A. M. Begies v. Upper Nazareth Twp ZHB (Complete Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Anita M. Begies, Appellant v. Upper Nazareth Township Zoning Hearing Board BEFORE: : : : : : : : No. 830 C.D. 2007 Submitted: October 30, 2007 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE KELLEY FILED: June 20, 2008 Anita M. Begies (Begies) appeals from the order of the Court of Common Pleas of Northampton County (trial court), which affirmed the decision of the Upper Nazareth Township Zoning Hearing Board (Board) denying Begies request to develop her property as a non-conforming lot. We reverse. Begies owns three contiguous parcels of real property located in Upper Nazareth Township, Northampton County, Pennsylvania, in the R-3 Medium Density Residential Zoning District. One parcel is located on Christian Spring Road and is owned by Begies and her husband, James J. Begies, as tenants by the entireties (Entireties Parcel). The second parcel, located on Alms House Road, contains a single family home and is titled in the name of Anita M. Begies Trust (Trust Parcel). The third parcel, also on Alms House Road, is a triangular lot and is owned by Begies and her husband as tenants by the entireties (Triangular Parcel). A single family detached dwelling is permitted by right in the R-3 District, but requires a minimum lot size of one acre and a minimum width of 135 feet. The Entireties Parcel does not conform to these requirements because it contains approximately .41 acres and has a lot width of 62.62 feet. Seeking to construct a single-family detached dwelling on the Entireties Parcel, in March 2006, Begies filed a zoning appeal application with the Board requesting an interpretation as to whether her parcel is a nonconforming lot under Section 2100.8 of the Upper Nazareth Zoning Ordinance (Ordinance). A hearing on the application was held before the Board, wherein Begies introduced evidence to support her claim of nonconformity, including a recorded deed confirming that the Entireties Parcel is a nonconforming lot held in single and separate ownership and was recorded prior to the effective date of the Ordinance. The Board reviewed Begies prior representation to the Board in April 2004, in the context of an application for variance, that she was the owner of three contiguous parcels, which she used as her residence, yard and driveway. Based upon this representation along with Begies actual usage of the lots, the Board determined that the Entireties Parcel and the Trust Parcel had merged, such that the Entireties Parcel was not a nonconforming lot as defined by Section 2100.8. From this decision, Begies filed an appeal with the trial court, which affirmed. This appeal now follows.1 Begies raises the issue of whether the Board abused its 1 Where, as here, the trial court has not taken any additional evidence, this Court's scope of review is limited to a determination of whether the zoning hearing board committed an error of law or abused its discretion. Hill District Project Area Committee, Inc. v. Zoning Board of Adjustment of the City of Pittsburgh, 638 A.2d 278 (Pa. Cmwlth.), petition for allowance of appeal denied, 538 Pa. 629, 646 A.2d 1182 (1994). An abuse of discretion will only be found where the zoning hearing board's findings are not supported by substantial evidence. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to (Continued....) 2. discretion and committed an error of law by merging two lots held in single and separate ownership. The term merger is used in zoning law and in the construction of a zoning ordinance to describe the effect of a zoning ordinance on lots held in common ownership and is related to the issue of physical merger of adjoining lots. Springfield Township v. Halderman, 840 A.2d 528 (Pa. Cmwlth.), petition for allowance of appeal denied, 581 Pa. 686, 863 A.2d 1151 (2004); Tinicum Township v. Jones, 723 A.2d 1068 (Pa. Cmwlth. 1998). Historically, the doctrine of merger has been applied to cases where adjacent non-conforming lot(s) were brought into common ownership. Id.; Daley v. Zoning Hearing Board of Upper Moreland Township, 770 A.2d 815 (Pa. Cmwlth. 2001). In determining whether there has been a merger of adjoining lots, the burden of proof is placed on the party who asserts a physical merger to establish a landowner s intent to integrate the adjoining lots into one large parcel. Appeal of Gregor, 627 A.2d 308 (Pa. Cmwlth. 1993). To meet this burden, the party asserting merger must present evidence of some overt, unequivocal, physical manifestation of landowner s intent to integrate the lots into one parcel through the landowner s affirmative actions. Id. at 311. The Ordinance, which took effect in 1986, contains a merger provision for nonconforming lots. Section 2100.8 of the Ordinance provides: A structure which meets the yard requirements of this Ordinance may be constructed on any lot which was lawful when created and, which prior to the effective date of this Ordinance was in separate ownership and duly recorded by Plan and Deed. However, such a lot must be support a conclusion. Teazers, Inc. v. Zoning Board of Adjustment of the City of Philadelphia, 682 A.2d 856 (Pa. Cmwlth. 1996). 