Parkside Associates, Inc. v. Zoning Hearing Board

532 A.2d 47, 110 Pa. Commw. 157, 1987 Pa. Commw. LEXIS 2531
CourtCommonwealth Court of Pennsylvania
DecidedOctober 8, 1987
DocketAppeal, No. 770 C.D. 1986
StatusPublished
Cited by16 cases

This text of 532 A.2d 47 (Parkside Associates, Inc. v. Zoning Hearing Board) 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
Parkside Associates, Inc. v. Zoning Hearing Board, 532 A.2d 47, 110 Pa. Commw. 157, 1987 Pa. Commw. LEXIS 2531 (Pa. Ct. App. 1987).

Opinion

Opinion by

Judge Barry,

Parkside Associates, Inc., appeals an order of the Court of Common Pleas of Montgomery County which affirmed a decision of the Zoning Hearing Board of Montgomery Township refusing Parkside’s request for either a certificate of nonconformity or a variance.

Parkside is the equitable owner of a parcel of land located in Montgomery Township. In 1941, a large tract of land, known as Lansdale Manor Heights, was subdivided. In December of 1947, Nelson and Marie Moyer bought two adjoining unimproved parcels, numbered lots 11 and 12. Less than one month later, they acquired the contiguous lot number 10, the subject of this litigation. The Moyers built a house which was essentially centered upon lots 11 and 12. In 1951, the [159]*159Moyers conveyed to Harry White by single deed and for a single consideration, lots 10, 11 and 12. Lots 11 and 12 were referred to as Parcel A while lot 10 was referred to as Parcel B. Both parcels were conveyed by single deed in 1955 and again in 1966, when David and Elsie Detwiler obtained the property. In 1976, the Detwilers sold Parcel A, retaining lot 10-Parcel B. In 1984, the Detwilers signed an agreement of sale for the property to Parkside, subject to Parkside obtaining approval for construction of a single family dwelling.

Montgomery Township passed a zoning ordinance in 1952 which zoned the property R-2 and required, inter alia, frontage of 100 feet and a minimum area of 20,000 square feet. Lot 10 has sixty feet of frontage and an area of 19,500 square feet. In order to provide for lots made undersized by the zoning ordinance, Article XII, Section 1201 of that ordinance provides:

Lots: Non-Conforming lots as to Area and Width Regulations, and Lots of Unusual Dimensions. In any Residential District, a building may be erected or altered on any unimproved lot held in single and separate ownership on the effective date of this Ordinance which is not of the required minimum area or width. (Emphasis added.)

The ordinance also defines “single and separate ownership” in Article II, Section 200, as “[t]he ownership of property by any person, which ownership is separate and distinct from that of the adjoining property.”

Parkside, after obtaining equitable title to the property, filed an application with the Board seeking either a certificate of non-conformancy or a variance. The Board denied both requests. Parkside appealed to the trial court which, without taking any additional testimony, affirmed. This appeal followed.

[160]*160In zoning cases where the trial court takes no additional evidence, our scope of review is limited to determining whether the Board abused its discretion, committed an error of law or made necessary factual findings which are not supported by substantial evidence. Zoning Hearing Board of Indiana Township v. Weitzel, 77 Pa. Commonwealth Ct. 108, 465 A.2d 105 (1983). Appellant makes two arguments, neither of which has any merit. Hence, we will affirm.

Appellant first argues that lot 10 was held in single and separate ownership, apart from lots 11 and 12, at the time the zoning ordinance was enacted. This argument, however, is belied by the definition contained in Section 200 of the ordinance, which defines such ownership as “[t]he ownership of property by any person, which ownership is separate and distinct from that of adjoining property.” The owners of the property at the time of enactment of the ordinance, the Whites, were grantees of both parcels under a single deed from Mr. White, who acquired the property individually. Furthermore, Mr. White acquired both parcels under a single deed and for a single consideration from the Moyers, who admittedly obtained the parcels in two separate transactions. As Parcel A and Parcel B are adjoining, we see nothing in this record which indicates that the Whites held the two parcels as separate and distinct entities.

Appellant points to the fact that the Moyers built their house centered on lots 11 and 12, and argues that this shows the Moyers’ intent to keep the tracts separate. Even if this action did show such an intent, and we do not think it does, it is not the Moyers’ intent that controls for we must look to the intent of the landowners at the time of enactment of the zoning ordinance in 1952. As already stated, there is nothing in this record to indicate that the Whites had any intention of [161]*161treating the two parcels as separate and distinct. Appellant points to other facts occurring after enactment of the ordinance which allegedly evidence an intent to keep the tracts separate, but again, it is the intent of the landowners at the time of the ordinances enactment that controls.

The Board and the trial court relied upon Alexander v. Abington Township, 104 Montg. Co. L.R. 231 (1976), (C.P. Pa. 1976), where the court ruled that automatic merger occurs whenever adjoining properties come into common ownership. We cannot agree with such a rule, for it would prohibit a landowner from purchasing and building upon an adjoining lot under the terms of an ordinance such as the present one. We have already held in a similar situation that a board abuses its discretion when it denies a requested variance to an adjoining landowner. Jacquelin v. Horsham, Township, 10 Pa. Commonwealth Ct. 473, 312 A.2d 124 (1973). Exceptions for lots predating a zoning ordinance are not personal, but must be deemed to run with the land. If it can be shown that a property owner who purchases adjoining tracts does not intend to keep the adjoining tracts separate and distinct, that intent should be honored when questions such as presented here arise. Unfortunately for appellant, no such proof of the Whites’ intent was presented in this case so that at the time of the zoning ordinance, the parcels were no longer separate and distinct. For that reason, the certificate of nonconformancy was properly denied.

Appellant also argues that both the Board and the trial court committed an error of law in refusing to grant the variance. It is well settled, however, that a variance need not be granted where the hardship is self imposed. Grace Building Co., Inc. v. Zoning Hearing Board of Upper Merion Township, 38 Pa. Commonwealth Ct. 178, 392 A.2d 888 (1978). Both the Board [162]*162and the trial court believed that appellants hardship in this case was self inflicted. Appellant relies upon two cases in attempting to convince us that this legal conclusion is incorrect.

He first relies upon Jacquelin and argues that if the variance is not granted, that case requires a conclusion that property has been taken without just compensation. Jacquelin, however, is inapposite because there, the owner of the developed adjoining lot purchased the non-conforming lot in a separate transaction after enactment of the zoning ordinance. As the two lots in question had been held in single and separate ownership since enactment of the zoning ordinance there, there is no question that any individual except an adjoining landowner could have purchased the undersized lot and built upon it. Jacquelin simply decided that the adjoining landowner in such a situation was also entitled to build upon it.

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Cite This Page — Counsel Stack

Bluebook (online)
532 A.2d 47, 110 Pa. Commw. 157, 1987 Pa. Commw. LEXIS 2531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parkside-associates-inc-v-zoning-hearing-board-pacommwct-1987.