Appeal of Gregor

627 A.2d 308, 156 Pa. Commw. 418, 1993 Pa. Commw. LEXIS 380
CourtCommonwealth Court of Pennsylvania
DecidedJune 24, 1993
Docket935 C.D. 1992
StatusPublished
Cited by16 cases

This text of 627 A.2d 308 (Appeal of Gregor) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Appeal of Gregor, 627 A.2d 308, 156 Pa. Commw. 418, 1993 Pa. Commw. LEXIS 380 (Pa. Ct. App. 1993).

Opinions

[421]*421SMITH, Judge.

William T. Gregor and Betty J. Gregor appeal from the March 31, 1992 order of the Court of Common Pleas of Montgomery County which affirmed the decision of the Zoning Hearing Board of the Borough of East Greenville (Board) denying their application for a variance. The issue presented on appeal is whether two lots held by the Gregors in common ownership physically merged into a single conforming lot for the purpose of determining their entitlement to a variance.

I

In 1980, the Gregors purchased an unimproved lot identified as Tax Map Block 7, Unit 41 (Lot 41). Lot 41 is located in an Rl-Residential zoning district which permits construction of a single-family dwelling. The lot abuts to the north a plotted but unopened street known as Fifth Street (Fifth Street); to the west a plotted but unopened twenty-foot-wide alley (Alley); to the south a vacant landlocked lot; and to the east the borough line. Lot 41 thus has no frontage on a public street, as required by Section 95-96 of the Borough of East Green-ville Zoning Ordinance No. 2-69, as amended, which was adopted in 1969 and provides that “[e]ach and every lot shall abut a public street for at least fifty (50) feet at the right-of-way line.” The Gregors filed an application for a variance from the ordinance requirement to construct a single-family dwelling on Lot 41.

The following relevant facts developed at the hearing are not disputed. Lot 41 and the surrounding lots were laid out in the 1950’s as building lots. The original survey included a provision for the extension of Fifth Street which would have provided frontage and access to Lot 41. On August 11, 1967, the Gregors purchased another lot identified as Lot 40, located immediately to the north of Lot 41, and resided there until January 12, 1990 when the lot was sold. According to the tax map, Lot 40 abuts to the south Fifth Street which divides Lots 40 and 41. The Gregors proposed that they would gain access to Lot 41 from a street known as Old Fifth Street through a [422]*422driveway to be constructed in a northerly direction on a portion of the Alley on which they claim to have an easement right and that utilities, including water and sewer, would likewise be extended to Lot 41 along the Alley. The neighboring property owners disputed the existence of the Gregors’ easement right over the Alley.

The Board found that Lot 41 would meet all of the lot area, setback and side-yard requirements except the requirement of frontage on a public street. The Board concluded that because Lots 40 and 41 were held in common ownership and were used as one lot by the Gregors from 1980 to 1990, the two lots merged into a single conforming lot with frontage on a public street, i.e., Old Fifth Street, and that Lot 41 therefore ceased to be nonconforming. The Board stated that the Gregors are not entitled to a variance because both lots were not held in single and separate ownership since enactment of the zoning ordinance under Section 95-90.1 The Board denied the Gregors’ request for a variance finding that the hardship resulting from the lack of frontage on a public street was self-inflicted by the sale of Lot„40 in 1990. On appeal, the trial court affirmed the Board’s denial of a variance.2 The Gregors contend that the record does not estab[423]*423lish a merger of Lots 40 and 41 and that the hardship therefore was not self-inflicted.

II

Under the doctrine of merger of estate in land, a lesser estate is merged into a greater estate whenever both estates meet in the same person. Griffith v. McKeever, 259 Pa. 605, 103 A. 335 (1918). This doctrine has no application, however, to zoning law and the construction of a zoning ordinance where, as here, the term “merger” is used to describe the effect of a zoning ordinance on lots held in common ownership and is related to the issue of the physical merger of adjoining lots. West Goshen Township v. Crater, 114 Pa.Commonwealth Ct. 245, 538 A.2d 952 (1988). Thus, a physical merger does not occur automatically whenever adjoining lots come into common ownership subsequent to enactment of a zoning ordinance which renders one or both of the lots nonconforming. Parkside Assoc., Inc. v. Zoning Hearing Board of Montgomery Township, 110 Pa.Commonwealth Ct. 157, 532 A.2d 47 (1987).