3. in separate ownership and not contiguous with other lots of the same ownership. Should two (2) or more lots, or groups or portions of lots with contiguous frontage in a single ownership of record at the passage of this Ordinance, the lands shall be considered to be one (1) undivided parcel, though in its entirety some or all dimensional requirements may not be met. In no case shall a portion of the parcel be severed or used in a manner that diminishes compliance with the lot width and area requirements of the district within which it may be found. Ordinance at 95-96. Section 400.2 of the Ordinance defines a nonconforming lot as a lot the area or dimension of which was lawful prior to the adoption or amendment of an Ordinance, but which fails to conform to the requirements of the zoning district in which it is located by reasons of such adoption or amendment. Ordinance at 18. However, the Ordinance does not define separate ownership or contiguous frontage. Where the ordinance does not specifically define the term sought to be construed, and the words are ones in common usage, they are to be given their common usage meaning. Danwell Corp. v. Zoning Hearing Board of Plymouth Township, 540 A.2d 588, 593 (Pa. Cmwlth.), petition for allowance of appeal denied, 520 Pa. 620, 554 A.2d 511 (1988). Common usage of the phrase separate ownership means ownership of a lot by one or more persons, which is separate and distinct from that of any abutting or adjoining lot. Contiguous means touching at a point or along a boundary. Black s Law Dictionary (6th Ed. 1992) at 320. Frontage commonly refers to linear distance of property along a street, highway, river or lake. Id. at 668. In this case, the Board claimed physical merger and, consequently, had the burden of establishing Begies intent to integrate the adjoining lots into one parcel. However, this burden was never met. First, with regard to separate 4. ownership, the Entireties Parcel and Triangular Parcel are owned by Begies and her husband as tenants by the entireties, while the Trust Parcel is owned by the Anita M. Begies Trust . The Trust Parcel was originally deeded solely to Anita M. Begies on May 10, 1973. She continued to own the property individually until October 9, 2000, when she transferred it to the Anita M. Begies Trust by quitclaim deed. The Trust is a separate legal entity created by Anita M. Begies the grantor - for the benefit of designated beneficiaries, whereas the property owned by the entireties refers to a joint tenancy held by a husband and wife with the right of survivorship. Mere association of Anita M. Begies name on both properties is insufficient to destroy the legal distinction between a property owned by trust and a property owned by the entireties. The fact that the Entireties Parcel and Trust Parcel/Triangular Parcel have been kept under separate ownership is certainly evidence of Begies intent to keep the parcels legally separate. Moreover, the Entireties Parcel does not share contiguous frontage with the other parcels. While the Trust Parcel and the Triangular Parcel have contiguous frontage on Alms House Road and are subject to merger, the Entireties Parcel fronts on Christian Spring Road and does not share contiguous frontage with the other two lots. R.R. at 29a-30a, 88a; Exhibit A-5. Therefore, pursuant to the plain language of the Ordinance, the Entireties Parcel cannot be merged with the Trust or Triangular Parcels. Based upon our review, the Board improperly applied the doctrine of merger to the Entireties Parcel and erred in denying Begies request to develop the Entireties Parcel as a non-conforming lot. Accordingly, the order of the trial court is reversed. _________________________________ JAMES R. KELLEY, Senior Judge 5. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Anita M. Begies, : : : : : : : Appellant v. Upper Nazareth Township Zoning Hearing Board No. 830 C.D. 2007 ORDER AND NOW, this 20th day of June, 2008, the order of the Court of Common Pleas of Northampton County, dated April 27, 2007, at Docket No. C0048 CV 2006 4207, is REVERSED. _________________________________ JAMES R. KELLEY, Senior Judge IN THE COMMONWEALTH COURT OF PENNSYLVANIA Anita M. Begies, Appellant v. Upper Nazareth Township Zoning Hearing Board BEFORE: : : : : : : : No. 830 C.D. 2007 Submitted: October 30, 2007 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED DISSENTING OPINION BY JUDGE SMITH-RIBNER FILED: June 20, 2008 I respectfully disagree with the majority's decision to reverse the order of the Court of Common Pleas of Northampton County, which affirmed the order of the Upper Nazareth Township Zoning Hearing Board (Board). The Board found that the three lots owned by Anita Begies (Entireties Parcel, Triangular Parcel and "Anita Begies Trust" Parcel) had merged into one large lot and that her request for a variance to develop one undersized non-conforming lot (Entireties Parcel) must be denied where the Board in 2004 also had denied a variance for the very same lot. The majority finds, in direct contradiction to Board findings, that the evidence establishes Begies' intent to keep the parcels legally separate and distinct and, therefore, that the Board erred in applying the doctrine of merger to the Entireties Parcel and in denying Begies' request to develop it as a non-conforming lot. Because the trial court took no additional evidence in this case, the Court's review is limited to determining whether the Board committed an error of law or committed an abuse of its discretion. Dudlik v. Upper Moreland Township Zoning Hearing Board, 840 A.2d 1048 (Pa. Cmwlth. 2004). An abuse of discretion might be found where factual findings are not supported by substantial evidence in the record. Whitpain Township Board of Supervisors v. Whitpain Township Zoning Hearing Board, 550 A.2d 1355 (Pa. Cmwlth. 