Tamaqua Area School District officials asked Schuylkill County Court on Wednesday to overturn Rush Township’s determination that it violated zoning regulations by changes to programs offered at its building in Hometown.
Rush Township zoning officials incorrectly ruled that the changes were not legal extensions of the district’s nonconforming use of the property at 50 Meadow Ave., the district alleged in its appeal.
“The (township zoning hearing board) erred in determining a substantial change in use occurred in 2015,” and that a special exception is necessary for the new educational programs, according to the appeal.
School officials asked the court to reverse the board’s ruling, dismiss the notice of violation against it, find that the district is operating the building properly as a nonconforming use and allow the district to continue operations.
Tamaqua Area converted Rush Elementary School, which offered instruction for students from 1971 to 2015, into the Rush Township Academy, a facility for providing special education, alternative education, employment programs and online education. Behavior Health Associates, a private business, now provides those services under a contract with Tamaqua Area.
The building is located in an R-4 zoning district under the current ordinance; however, the school pre-dates that ordinance and both the township and district agree that it had been a legal nonconforming use before the changes in 2015.
Rush Township Zoning Officer William N. McMullen issued the notice of violation on Aug. 17, 2015. The board upheld the notice on Jan. 5, ruling that a special exception is necessary because the academy represents a “substantial change” in the services offered at the building and that the district has no exemption from conforming with the ordinance.
“An application for special exception shall be required for protection of the health, safety and welfare of the community,” the board determined.
In its appeal, Tamaqua Area asserts that the board incorrectly ruled that because the state Department of Education required permission for the new use of the school, that constituted a “substantial change” that requires the district to obtain a special exception.
Furthermore, according to the district, the board also erred by:
• Ruling the present use of the property was not a permissible continuance of the nonconforming use.
• Not concluding that the use is legal because under the law, the district must provide the alternative and special education services being taught at the property.
• Ignoring the fact that the district still provides security, maintenance, administrative and cafeteria staff at the building, even though Behavioral Health Associates provides instruction.
• Refusing to rule that the building’s status as a public school under the ordinance does not prohibit students from other districts being educated there.
• Not ruling that even if the current use is a change under the meaning of the ordinance, it is still substantially similar to the past use and, therefore, the district is permitted to operate the building in that way.