and minor repairs.5 R.R. 197a.
Brian Bolus, a representative of Minuteman, described the services his
company provides to customers in the gas industry. Minuteman uses fixed body
trucks (dump trucks) as well as trucks that transport removable “roll-off” boxes.
Minuteman rents roll-off boxes and “frac tanks”6 to its customers. Minuteman
hauls empty roll-off boxes to the customer’s worksite, drops them off, retrieves
them when full, and transports them to landfills for disposal of the contents. These
contents consist of drill cuttings (rock chips and dirt) produced during the drilling
of natural gas wells. Minuteman returns the emptied boxes and tanks to the
Property where they remain in the open yard until the next rental. Although Bolus
testified that Minuteman’s business does not include the “storage” of roll-off
boxes, Minuteman keeps its roll-off boxes and frac tanks on the Property when
they are not rented out. The number of roll-off boxes on the Property varies with
the volume of box and tank rentals at any given time.
5
As of the Zoning Hearing Board hearing on October 8, 2014, the underground fuel tank was not
in use because Itama had not yet secured the necessary permits.
6
The Zoning Board noted in its decision that a frac tank is used to hold liquid or sludge material
produced during the gas well drilling and gas collection process.
5
Zoning Officer Lahr testified that his understanding of the School
District’s legal nonconforming use was fueling and minor maintenance of vehicles.
R.R. 235a. He believed that Minuteman had impermissibly expanded the
nonconforming use because he observed storage containers on the ground, which
“looked like … a contractor’s yard or staging area. It didn’t look like the principal
use was repairing of trucks or minor maintenance or fueling.” R.R. 235a.
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.
Neighboring landowners testified that when the School District used
the Property it conducted its operations between 6:00 a.m. and 5:00 p.m. during the
academic year, with occasional evening and weekend activity. Typically, the bus
drivers would arrive in the morning, pick up their buses, drop them off after the
morning run, and then return in the late afternoon to pick up the buses to transport
students home. In contrast, Minuteman’s activities occur at any time of day.
Backup horns and alarms are audible at all times, as are the sounds of the roll-off
boxes being dragged across the ground.
The Zoning Board found that Minuteman engaged in the following
nonconforming uses between July 15, 2014, and September 5, 2014:
(a) Parking of vehicles, including dump trucks and non-fixed
body trucks;
6
(b) Storage, long or short-term, of roll-off boxes and frac
tanks;
(c) Construction and use of a “containment area” to prevent
residual waste … from coming into contact with the
ground;
(d) Storage of roll-off boxes containing residual waste from
drill cutting activity;
(e) Storage of residual waste on a truck for twenty-nine (29)
days;
(f) Drainage of leachate onto the ground;
(g) Permitting the presence of [DEP-regulated] material
produced in the gas collection and production industry;
[and]
(h) Use of the property during late night and early morning
hours.
Zoning Board Opinion at 7. The Zoning Board found that the School District had
not used the property for these purposes between June 7, 2009, and July 2013.
The Zoning Board held that the School District had abandoned its
lawful nonconforming use of the Property for parking vehicles under Section 195-
88 of the Zoning Ordinance7 in 2009, which was more than 12 months before
Minuteman began using the Property for truck parking and outdoor storage of roll-
off boxes and frac tanks in July 2014. The District’s abandonment of the parking
use precluded Itama or any tenant from resuming that use of the Property four
7
Section 195-88 states, in relevant part:
A nonconforming use of a building or land that has been abandoned or
discontinued shall not thereafter be returned to a nonconforming use. A
nonconforming use shall be considered abandoned as follows:
***
C. When a nonconforming use has been discontinued for a period of 12
months….
ZONING ORDINANCE §195-88.C.
7
years later. Id. The Board further held that Minuteman’s uses of the Property
constituted an impermissible change in the legal nonconforming uses by the School
District from 2009 through 2013. Stated another way, Minuteman’s uses of the
Property, other than for fueling and minor vehicle maintenance, violated the
Zoning Ordinance. For these reasons, the Zoning Board denied Itama’s appeal of
the Zoning Officer’s violation notice and cease and desist order. Itama appealed to
the trial court.
The trial court reviewed the testimony from the June 11, 2014,
hearing and held that it supported the Zoning Board’s finding that the School
District used the Property to fuel, maintain and park vehicles from a time
preceding the passage of the Zoning Ordinance in 1970 until it permanently
discontinued parking its vehicles on the Property on June 6, 2009. The trial court
also found support for the Zoning Board’s finding that the only lawful
nonconforming use that continued uninterrupted until July 2013 was the School
District’s use of the Property for fueling and minor maintenance of vehicles. The
trial court agreed with the Board that the nonconforming use of parking vehicles on
the Property had been abandoned in 2009.
