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Commonwealth Court holds that zoning ordinance requiring one acre minimum can cause merger of undersized lots under common ownership prior to enactment of the ordinance.

Posted By Cliff Tuttle | August 21, 2008

Posted by Cliff Tuttle

The Commonwealth Court returned to the subject of when undersized lots are merged in light of a zoning ordinance that requires a greater minimum lot size. When the facts require the lot owner to prove an intention to keep the lots separate, this must be accomplished by a physical manifestation of that intention. Maintaining separate deed descriptions or tax parcels does not constitute a physical manifestation of intention to keep the lots separate and distinct. Landowners who acquire adjoining lots afterwards, are required to perform physical acts, such as the erection of a wall or fence or planting of a line of trees along the borderline of the two lots.

In an opinion filed on August 15, 2008 in the case of Mary Ann Cotone et. al. v. Zoning Hearing Board of Polk Township, No. 292 C.D.2007, the Commonwealth Court discussed the law regarding the merger and non-merger of undersized lots at some length.

The Polk Township zoning officer denied Cottone a permit to build a house on a lot of .3 acres because the zoning ordinance requires a minimum one acre lot for a house served by a water well and on-lot sewage treatment. This decision was upheld by the Zoning Hearing Board and by the Monroe County Court of Common Pleas. On appeal, the Commonwealth Court stated: “In this case we consider, inter alia, whether the zoning ordinance effected the merger of Cottone’s lot with adjoining lots in spite of the fact that the size of her lot had been established in an approved subdivision plan, was separately deeded, and separately taxed.”

Cottone’s lot was one of 16 undeveloped lots in a plan approved in 1975. Each lot was approximately .3 acres in size and the whole development was owned by a single owner from 1966 to 2003. The lots were still undeveloped when Polk Township enacted the one acre minimum lot size. All sixteen lots were sold to Reflection Builders Enterprise, Inc. (Reflection) who in turn sold Lot 75Q to Cottone in July 2005. At that point, Reflection still owned the other 15 undeveloped lots. The application for a building permit was denied. On appeal, Cuttone requested a special exception or variance from the Zoning Hearing Board. The Common Pleas Court affirmed denial of all relief requested.

Citing cases, the Commonwealth Court noted that common ownership of adjoining properties does not automatically create a merger. But when a zoning ordinance causes one or more adjoining parcels under common ownership to become undersized, such a merger is possible, depending upon the facts of the case. This depends upon when the ownership became common and when the ordinance became effective.

Adjoining lots under separate ownership are presumed to be buildable after the enactment of the ordinance unless later acquired by a single owner, whereupon the burden is on the municipality to show that the new common owner has merged the two lots into one.

“On the other hand,” the opinion stated, “lots are presumed to merge as necessary to comply with a zoning ordinance’s lot size requirements when they are under common ownership prior to the passage of the ordinance. It is the landowner’s burden to rebut this presumption by proving the intent to keep the lots separate and distinct. In doing so, the landowner’s subjective intent is not determinative, rather, there must be proof of some overt or physical manifestation of intent to keep the lots in question separate and distinct.” [citations omitted.]

The Court reviewed two cases where the landowner had attempted to prove intent to keep parcels separate by maintaining separate deed descriptions or tax parcels. This was held to be insufficient. So, too, in the present case.

The lesson of this case and those cited within is that an owner acquiring adjacent undersized parcels must promptly erect or plant some distinct physical barrier between the lots. A strong, permanent fence running along the length of the property line would perform this task very well.

To read the full opinion, click here.



CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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