In re Jerrehian, 155 A.3d 674 (Pa. Commw. Ct. 2016)

Zoning boards are not permitted to add requirements that are not specifically mentioned in the zoning ordinance. The Court also stated the party asserting merger of one lot to another that is noncompliant with certain zoning requirements must prove the land owner’s intent to merge those lots by “overt, unequivocal, physical manifestation” of such intent.
Case Details:

Applicant intended to build a single-family house on a lot called the Pool Lot which totals 3.8 acres and has 110 feet of frontage on a right-of-way. However, no physical street existed within the right-of-way.  Under the Township’s Zoning Code (Code), a “residential lot” is one that is at least 45,000 square feet in area and at least 90 feet in width at the “street line.” Applicant sought a preliminary opinion that the Pool Lot and proposed plan complied with the Code. The preliminary opinion was favorable and published in a local newspaper to allow for objectors to challenge the decision. Neighbors objected to the opinion (Objectors) on the grounds that, among other things, (1) the Pool Lot did not meet the requirements of the Code because it was not on a “street” and (2) the Pool Lot had merged with a lot that was nonconforming in size when it was purchased by a previous owner.

In response to the first argument, the Zoning Board (Board) agreed with the Objectors. The Board determined that since the Pool Lot’s frontage was on a right-of-way the Pool Lot did not satisfy the relevant requirements. However, the Board disagreed with the Objectors’ contention that the Pool Lot had merged with another lot. The Board found the Objectors failed to prove the previous owners intended to merge the lots they bought; therefore, the Pool Lot had not been merged into the adjoining lot. Both parties appealed to the trial court which affirmed the Board’s decision. Both parties appealed to the Commonwealth Court.

On appeal, Applicant argued the right-of-way is a “street” as defined by the Code, so the Pool Lot met the Code’s dimensional requirements. The Court agreed with Applicant after analyzing the definitions of “street” and “right-of-way” because the Code defined each term to include the other.  Further, the Code made no mention of the Board’s interpretation that required a roadway to contain sewers and public utilities in order to be a street. Section 603.1 of the Pennsylvania Municipalities Planning Code (MPC) states:

In interpreting the language of zoning ordinances to determine the extent of the restriction upon the use of the property, the language shall be interpreted, where doubt exists as to the intended meaning of the language written and enacted by the governing body, in favor of the property owner and against any implied extension of the restriction.

Therefore, zoning boards are not permitted to add requirements that are not specifically mentioned in the zoning ordinance.  Accordingly, the Court affirmed the trial court’s decision with respect to this issue.

In addition to the right-of-way argument discussed above, Objectors argued (1) the Pool Lot was not created in a valid subdivision as defined by the MPC because it occurred when the Orphans Court subdivided the property from a larger parcel following the death of the owner and (2) the Pool Lot had merged with the adjoining lot. The Commonwealth Court rejected the first argument because the subdivision was valid under In re Tettermer’s Estate. Since the Orphan’s Court’s subdivision occurred prior to the enactment of the MPC, any definition of “subdivision” at odds with the Orphan Court’s action was irrelevant.  Further, even if the definition was relevant in this instance, the MPC’s definition of “subdivision” does not preclude the Orphan’s Court from subdividing land in an estate settlement. The Orphan Court’s subdivision of the land at issue was valid.

With respect to Objectors’ second argument, the Court held that “mere common ownership of adjoining lots does not automatically establish physical merger of the lots . . . [t]he burden is placed on the party who asserts physical merger to establish intent to integrate the adjoining lots into one large parcel.”  The previous owners had taken title to the lots in a single deed, but the deed separately described each lot. Each lot had a separate tax parcel number and had been sold separately. The only act of common use was a circular driveway that crossed over part of the Pool Lot. The burden of proof requires an “overt, unequivocal, physical manifestation of [intent to merge lots].”  Use of a driveway in an easement area did not meet the burden of proof, and occasional use of a driveway could not nullify the other evidence showing intention to treat the lots as separate.  Thus, Objectors’ appeal was rejected.

Date of Decision: 3/6/17

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