The Rush Township Zoning Hearing Board on Tuesday agreed to uphold the notice of violation entered by the township's zoning officer concerning Tamaqua Area School District's Rush Building.

Following a brief executive session, the board ruled to sustain the notice of violation, which means the appeal of the Tamaqua district has been denied.The Rush Building is currently a K-12 setting that offers alternative education, regular education, special education, and school-to-work programs. The school remains open.The district entered into an agreement with Behavioral Health Associates of Lehighton in August to provide services for the students.The school district will be directed to file a special exception for Behavioral Health to use the building.School board solicitor Jeffrey Bowe said after the meeting that he was "certainly disappointed" by the zoners' ruling."We think the decision is incorrect," Bowe said. "We have to discuss it to see what the next step is."Conversely, township solicitor Chris Riedlinger said the township was pleased with the ruling."I'm sure it was a very difficult decision to make, but I think it was legally correct," Riedlinger said.The purpose of the hearing was for the board to render a decision on an appeal from the notice of violation entered by township zoning officer Bill McMullen, who said the proposed use of the school's property does not comply with several sections of the township's zoning ordinance.McMullen said the school's property, located at 50 Meadow Ave. in Tamaqua, is an R-4 zone.Therefore, a school is a use permitted by special exception, but not by right, McMullen said.The district's use of the parcel as a school predates the enactment of the township's zoning ordinance, thus making the district's use of the parcel as a school a nonconforming use.The township has argued that any change to that use cannot be made unless a special exception is obtained from the township's zoning hearing board before changing its use, even if the use is being changed from one nonconforming use to another nonconforming use within the same classification.McMullen said he issued a new notice of violation to the school district in August.The district has not obtained a special exception for its proposed change of use, he said.A Schuylkill County judge rejected an injunction request filed by the township in September to prevent the district from changing the use of the former Rush Township Elementary School in Hometown to an academy.District Superintendent Carol Makuta noted that in September, there were 31 students who were taught at the facility.As of November, Makuta said there were 44 students, 20 of whom were Tamaqua residents, while the other 24 were nonresidents.Makuta said once the goals of the program are met, the students are returned to their sending school.Before the end of last school year in June, Makuta said the district had used the school to educate students in kindergarten and first grade, which had been the case since 2011.Before that, students in kindergarten through fifth grades attended, and before that, it was kindergarten through sixth, she said.Makuta said the district has been affiliated with Behavioral Health Associates for over five years.