Accordingly, the trial court held that the only activities that could
have continued on the Property as a permissible nonconforming use would be
fueling and minor maintenance of vehicles, not a parking lot or storage center. The
trial court concluded that Minuteman’s extended parking of trucks, storage of roll-
off boxes, frac tanks and other containers, along with the construction of a
containment area, were not uses similar to the School District’s uses of the
Property prior to the enactment of the Zoning Ordinance. The trial court denied
8
Itama’s land use appeal and affirmed the Zoning Board’s decision. Itama now
appeals.8
On appeal,9 Itama raises three issues. First, Itama argues that the
Zoning Board’s June 2014 approval of its occupancy permit formed the law of the
case, which bound the Board in the October 2014 proceeding on the issue of the
legality of Minuteman’s nonconforming uses. Relatedly, Itama contends that the
Township was precluded under the doctrine of res judicata from relitigating any
aspect of the legality of the nonconforming use in the second proceeding. Second,
Itama contends that the Zoning Board erred in determining that any portion of the
School District’s lawful nonconforming use of the Property as a vehicle garage,
particularly parking, had been abandoned. Third, Itama asserts that the Board
erred in determining that Minuteman’s use of the Property constitutes an unlawful
change in the prior lawful nonconforming use by the School District.
Approval of Occupancy Permit
Itama first argues 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. Itama contends 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
8
Minuteman was precluded from filing a brief in this appeal. At oral argument, counsel for
Itama disclosed that Minuteman is no longer its tenant on the Property. Nevertheless, we decide
the case on the issues presented by Minuteman’s use because they concern the scope of Itama’s
lawful nonconforming use.
9
This Court’s review when the trial court does not take additional evidence is to determine
whether the zoning hearing board committed an error of law or abused its discretion. TKO
Realty, LLC v. Zoning Hearing Board of City of Scranton, 78 A.3d 732, 735 n.1 (Pa. Cmwlth.
2013).
9
it hold that the School District had abandoned its use of the Property for parking
vehicles. Rather, the June 2014 transcript, exhibits, and Itama’s application and
appeal documents all show that Itama intended to lease the Property to a tenant for
parking, maintaining, fueling and dispatching trucks. The Board’s blanket
approval of Itama’s occupancy permit confirmed the validity of those uses.
Because the Township did not appeal the Zoning Board’s June 12, 2014, decision,
it cannot, now, litigate the validity of any aspect of the prior nonconforming use of
the Property as a vehicle garage.
The law of the case doctrine “refers to a family of rules which
embody the concept that a court involved in the later phases of a litigated matter
should not reopen questions decided by another judge of that same court or by a
higher court in the earlier phases of the matter.” Anter Associates v. Zoning
Hearing Board of Concord Township, 79 A.3d 1230, 1233 (Pa. Cmwlth. 2013)
(citing Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995)).
Among the related but distinct rules which make up the law of
the case doctrine are that: (1) upon remand for further
proceedings, a trial court may not alter the resolution of a legal
question previously decided by the appellate court in the matter;
(2) upon a second appeal, an appellate court may not alter the
resolution of a legal question previously decided by the same
appellate court; and (3) upon transfer of a matter between trial
judges of coordinate jurisdiction, the transferee trial court may
not alter the resolution of a legal question previously decided
by the transferor trial court.
Starr, 664 A.2d at 1331.
We agree with the Zoning Board that the law of the case doctrine is
inapplicable here. At the June 11, 2014, hearing on Itama’s occupancy permit, the
Zoning Board considered a broadly worded application that proposed using the
Property for a commercial trucking operation servicing the gas drilling industry.
10
Much like the School District’s prior use of the Property as a vehicle garage, Itama
indicated that its prospective tenant, KMI, would use the site as a central location
to park and maintain its trucks before and after they were dispatched to service
KMI’s customers. Based on Itama’s application and the testimony of its president,
Ron Amati, the Board approved, without limitation, Itama’s request to continue the
School District’s nonconforming use of the Property as a vehicle garage.
In July 2014, the Zoning Officer observed a different tenant,
Minuteman, using the Property. After investigation, he concluded that Minuteman
was not operating in compliance with the occupancy permit and cited Itama and
Minuteman for eight Zoning Ordinance violations. As noted above, the Board held
that Minuteman’s parking of vehicles and storage of roll-off boxes and frac tanks
were nonconforming uses. Itama appealed the Zoning Officer’s notices to the
Board. The law of the case doctrine applies to rulings within the same case, not to
rulings in two separate cases. That is the situation here. Itama’s real argument is
that the Zoning Board’s holdings are inconsistent, but this does not implicate the
law of the case doctrine.