In rejecting the concept of automatic merger, this Court stated in Crater:

If [an] owner subdivides the smaller lot from the larger lot, then the ‘hardship’ is self inflicted. On the other hand, if the first tract were already developed and the owner acquired the adjacent lot from another as an investment, then there seems little point in developing a rule which would say ‘this lot may be purchased and developed by any person except the owner of the neighboring land.’

Id. 114 Pa.Com. at 253, 538 A.2d at 956 (quoting Scott v. Fox, 63 Del. 401, 406 (C.P.Pa.1976)) (emphasis in original). Following this reasoning, where, as here, the adjoining lots were held in single and separate ownership at the time of enactment of the ordinance, those lots may be developed as two separate lots if the owner who purchased an adjoining lot subsequent to [424]*424enactment of the zoning ordinance intended to keep those lots separate and distinct. Township of Middletown v. Middletown Township Zoning Hearing Board, 120 Pa.Commonwealth Ct. 238, 548 A.2d 1297 (1988), appeal denied, 522 Pa. 599, 562 A.2d 322 (1989). The burden is placed upon the party who asserts a physical merger to establish the landowner’s intent to integrate the adjoining lots into one large parcel.

As this Court stated in Township of Middletown:3

It is undisputed here that both lots were held in ‘single and separate ownership’ at the time of the passage of the ordinance.... This is not to say, however, that once two adjoining lots are shown to be in ‘single and separate ownership’ at the time of the relevant zoning ordinance, these lots must always be developed as two separate parcels .... The municipality bears the burden of showing that the landowner has integrated the lots into one large parcel. Placing the burden upon the municipality in this context is essentially no different then [sic] placing the burden of proving the abandonment of a nonconforming use upon the party asserting it.

Id. 120 Pa.Com.Ct. at 245, 548 A.2d at 1300 (emphasis in original). To meet this burden, the objectors must present the evidence of some overt, unequivocal, physical manifestation of the landowner’s intent to integrate the lots into one parcel through the landowner’s affirmative actions.

In the matter sub judice, the objectors presented no evidence indicating any physical manifestation of the Gregors’ intent to integrate the lots into one conforming lot. The Board instead relies upon the following testimony of William T. Gregor during cross-examination to support its finding that the Gregors used Lot 41 as a garden and lawn area for the residence on Lot 40 during their ownership of both lots.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Miller, R. v. Bunting, R.
2025 Pa. Super. 80 (Superior Court of Pennsylvania, 2025)
McCarry v. Haverford Township Zoning Hearing Board
113 A.3d 381 (Commonwealth Court of Pennsylvania, 2015)
Therres v. Zoning Hearing Board
947 A.2d 226 (Commonwealth Court of Pennsylvania, 2008)
Wilson v. Plumstead Twp. Zoning Hearing Board
936 A.2d 1061 (Supreme Court of Pennsylvania, 2007)
Springfield Township v. Halderman
840 A.2d 528 (Commonwealth Court of Pennsylvania, 2004)
Dudlik v. Upper Moreland Township Zoning Hearing Board
840 A.2d 1048 (Commonwealth Court of Pennsylvania, 2004)
Conrad/Dommel, LLC v. West Development Co.
815 A.2d 828 (Court of Special Appeals of Maryland, 2003)
Stansbury v. Jones
812 A.2d 312 (Court of Appeals of Maryland, 2002)
Richard Roeser Professional Builder, Inc. v. Anne Arundel County
793 A.2d 545 (Court of Appeals of Maryland, 2002)
Friends of the Ridge v. Baltimore Gas & Electric Co.
724 A.2d 34 (Court of Appeals of Maryland, 1999)
Tinicum Township v. Jones
723 A.2d 1068 (Commonwealth Court of Pennsylvania, 1998)
McNally v. Bonner
645 A.2d 287 (Commonwealth Court of Pennsylvania, 1994)
Appeal of Gregor
627 A.2d 308 (Commonwealth Court of Pennsylvania, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
627 A.2d 308, 156 Pa. Commw. 418, 1993 Pa. Commw. LEXIS 380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-gregor-pacommwct-1993.