Cottone v. ZHB of Polk Township, 954 A.2d 1271 (Pa. Cmwlth. 2008).

If adjoining lots are under common ownership when a zoning ordinance is passed that renders them undersized, then the lots are presumed to have merged and the burden is on the landowner to rebut that presumption.
Case Details:

A corporation owned 16 lots, each just under .3 acres, from 1966 to 2003.  In 1986, the Township enacted an ordinance that required that a lot must be at least one acre for construction of a home in the R-1 zone that would not be served by central water and sewer. The lots were not served by central water and sewer.

In 2003, the lots were sold to Developer.  Developer sold Lot 75Q to Landowner.  Prior to that sale, all lots were under common ownership.  In 2005, Landowner received a letter from the Township that her lot did not comply with the minimum lot size requirements.  Landowner applied for a building permit and, alternatively, for a variance.  The Zoning Hearing Board (the “ZHB”) found that because all of the lots were under common ownership when the ordinance was enacted, Landowner and Developer (the “Appellants”) had to demonstrate that the lots were intended to be kept separate and distinct which they failed to do.

An appeal, to the trial court affirmed the ZHB finding, under the merger doctrine, that had the burden of proving that the nonconforming lots were intended to be kept separate and distinct and failed to meet this burden.

Before the Commonwealth Court Appellants argued that Lot 75Q had not merged with the adjoining lots, and that the trial court erred in placing the burden on them to prove the lot had not merged.  They contended that the Township had to prove that the previous owners intended to merge the lots. The doctrine of merger provides that adjoining properties under common ownership merge when an ordinance causes the adjoining lots to become undersized.  Adjoining lots under separate ownership before an ordinance enactment are presumed to remain separate and distinct.  If the adjoining lots are later acquired by a single owner, the opposing party must show the new owner merged the lots.  Conversely, lots are presumed to merge where they are under common ownership prior to the passage of an ordinance and it is the landowner’s burden to rebut this presumption.  The landowner must offer proof of physical evidence to keep the lots separate and distinct.

Here, Appellants claimed the lots were distinct because each lot was purchased separately, had a separate deed and tax identification number.  However, the Commonwealth Court found that there had to be some sort of physical evidence such as a line of trees, fence or wall.  Therefore, Appellants failed to prove that the lots were intended to be kept separate and distinct.

Date of Decision: 8/15/08

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