Itama also argues that the Township was precluded under the doctrine
of res judicata from relitigating any aspect of the legality of the nonconforming
use in the second proceeding because that issue had been finally decided by the
Zoning Board in its June 2014 decision. Itama contends that the Board resolved
the same issues of law and fact in the prior action, and approved “the proposed
nonconforming use of a vehicle garage on the Property,” including the parking and
dispatch of vehicles. Itama’s Brief at 22. Because the Township did not appeal
that decision, Itama asserts that the Township (and the Zoning Board) could not
11
later revisit the issue of the nonconforming use and decide that portions of the
approved vehicle garage use had been abandoned.
Our Supreme Court has explained the doctrine of res judicata as
follows:
The term “res judicata” is often sweepingly used, by courts and
litigants alike, to refer to the various ways in which a judgment
in one action will have a binding effect in a later action. “Res
judicata” encompasses the modern principle of issue preclusion
(traditionally known as estoppel), which is the common law
rule that a final judgment forecloses relitigation in a later action
involving at least one of the original parties, of an issue of fact
or law which was actually litigated and which was necessary to
the original judgment.
Clark v. Troutman, 502 A.2d 137, 139 (Pa. 1985). To support a claim of res
judicata, a party must show a concurrence of four conditions: (1) identity of the
thing sued upon; (2) identity of the cause of action; (3) identity of persons and
parties to the action; and (4) identity of the quality or capacity of the parties suing
or sued. Takacs v. Indian Lake Borough, 10 A.3d 416, 418 (Pa. Cmwlth. 2010).
“The essential inquiry is whether the ultimate and controlling issues have been
decided in a prior proceeding in which the present parties had an opportunity to
appear and assert their rights.” Id.
Itama’s res judicata argument is unavailing because it is impossible to
discern which issues of fact were essential to the Zoning Board’s first decision in
June 2014. There, the Board considered Itama’s application for an occupancy
permit proposing a “continuation of non-conforming use and/or structure as [a]
vehicle garage.” R.R. 4a. Because the Board approved the permit without
reservation, Itama urges the broadest interpretation of that approval and presumes
that a “vehicle garage” entails the parking and dispatch of vehicles since those
12
activities were presented to the Board at the June 2014 hearing. However, the
Zoning Board’s approval of Itama’s occupancy permit could arguably have
contemplated limitations expressed by witnesses at the hearing. Stated another
way, we cannot say on this record 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.
Abandonment of Nonconforming Use
Itama next argues that the Zoning Board erred in finding evidence of
intent to abandon, and actual abandonment of, any portion of the School District’s
legal nonconforming use as a “vehicle garage,” specifically parking and storage of
vehicles.
Section 195-88.C of the Zoning Ordinance states that a
nonconforming use10 shall be considered abandoned when, inter alia, it “has been
discontinued for a period of 12 months.” ZONING ORDINANCE §195-88.C. Where
a zoning ordinance contains such a discontinuation provision, it “creates a
10
The Zoning Ordinance defines a “nonconforming use” as:
A building, structure or premises lawfully occupied at the time of the enactment
of this chapter by a use that does not conform with the provisions of this chapter
for the district in which it is located; also, such use resulting from amendments to
the Zoning District Map or in text provisions made hereafter.
ZONING ORDINANCE §195-6. Similarly, Section 107 of the Pennsylvania Municipalities Planning
Code (MPC) defines a “nonconforming use” as
a use, whether of land or of structure, which does not comply with the applicable
use provisions in a zoning ordinance or amendment heretofore or hereafter
enacted, where such use was lawfully in existence prior to the enactment of such
ordinance or amendment, or prior to the application of such ordinance or
amendment to its location by reason of annexation.
Section 107 of the MPC, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10107.
13
presumption of the intent to abandon the use by the expiration of the designated
time.” Latrobe Speedway, Inc. v. Zoning Hearing Board of Unity Township,
Westmoreland County, 720 A.2d 127, 132 (Pa. 1998) (quoting Pappas v. Zoning
Board of Adjustment of City of Philadelphia, 589 A.2d 675, 678 (Pa. 1991)
(Zappala, J., concurring)).
Failure to use the property for a designated time provided under
a discontinuance provision is evidence of the intention to
abandon. The burden of persuasion then rests with the party
challenging the claim of abandonment. If evidence of a contrary
intent is introduced, the presumption is rebutted and the burden
of persuasion shifts back to the party claiming abandonment.
