Tamaqua Area School District will challenge a decision from earlier this month concerning the Rush Building.

On a 6-0 vote, the school board on Tuesday agreed to direct its solicitor to file an appeal to the decision of the Rush Township Zoning Hearing Board on Jan. 5. Directors Thomas Rottet, Mark Rother and Aaron Frantz were absent.At the Jan. 5 meeting, the zoning hearing board sustained the notice of violation entered by township zoning officer Bill McMullen regarding the Rush Building, which meant the district's appeal was denied.McMullen said the proposed use of the school's property does not comply with several sections of the township's zoning ordinance. The school district was directed to file a special exception for Behavioral Health Associates to use the building.After Tuesday's board meeting, district Superintendent Carol Makuta confirmed that the school remains open."It's still operating as a school," Makuta said.Board President Larry Wittig then weighed in on the matter."It's my opinion that they're using this as an excuse to not let 'those' kids come into their neighborhood when those kids are our kids," Wittig said. "I think it's a shame."Makuta previously said that as of November, there were 44 students who were taught at the facility, 20 of whom were Tamaqua residents, while the other 24 were nonresidents.She 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.McMullen said the school's property, 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.Currently a K-12 setting, the Rush Building offers alternative education, regular education, special education and school-to-work programs.The district entered into an agreement with Behavioral Health Associates of Lehighton in August to provide services for the students.The district's use of the parcel as a school predates the enactment of the township's zoning ordinance, 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.