1988). The Board committed no error of law or an abuse of its discretion in ruling against Begies, and as such the trial court properly affirmed the Board's order. Its findings were supported by substantial evidence in the record. The Board noted that in the current proceedings initiated in March 2006 Begies requested a variance from the requirements of Section 900.6 of the Zoning Ordinance (related to minimum lot area and minimum lot witdth) and that she requested an interpretation of the applicability of Section 2100.8. It noted the critical issue concerning an interpretation of Section 2100.8 that provides in part: However, such a [non-conforming] lot must be in separate ownership and not contiguous with other lots of the same ownership. Should two (2) or more lots, or groups or portions of lots with contiguous frontage in a single ownership of record at the passage of this Ordinance, the lands shall be considered to be one (1) undivided parcel, though in its entirety some or all dimensional requirements may not be met. In no case shall a portion of the parcel be severed or used in a manner that diminishes compliance with the lot width and area requirements of the district within which it may be found. The Board argues that Begies failed to meet the requirement of the second sentence in Section 2100.8 in that the Entireties Parcel must be in separate ownership and not contiguous with other lots of the same ownership. Begies owned at least two other contiguous lots. Also, the Board found that current usage of the three parcels merged into one, which was used by Begies and her husband as their single-family residence, their driveway and yard area. The Board concluded that Section 2100.8 DAS-R - 8 did not apply because two or more lots have merged into one undivided parcel, and a variance was required to subdivide the Entireties Parcel into a separate building lot. Because the Board previously had denied Begies' variance request in April 2004 regarding the same property, she now was collaterally estopped from seeking that same relief in these proceedings. Begies did not appeal the earlier denial. The trial court noted the requirement of Section 2100.8 of the Zoning Ordinance that a non-conforming lot may not be contiguous to any other lot of common ownership, and it determined that because of this requirement Begies' ownership of the contiguous Triangular Parcel in and of itself was sufficient to prevent application of the special exemption in Section 2100.8. Despite the status of the Anita Begies Trust Parcel, the doctrine of merger prevented the Entireties Parcel from being classified as a non-conforming lot under Section 2100.8. The trial court concluded that because the doctrine of merger applied to prevent Begies from using the Entireties Parcel as a non-conforming lot and did not affect ownership rights, any issues related to alienability, enforcement of liens and the classification of the lots as marital or trust property did not need to be addressed. Begies indicated no change in title from the 2004 application, but she revised her position to state that the Anita Begies Trust Parcel containing her residence should be considered a separate and distinct lot because it is titled to the "Anita Begies Trust" rather than to Begies and her husband as entireties property. The Board noted inconsistencies in Begies' 2004 application and testimony and in the current proceedings. Significantly, the Board found that the Triangular Parcel, a triangular sliver of land fronting Almshouse Road and located to the south of the Anita Begies Trust Parcel, constituted an integral part of Begies' use of their residence. The Board also considered the fact that the Triangular Parcel touches the Entireties Parcel. DAS-R - 9 The Board expressly found that in proceedings pertaining to Begies' April 2004 request for a dimensional variance from requirements of Section 900.6 of the Zoning Ordinance she testified that she owned all three of the subject parcels and that they were used as her residence and yard; she made no reference to title being in trust or in individual names. The acting zoning officer refused Begies' application because the lot did not meet minimum lot area and minimum lot width requirements, thereby requiring the variance. The Board denied the variance to Begies to subdivide the property and to sell the Entireties Parcel as a separate lot. Begies did not appeal the Board's denial of a variance, and that decision is final. Determining that the ultimate issue relates to the significance of title to the residence registered in the name of "Anita Begies Trust" when the other two parcels are titled in the names of Begies and her husband as entireties property, the Board found that actual usage of the property is as a residence with surrounding yard area. That finding is based on evidence regarding the prior and current use of the other lots as a driveway and yard. Thus the Board found that actual usage of the property had merged into one lot for zoning purposes and that a subdivision was required to separate the Entireties Parcel from remaining lots. I note further that the Board is required to look at Begies' intent at the time of enactment of the Zoning Ordinance, which it did and correctly found that Begies' intent was to use all three of the lots as having been merged into one. Parkside Assocs., Inc. v. Zoning Hearing Board of Montgomery Township, 532 A.2d 47 (Pa. Cmwlth. 1987). Although not controlling in this matter because I agree with the Board and the trial court, I note the observation in Dudlik that more than mere titles in deeds must be examined in determining the question of single and separate ownership under an ordinance. In any event, because the Board's findings are supported by substantial evidence and it did not err in finding a merger DAS-R - 10 of the three lots, the trial court's order should be affirmed. I accordingly dissent from the majority's decision to reverse the order of the trial court. DORIS A. SMITH-RIBNER, Judge DAS-R - 11
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