What is critical is that the intention to abandon is only one
element of the burden of proof on the party asserting
abandonment. The second element of the burden of proof is
actual abandonment of the use for the prescribed period. This is
separate from the element of intent.
Id. (emphasis added).
Here, 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. In support, the Zoning
Board cited as evidence of abandonment the School District’s acquisition and
refurbishment of the former 84 Lumber facility for the fueling, maintenance and
parking of its vehicle fleet; the Zoning Officer’s testimony that the School District
applied for Zoning Board approval of that new facility; and an email from the
School District’s director of buildings and grounds stating that the District stopped
using the Property in June 2009 except for fueling and maintaining its vehicles,
which it continued to do there until July 2013. R.R. 119a.
We disagree with the Board’s conclusion that the Township carried its
burden of proof on abandonment. Itama presented uncontroverted evidence that
14
the School District continued to use the Property through July 2013 for
maintaining and fueling its vehicles, activities that necessarily include parking.
Thus, these activities were ongoing less than nine months before Itama applied for
its occupancy permit. Itama also presented 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. R.R. 47a. Finally,
the email from the School District’s director of buildings and grounds confirmed
that the District continued to use the Property as a vehicle garage through July
2013. We hold that, in light of the foregoing, 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, which includes the fueling, maintaining, parking and
dispatch of vehicles.
Change in Lawful Nonconforming Use
Itama’s final assignment of error is 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.11
Itama contends that the Board erred in requiring each tenant’s use to be identical to
that of the School District. Itama posits that Minuteman’s use of the Property did
not change the prior nonconforming use approved by the Board, i.e., a vehicle
11
It states:
No nonconforming building, structure or use shall be changed to another
nonconforming use, except that a nonconforming building, structure or use may
be changed to another nonconforming use of equal or more restricted
classification as a variance, after public hearing, subject to the standards imposed
by the Zoning Hearing Board, to reasonably assure that the changes will not
adversely affect the public interest.
ZONING ORDINANCE §195-87.
15
garage dispatching trucks and providing hauling services offsite, and parking
vehicles incident to such activities. In Itama’s view, Minuteman’s use of the
Property was the same as, or a valid continuation of, the School District’s uses
except for permissible variations in the types of vehicles and hours of operation.
We agree.
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. Limley v. Zoning Hearing Board of Port Vue Borough, 625 A.2d 54,
55 (Pa. 1993). The proposed use need not, however, be identical to the existing
use; similarity in use is all that is required. Id. (citing Pappas, 589 A.2d 677-78).
In determining what is a proper continuation of a nonconforming use, i.e., whether
a proposed use bears adequate similarity to an existing nonconforming use, the
doctrine of natural expansion must be given effect. Limley, 625 A.2d at 56. The
doctrine of natural expansion “permits a landowner to develop or expand a
business as a matter of right notwithstanding its status as a nonconforming use.”
Pappas, 589 A.2d at 677. A mere increase in the intensity of a use cannot justify a
finding of a new or different use. Foreman v. Union Township Zoning Hearing
Board, 787 A.2d 1099, 1103 (Pa. Cmwlth. 2001). See also, e.g., Limley, 625 A.2d
54 (use of property as public restaurant and bar was permissible expansion of prior
nonconforming use as private club); Pappas, 589 A.2d 675 (full-service pizza
restaurant was permissible expansion of takeout sandwich shop); Clanton v.
London Grove Township Zoning Hearing Board, 743 A.2d 995 (Pa. Cmwlth.
1999) (processing topsoil by drying and bagging it prior to transport was
continuation of nonconforming use of trucking loose topsoil away for bulk sale).
16
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. It is undisputed that the District’s buses
departed the Property in the morning, picked up and delivered students to school,
and then returned to the Property. The process was reversed at the end of the day.
As noted above, 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.
Indeed, 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. The incidental storage of roll-off boxes and other containers is an
increase in the intensity of the prior use, but is not sufficiently dissimilar to the
School District’s vehicle garage as to constitute an impermissible expansion of the
prior nonconforming use.
Conclusion
For all of the foregoing reasons, we reverse the trial court’s order.
______________________________
MARY HANNAH LEAVITT, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Itama Development Associates, LP, :
Appellant :
:
v. :
:
Zoning Hearing Board of the :
Township of Rostraver :
:
v. :
:
Township of Rostraver :
:
v. : No. 985 C.D. 2015
:
Minuteman Environmental Services, :
Inc. :
ORDER
AND NOW, this 7th day of January, 2016, the order of the Court of
Common Pleas of Westmoreland County dated May 13, 2015, in the above-
captioned matter is REVERSED.
______________________________
MARY HANNAH LEAVITT, Judge