Notice of violation: dismissed.

Legal wrangling: to be continued.The Rush Township Zoning Hearing Board met Tuesday to consider the Tamaqua Area School District's appeal of a notice of violation issued by Rush zoning officer Bill McMullen.The township contended that the district's proposed use of the Rush Township Elementary School did not comply with zoning regulations.After listening to testimony, the board chairwoman Cathey Schimpf and members Wayne Postupack and Tom Klein unanimously voted to withdraw the violation.Until the close of the school year in June 2015, the district had used the school to educate students in kindergarten and first grade. It hoped to forge an agreement with Behavioral Health Associates of Lehighton, which provides educational services to students who need an alternate to regular education because of special needs.After a Times News article appeared which referred to a lease agreement between the district and BHA, Rush Township officials issued the notice of violation.During the meeting Tuesday, Rush Township solicitor Chris Reidlinger and Tamaqua Area School District solicitor Jeff Bowe argued the wording of the notice.Bowe contended that the notice did not state the specific violation, as is required. The letter the district received from McMullen June 19 referred to a "lease agreement" and said that the proposed use did not comply with uses permitted by right or special exception.Bowe said that no lease or contract currently existed between the district and BHA. Since there was no agreement, there was no change of use for the school, making the notice moot. Bowe also said that the letter didn't satisfy the requirements of what's to be included in the notice of violation."First, there's no date for a response; and secondly, no specific violation alleged," Bowe said. "Also there's no information about our right to appeal."Zoning hearing board solicitor Bill Burke advised the board to go into executive session, which it did for about 10 minutes."We can't litigate something that's not in existence," Burke said, referring to an agreement between the district and BHA. After the short executive session, the board emerged and voted to dismiss the notice.Before that, as McMullen's testimony was drawn out by Reidlinger, Bowe and Reidlinger clashed on the wording.According to the ordinance, a school is not a use permitted by right in a R-4 district, but it is permitted by special exception.A school is defined as having "a principal use in which supervised education or instruction is offered, including, but not limited to, the following: public school supported by public funds and providing free education for children located within a public school district."Bowe laid the groundwork for future legal wrangling by noting the descriptions in the township's previous zoning ordinance, which was developed in 1980 and approved in 1995. The township's new ordinance was approved in 2009. In the former ordinance, Bowe pointed out, public and private schools were allowed in all districts.Bowe also referred to the description of a school in the new ordinance; before types of schools are defined, the language precludes those definitions with the words "including but not limited to."About two dozen residents attended the meeting. District Superintendent Carol Makuta and business manager Connie Ligenza also attended, as well as all three Rush Township supervisors, Chairman Shawn Gilbert, Robert Leibensperger and Jeanine Motroni.Makuta said after the meeting that the district would continue to try to find a way to work with BHA."We're going to meet with BHA to see if they can provide the programs our students need," she said. "These are programs that they are entitled to receive."